UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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 or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
8669 COMMODITY CIRCLE, ORLANDO, FLORIDA 32819, (407) 363-7827
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(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
SCOTT E. JOHNSON, ESQ., GENERAL COUNSEL, 8669 COMMODITY CIRCLE, ORLANDO,
FLORIDA 32819, (407) 345-5300
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(Name and address, including zip code, and telephone number,
including area code, of agent for service)
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COPY TO:
BYRD F. MARSHALL, JR.,ESQ., GRAY, HARRIS & ROBINSON, P.A.,
201 EAST PINE STREET, SUITE 1200, ORLANDO, FLORIDA 32801, (407) 843-8880
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED REGISTERED OFFERING PRICE PER SHARE (1) AGGREGATE OFFERING PRICE (1) REGISTRATION FEE
- ------------------------------------- ------------- -------------------------- ---------------------------- ----------------
<S> <C> <C> <C> <C>
Class A Common Stock, $0.01 par 15,699,237 $ 3.96875 $ 62,306,346.84 $ 17,321.16
value shares
<FN>
(1) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(c) based on the average of the high and low prices of the
Registrant's Common Stock as reported on the New York Stock Exchange on November
9, 1998.
</FN>
</TABLE>
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a)
may determine.
<PAGE>
Subject to Completion, dated November 10, 1998
Prospectus
[LOGO]
PLANET HOLLYWOOD INTERNATIONAL, INC.
15,699,237 Shares
Class A Common Stock
CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 7 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED ON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This prospectus relates solely to the offer and resale by a certain
stockholder of up to 15,699,237 shares (the "Registered Shares") of the
Company's Class A Common Stock, par value $0.01 per share. We will not receive
any of the proceeds from the resale of the Registered Shares by the selling
stockholder.
The Registered Shares consist of 5,699,237 shares of the Company's
Class A Common Stock previously owned by the selling stockholder (the
"Previously Owned Shares") and 10,000,000 shares of the Class A Common Stock
(the "Purchased Shares") which the selling stockholder will acquire from Leisure
Ventures Pte Ltd., a corporation organized under the laws of Singapore
("Leisure"), pursuant to a Stock Purchase Agreement dated August 17, 1998 (the
"Stock Purchase Agreement"). The closing of the Stock Purchase Agreement is
conditioned upon certain events, including:
/bullet/ the expiration or earlier termination of the waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, and
/bullet/ a registration statement, of which this prospectus is a
part, covering the resale of the Purchased Shares by the
selling stockholder being declared effective by the SEC.
(All expenses relating to such registration will be paid by
Leisure.)
The selling stockholder may offer the Registered Shares for resale
through public or private transactions, on or off the New York Stock Exchange,
at prevailing market prices, or at privately negotiated prices.
Our Class A Common Stock is traded on the New York Stock Exchange under the
symbol "PHL." On August 17, 1998, the date of execution of the Stock Purchase
Agreement, the closing price for the Class A Common Stock as reported by the
NYSE was $ 5.50 per share. On November 9, 1998, the closing price for the Class
A Common Stock as reported by the NYSE was $ 4.00 per share.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING STOCKHOLDER MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS DECLARED
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS
NOT SOLICITING AN OFFER TO BUY THESES SECURITIES IN ANY STATE WHERE THE OFFER
OR SALE IS NOT PERMITTED.
The date of this prospectus is November 10, 1998.
<PAGE>
AVAILABLE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, therefore, file
reports, proxy statements and other information with the Securities and Exchange
Commission (the "SEC"). You can inspect and copy all of this information at the
Public Reference Room maintained by the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain information on the operation of the
Public Reference Room by calling the SEC at 1-800-SEC-0330. In addition, the SEC
maintains a web site that contains reports, proxy statements and information
statements and other information regarding issuers, such as us, that file
electronically with the SEC. The address of the web site is http://www.sec.gov.
This prospectus, which constitutes a part of a registration statement
on Form S-3 (the "Registration Statement") filed by us with the SEC under the
Securities Act of 1933, as amended (the "Securities Act"), omits certain of the
information set forth in the Registration Statement. Accordingly, you should
reference the Registration Statement and its exhibits for further information
with respect to us and the securities offered under this prospectus. Copies of
the Registration Statement and its exhibits are on file at the offices of the
SEC. Furthermore, statements contained in this prospectus concerning any
document filed as an exhibit are not necessarily complete and, in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement. You should rely only on the information or
representations provided in this prospectus and the Registration Statement. We
have not authorized anyone to provide you with different information.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us (File No. 000-28230) to incorporate by reference the
information we file with them, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, and
information that we later file with the SEC will automatically update and
supersede the information in this prospectus. Accordingly, we incorporate by
reference the documents listed below and any future filings we make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act:
(a) Annual Report on Form 10-K for the fiscal year ended December 28,
1997 (filed March 23, 1998), as amended by Form 10-K/A dated April
30, 1998 (filed April 30, 1998);
(b) Current Report on Form 8-K dated March 25, 1998 (filed March 26,
1998);
(c) Current Reports on Form 8-K dated March 9, 1998 (each filed March
10, 1998);
(d) Definitive Proxy Statement dated April 20, 1998, filed in
connection with the Company's 1998 Annual Meeting of Stockholders
(filed April 14, 1998);
(e) Registration Statement on Form S-4, as amended, dated May 1, 1998
(Registration No. 333- 51655);
(f) Quarterly Report on Form 10-Q for the quarterly period ended March
29, 1998 (filed on May 13, 1998);
(g) Current Report on Form 8-K dated July 27, 1998 (filed on July 30,
1998);
(h) Quarterly Report on Form 10-Q for the quarterly period ended June
28, 1998 (filed on August 11, 1998);
(i) Current Report on Form 8-K dated November 10, 1998 (filed on
November 12, 1998);
(j) Quarterly Report on Form 10-Q for the quarterly period ended
September 27, 1998 (filed on November 12, 1998); and
(k) the description of the Class A Common Stock which is contained in
its Registration Statement on Form 8-A filed on April 17, 1996.
1
<PAGE>
All reports and other documents we subsequently file pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus and before the filing of a post-effective amendment which indicates
that all securities offered under this prospectus have been sold or which
deregisters all securities remaining unsold, shall be deemed to be part of this
prospectus from the date of the filing of such reports and documents.
We will provide without charge to each person, including any beneficial
owner, to whom this prospectus is delivered, upon written or oral request, a
copy of any or all documents that are incorporated into this prospectus by
reference (other than exhibits to such documents unless such exhibits are
specifically incorporated by reference into the documents that this prospectus
incorporates). You should direct such requests to General Counsel, Planet
Hollywood International, Inc., 8669 Commodity Circle, Orlando, Florida 32819,
(407) 345-5300.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains certain forward-looking statements within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. Statements of plans, intentions and objectives by the Company and
statements of future economic performance contained in this prospectus should be
deemed to be forward-looking statements. Statements containing terms such as
"believes," "does not believe," "no reason to believe," "expects," "plans,"
"intends," "estimates," "anticipated," or "anticipates" are considered to
contain uncertainty and are forward-looking statements.
Forward-looking statements involve known and unknown risks and
uncertainties which may cause the Company's actual results in future periods to
differ materially from what is currently anticipated. Cautionary statements are
made in certain sections of this prospectus, including under "Risk Factors."
These cautionary statements should be read as being applicable to all related
forward-looking statements wherever they appear in this prospectus, the
materials referred to in this prospectus or the materials incorporated by
reference into this prospectus.
You are cautioned that no forward-looking statement is a guarantee of
future performance and you should not place undue reliance on any
forward-looking statement.
2
<PAGE>
THE COMPANY
AS USED IN THIS PROSPECTUS, THE "COMPANY" REFERS TO PLANET HOLLYWOOD
INTERNATIONAL, INC. AND ITS CONSOLIDATED SUBSIDIARIES FOR THE PERIOD AFTER
JANUARY 1, 1995 AND TO PLANET HOLLYWOOD, INC., PLANET HOLLYWOOD, LTD. AND
COMBINED ENTITIES (COLLECTIVELY, THE "PREDECESSORS") FOR ALL PERIODS BEFORE
JANUARY 1, 1995. THE COMPANY MAY ALSO BE REFERRED TO IN THIS PROSPECTUS AS "US"
"WE" AND "OUR." REFERENCES TO A FISCAL YEAR REFER IN EACH CASE TO THE YEAR
ENDING ON THE SUNDAY CLOSEST TO DECEMBER 31 OF EACH YEAR, EXCEPT THAT REFERENCES
TO FISCAL 1993 REFER TO THE FISCAL YEAR ENDED DECEMBER 31, 1993. "PLANET
HOLLYWOOD", "OFFICIAL ALL STAR CAFE" AND "SOUND REPUBLIC" ARE REGISTERED
TRADEMARKS OF THE COMPANY. IN EVALUATING THE COMPANY'S BUSINESS, YOU SHOULD
CAREFULLY CONSIDER THE INFORMATION SET FORTH UNDER THE HEADING "RISK FACTORS"
BEGINNING ON PAGE 7.
IN GENERAL
We are a creator and worldwide developer of consumer brands that
transcend international barriers and capitalize on the universal appeal of
movies, sports and other entertainment-based themes. Since we commenced
operations in October 1991, the PLANET HOLLYWOOD name and distinctive logo
design have become among the most widely-recognized trademarks in the world. To
date, we have promoted our brands primarily through the operation of theme
restaurants, most notably PLANET HOLLYWOOD and the OFFICIAL ALL STAR CAFE. Each
of these concepts provide a unique dining and entertainment experience in a
high-energy environment and, through their retail stores, offer a broad
selection of merchandise displaying our logos. During fiscal 1997, more than 20
million people visited our 53 Company-owned and 34 franchised restaurant units
located in 29 countries throughout the world.
We had revenues of approximately $475.1 million in fiscal 1997.
An important part of our strategy is to promote our brands through the
active involvement as stockholders of some of the world's most famous movie
stars, including Arnold Schwarzenegger, Sylvester Stallone, Bruce Willis, Demi
Moore and Whoopi Goldberg, and sports stars, including Andre Agassi, Wayne
Gretzky, Ken Griffey, Jr., Joe Montana, Shaquille O'Neal, Monica Seles and Tiger
Woods. Our celebrity stockholders generate significant media attention and
publicity for the PLANET HOLLYWOOD and OFFICIAL ALL STAR CAFE brands. We are
continuing to expand our roster of celebrity stockholders, with an emphasis on
new, up-and-coming stars, in order to appeal to broader segments of consumers.
We are in the process of launching our third major theme concept, a
tribute to the world of live music, under the brand name "SOUND REPUBLIC." In
June 1998, we announced that we had joined forces with MTV: Music Television, a
division of Viacom, Inc. ("MTV"), to help promote and develop the SOUND REPUBLIC
brand. MTV will be a minority investor in SOUND REPUBLIC and has agreed to help
promote and develop the SOUND REPUBLIC brand with regular broadcasts of live
music performances and other related programming from SOUND REPUBLIC locations
worldwide. As with our two existing theme concepts, SOUND REPUBLIC is expected
to have substantial celebrity involvement and a distinctive brand name and logo
that can be applied to restaurants, lodging and merchandise.
We will initially promote SOUND REPUBLIC through theme restaurants with
integrated retail stores. Each of the SOUND REPUBLIC restaurants will feature
live performances by a broad range of musical artists, either in a connected
club facility or in an integrated stage area within the restaurant itself. Our
first unit in Leicester Square in London recently held its grand opening to the
public on October 17, 1998. We expect to locate our second unit in Times Square
in New York City. Each of these two units is expected to have approximately
15,000 square feet of restaurant space seating up to 350 people with an adjacent
live music club with room for approximately 600-800 people.
3
<PAGE>
Our theme restaurants are characterized by distinctive design features
and are generally located at high profile sites or in major tourist markets.
Units generally range in size from approximately 12,000 to 36,000 square feet
and in seating capacity from 230 to 600 persons, and offer high-quality, popular
cuisine, attentive service and an atmosphere of excitement created by combining
unique layouts and decor with custom-designed videos and audio soundtracks. Each
unit prominently displays memorabilia associated with its theme, including
costumes and props from popular movies (in the case of PLANET HOLLYWOOD units)
and celebrity uniforms and athletic equipment (in the case of OFFICIAL ALL STAR
CAFE units). Each unit's integrated retail store offers premium-quality fashion
merchandise, such as jackets, T-shirts, sweatshirts and hats, as well as other
souvenir items. The OFFICIAL ALL STAR CAFE units also offer athletic apparel for
various sports, such as tennis, basketball and baseball, as well as duffle bags
and equipment bags, all of which incorporate an OFFICIAL ALL STAR CAFE "team"
theme. Sales of merchandise yield higher operating margins than do food and
beverage sales and provide additional off-site promotion and retail distribution
opportunities for our brands.
Our strategy is to capitalize on our brand recognition across a wide
range of businesses in addition to theme restaurants. Accordingly, we have
embarked upon several strategic ventures in movie theaters, lodging, gaming and
consumer products. These ventures, which we are generally developing in
association with other companies that are leaders in their respective
industries, include the following:
* MOVIE THEATERS. We have formed a 50/50 joint venture with AMC
Entertainment, Inc. ("AMC"), one of the nation's leading motion picture
exhibitors, that will develop, own and operate a series of
multi-screen, movie theater megaplexes under the brand name PLANET
MOVIES BY AMC. Each megaplex facility will feature as many as 30
screens and a dramatically designed entertainment center that will
include restaurants, including in most facilities a PLANET HOLLYWOOD
unit and/or an OFFICIAL ALL STAR CAFE unit, as well as various
refreshment and merchandise kiosks. The first PLANET MOVIES BY AMC
multi-screen megaplex, which is projected to open in the first half of
1999 near Columbus, Ohio, will occupy approximately 160,000 square feet
with total seating capacity for approximately 6,000 persons, and will
include an approximately 7,500 square foot PLANET HOLLYWOOD restaurant
and a similar size OFFICIAL ALL STAR CAFE restaurant, each with its own
merchandise store, and various refreshment kiosks.
* SOUND REPUBLIC HOTEL AND CASINO. We and a subsidiary of Aladdin
Gaming Holdings, LLC ("Aladdin") previously announced an intention to
form a 50/50 joint venture to construct, own and operate a music-themed
hotel, casino and entertainment center (the "Las Vegas Project") as
part of a 35-acre complex on the site of the former Aladdin hotel and
casino at the center of Las Vegas Boulevard (the "Strip") in Las Vegas,
Nevada. On September 17,1998, Aladdin announced that it had not yet
concluded negotiations with us concerning the Las Vegas Project and
that it intended to pursue other prospective joint venture partners for
the development, construction and opening of a hotel and casino with a
music entertainment theme at the Strip. Aladdin did state that it would
renew discussions with us if and when it was appropriate.
If completed, the Las Vegas Project, originally targeted for
completion in 2000, is to be an extension of our SOUND REPUBLIC brand
and is expected to include a 1,000-room hotel, a 40,000 square foot
casino containing approximately 1,500 slot machines and 50 gaming
tables, a SOUND REPUBLIC themed restaurant with a merchandise store and
a live performance club facility accommodating 1,000 people, as well as
additional restaurants, an outdoor swimming pool and other amenities.
In addition to our participation in the Las Vegas Project's profits
through our 50% equity interest in the joint venture, we would also
receive license fees for the use of the SOUND REPUBLIC name and logo
and consulting fees for the provision of certain services. The Las
Vegas Project is subject to the resumption of negotiations with
Aladdin, the execution of definitive documentation and the receipt of
necessary construction financing.
4
<PAGE>
* OFFICIAL ALL STAR HOTEL. In the fall of 1997, we acquired a 20%
equity interest in a joint venture with Vornado Realty Trust and an
affiliate of Mr. Ong Beng Seng, one of our directors and principal
stockholders. In September 1997, the joint venture acquired the Hotel
Pennsylvania, a 20-story, 1,700-room hotel (once known as the Statler
Hotel) located directly opposite the entrance to New York City's famed
Madison Square Garden. While continuing its normal operations, the
hotel, which is New York City's fourth largest, is intended to be
renovated and renamed the OFFICIAL ALL STAR HOTEL. The joint venture
expects that the renovated guest rooms and common areas will feature
theming that celebrates the world of sports, including memorabilia from
the Company's sports celebrity stockholders and other prominent
athletes and sports legends. In addition to its guest rooms,
restaurants and banquet and conference facilities, the remodeled hotel
(like its predecessor) will contain approximately 400,000 square feet
of rentable retail space. In addition to our participation in the
hotel's profits through our 20% equity interest in the joint venture,
we will receive license fees for the use of the OFFICIAL ALL STAR name
and logo. In the spring of 1998, Ong Beng Seng's affiliate sold its
interest in the OFFICIAL ALL STAR HOTEL to Vornado Realty Trust for a
profit.
* PLANET HOLLYWOOD HOTEL. We have acquired a 20% equity interest in a
joint venture with several prominent real estate developers to
construct and own a 50-story, 560-room, movie-themed hotel at the
intersection of Broadway and 47th Street in New York City's Times
Square redevelopment area. The joint venture expects that the new
PLANET HOLLYWOOD HOTEL will be characterized by striking, modern decor
and will include motion picture memorabilia from our collection. Upon
its completion the hotel will also become the site for our new
Company-owned PLANET HOLLYWOOD flagship restaurant with seating for
more than 400 patrons that will replace our existing restaurant on West
57th Street in New York City. In addition to our participation in the
hotel's profits through our 20% equity interest in the joint venture,
we will receive license fees for the use of the PLANET HOLLYWOOD name
and logo.
* COOL PLANET ICE CREAM. We plan to develop and open COOL PLANET ice
cream and dessert units that will feature COOL PLANET ice cream
products. The units generally will range in size from 800 to 1,400
square feet, will have counter service and a small table seating area
and will feature unique decor derived from the PLANET HOLLYWOOD theme
concept. COOL PLANET ice cream will be added to the menu in our PLANET
HOLLYWOOD restaurants and is anticipated to be sold in PLANET MOVIES BY
AMC megaplexes. During the summer of 1998, we opened our first two COOL
PLANET units in Santa Monica and Irvine, California. We anticipate
opening an additional COOL PLANET unit in Anaheim, California during
the fall/winter of 1998. Whoopi Goldberg, one of our principal
celebrity stockholders, has agreed to serve as spokesperson for COOL
PLANET products and COOL PLANET units.
In June 1998, we announced that Cool Planet, Inc., one of our
subsidiaries, entered into an agreement with Host Marriott Services
Corporation, the nation's largest travel and entertainment
concessionaire, to form a joint venture which will develop COOL PLANET
locations in select Host Marriott Services' airports, travel plazas and
mall locations. Under such agreement, the joint venture may develop up
to ten COOL PLANET locations.
5
<PAGE>
OTHER RECENT DEVELOPMENTS
On March 25, 1998, we issued $250.0 million of our12% Senior
Subordinated Notes due 2005 (the "Notes"). Interest on the Notes is payable
semi-annually in arrears on April 1 and October 1 of each year, commencing on
October 1, 1998. The documents governing the Notes contain certain covenants
which, among other things, limit our ability to:
/bullet/ issue additional debt and stock,
/bullet/ pay dividends, and
/bullet/ sell assets.
At the same time as the Notes offering, we replaced our existing $155.0
million credit facility with a $65.0 million multi-currency revolving credit
facility and a $35.0 million LIBOR-based leveraged lease facility (the "Credit
Facility"). The Credit Facility fees include an annual facility fee on the
utilized revolving credit and a commitment fee on the unused revolving credit.
Interest rates are variable, with either prime or LIBOR indexes. The Credit
Facility also provides for the issuance of up to $10.0 million of letters of
credit and up to $25.0 million of multi-currency advances. The Credit Facility
matures on March 25, 2000 provided, however, that we may extend the maturity
date to March 25, 2001 if we meet certain financial criteria. Currently, we are
not in compliance with certain financial covenants of the Credit Facility and we
are in negotiations regarding the amendment and/or waiver of certain terms of
the Credit Facility, which if successful, will cure such noncompliance. We
expect to conclude such negotiations by the end of November 1998. See "Risk
Factors - Leverage; Ability to Service Debt" beginning on page 7.
In July 1998, we announced that we had retained Goldman Sachs & Co. to
join Bear Stearns & Co., Inc., who we had retained five months earlier, in
connection with a review of our financial and strategic alternatives designed to
maximize long-term stockholder value.
On July 27, 1998, we announced the appointment of William H. Baumhauer
to the position of President and Chief Operating Officer. Mr. Baumhauer is
responsible for all Company-wide operations and oversees and manages the
development of strategic joint ventures, extensions of our brands and new
business opportunities. Mr. Baumhauer also evaluates our activities to identify
opportunities for cost savings and increased operating efficiencies. Robert Earl
continues as our Chief Executive Officer and is able to devote greater attention
to strategic activities and the creative and marketing aspects of our business.
On September 17, 1998, at a regular meeting of our Board of Directors,
the Board increased the number of directors on the Board from 9 to 10, and
elected William Baumhauer to fill such vacancy. Mr. Baumhauer will serve as a
Class I director and his term will expire in 2000. In addition, the Board
expanded our Audit Committee from 4 to 5 members, consisting of Claudio
Gonzalez, Michael Montague (new member), Ong Beng Seng, Isadore Sharp and
Michael Tarnopol. Finally, the Board elected Robert Earl, Michael Montague (new
member) and Isadore Sharp to serve as members of our Compensation Committee.
On November 10, 1998, at a special meeting of our Board of Directors,
Keith Barish resigned as Chairman of the Board, effective November 11, 1998. Mr.
Barish cited the recent addition of William Baumhauer as a timely opportunity
for him to step down as Chairman. The Board elected Robert Earl to serve as our
Chairman of the Board of Directors.
------------------------------------
We are a Delaware corporation and our principal executive offices are
located at 8669 Commodity Circle, Orlando, Florida 32819. Our telephone number
is (407) 363-7827.
6
<PAGE>
RISK FACTORS
AN INVESTMENT IN THE REGISTERED SHARES INVOLVES A HIGH DEGREE OF RISK.
YOU SHOULD CAREFULLY REVIEW THE INFORMATION SET FORTH BELOW, AS WELL AS OTHER
INFORMATION APPEARING ELSEWHERE IN THIS PROSPECTUS, BEFORE MAKING AN INVESTMENT
IN THE REGISTERED SHARES. THE FOLLOWING ARE THE MOST SIGNIFICANT RISK FACTORS
THAT WE BELIEVE ARE MATERIAL TO INVESTORS WHO PURCHASE OR OWN OUR CLASS A COMMON
STOCK (WHICH WE REFER TO AS THE "CLASS A COMMON STOCK").
PARTICIPATION IN JOINT VENTURES. We have begun, and we intend to
continue, investing a substantial portion of the proceeds of our recent $250
million Notes offering in, and will have continuing obligations to, entities
that are not wholly owned or controlled by us, including the joint venture
vehicles for:
/bullet/ PLANET MOVIES BY AMC,
/bullet/ the Las Vegas Project (see discussion in "The
Company - *Sound Republic Hotel and Casino"
beginning on page 4),
/bullet/ the OFFICIAL ALL STAR HOTEL and
/bullet/ the PLANET HOLLYWOOD HOTEL.
In addition, we may incur obligations to third parties under guarantees
of indebtedness and other obligations of various joint venture entities. Certain
of these entities have incurred and, in the future, may incur indebtedness that
contains terms limiting or prohibiting the payment of dividends or distributions
to the equity investors in such entities (including us). In addition, because we
do not control distributions by these entities, there can be no assurance that,
even if funds were available for distribution by these entities, we will receive
any distributions from these entities.
LEVERAGE; ABILITY TO SERVICE DEBT. As of our third fiscal quarter ended
September 27, 1998, our indebtedness totaled approximately $258.9 million. At
that date, our stockholders' equity was approximately $327.0 million. Subject to
certain restrictions contained in the documents governing the Notes, we may
incur additional indebtedness from time to time. As a consequence of the
indebtedness represented by the Notes and indebtedness incurred pursuant to the
Company's Credit Facility (if any):
/bullet/ a substantial portion of our cash flow from operations
must be dedicated to debt service and will not be
available for other purposes,
/bullet/ our ability to obtain additional debt financing in the
future for working capital, capital expenditures or
acquisitions may be limited, and
/bullet/ our flexibility to react to changes in the industry and
changing business and economic conditions may be
limited.
Our ability to pay interest on the Notes and to satisfy our other debt
obligations will depend upon our future operating performance, which may be
affected by prevailing economic conditions and financial, business and other
factors, many of which are beyond our control. We currently anticipate that our
operating cash flow will be sufficient to meet our operating expenses and to
service our debt obligations as they become due. If we are unable to service our
indebtedness, we will be forced to adopt one or more other strategies that may
include actions such as reducing or delaying capital expenditures, selling
assets, restructuring or refinancing its indebtedness or seeking additional
equity capital. You cannot be sure that any of these strategies could be
effected on satisfactory terms, if at all.
As a result of operating losses experienced in the third quarter of
fiscal 1998, we are currently not in compliance with certain financial covenants
of the Credit Facility (specifically, our Fixed Charge Coverage Ratio and our
Total Funded Debt to Consolidated EBITDA Ratio, as such terms are defined in
7
<PAGE>
the Credit Facility documents). While we do not owe any amounts under the
revolving credit portion of the Credit Facility, approximately $35 million is
outstanding under the leveraged lease portion of the Credit Facility. We are
currently in negotiations regarding the amendment and/or waiver of certain terms
of the Credit Facility, which, if successful, will cure our noncompliance. We
expect to conclude such negotiations by the end of November 1998. You cannot be
sure, however, that we will be able to effect such amendments and/or waivers to
the Credit Facility on terms satisfactory to us, if at all. If we are unable to
effectuate such amendments and/or waivers, we will repay all amounts outstanding
under the Credit Facility and/or arrange alternative financing with another
lender. We are currently in full compliance with the terms of the documents
governing the Notes.
ABILITY TO MANAGE GROWTH. We have experienced substantial growth in a
relatively short period of time, including an increase in the number of
Company-owned and franchised units. This rapid rate of growth has imposed, and
our new SOUND REPUBLIC concept and strategic ventures may continue to impose,
significant strains on our management. Our failure to adequately manage our
growth, or unexpected difficulties encountered during expansion of our
activities, could have a material adverse impact on our results of operations
and financial condition.
DECLINES IN "SAME UNIT" REVENUES. We operate in an increasingly
competitive environment with numerous competing themed restaurants entering many
of our existing markets and, as we continue to expand into smaller markets,
revenues of Company-owned units have declined on a "same unit" basis:
APPROXIMATE DECLINE IN
COMPARABLE PERIOD "SAME UNIT" REVENUES
----------------- ----------------------
Fiscal 1997 to Fiscal 1996 11%
1st Quarter Fiscal 1998 to 1st Quarter Fiscal 1997 13%
2nd Quarter Fiscal 1998 to 2nd Quarter Fiscal 1997 17%
3rd Quarter Fiscal 1998 to 3rd Quarter Fiscal 1997 20%
Although we are undertaking several initiatives to improve our
performance, you cannot be sure that these initiatives will be successful and
that "same unit" revenues will not continue to decline. In addition, during the
initial six to twelve months following its opening, a new unit typically
realizes higher revenues than in subsequent periods of operation. The first six
months of a unit's operations are not included in the "same unit" analysis.
In fiscal 1997, 18 of our 53 Company-owned units were included in the
"same unit" analysis and we expect 26 units to be included in fiscal 1998. Our
francised units have also experienced declines in "same unit" revenues and you
cannot be sure that "same unit" revenues for such units will not continue to
decline.
INDUSTRY CONDITIONS AND COMPETITION. The restaurant and retail
merchandising industries are affected by changes in consumer tastes and by
international, national, regional and local economic conditions and demographic
trends. Discretionary spending priorities, traffic patterns, tourist travel,
weather conditions, employee availability and the type, number and location of
competing restaurants, among other factors, also directly affect the performance
of our units. Changes in any of these factors in the markets where we currently
operate units could adversely affect our results of operations. Moreover, the
theme restaurant industry is relatively young, is particularly dependent on
tourism and has seen the emergence of a number of new competitors. The
restaurant and retail merchandising industries are highly competitive based on
the type, quality and selection of the food or merchandise offered, price,
service,
8
<PAGE>
location and other factors. Many well-established companies with greater
financial, marketing and other resources and longer operating histories than us
compete with us in many markets. In addition, some competitors have design and
operating concepts similar to ours. You cannot be sure that we will be able to
respond to various competitive factors affecting the restaurant and retail
industries.
The hotel/casino industry in Las Vegas is highly competitive. Should
negotiations between us and Aladdin be renewed regarding the Las Vegas Project,
or if we were to pursue a different hotel/casino venture in Las Vegas, such
venture would be competing with many other hotels located on the Strip and with
other major hotels in downtown Las Vegas. Direct competitors of any such venture
could include the following theme-oriented resorts, any of which may have
greater financial and other resources than our venture:
* Caesar's Palace Hotel * The Mirage
* Treasure Island Hotel and Casino * MGM Grand Hotel and Casino
* Hard Rock Hotel and Casino
We may also experience additional competition from several new major resort
projects under construction and the expansion of several existing resorts, which
are expected to add approximately 20,000 hotel rooms to the Las Vegas inventory
by 1999. The future operating results of any Las Vegas hotel/casino venture in
which we participate could be materially adversely affected by such competitors
and excess hotel and gaming capacity generally. The hotel/casino operations of a
Las Vegas venture would also compete, to some extent, with other hotel/casino
facilities in Nevada, other states which authorize gaming and elsewhere in the
world. In light of the recent legalization in several states of casino gaming in
specified areas and the passage in the United States Congress of the Indian
Gaming Regulatory Act in 1998, we expect many competitors to enter the
hotel/casino industry, some of which may have greater financial and other
resources than us. Such proliferation of gaming activities could materially
adversely affect the business of a Las Vegas hotel/casino venture.
The motion picture exhibition industry is affected by a number of
factors, including the availability of desirable motion pictures and their
performance in the exhibitors' markets. Poor performance of, or disruption in
the production of or access to, motion pictures could adversely affect the
performance of the PLANET MOVIES BY AMC joint venture. In addition, were the
joint venture to experience poor relationships with one or more major motion
picture distributors, its business could be adversely affected. The joint
venture will be subject to competition with other exhibitors in obtaining films,
attracting patrons and securing new theater sites. In addition, the joint
venture's theaters will face competition from a number of non-theatrical motion
picture delivery systems, such as pay television, pay-per-view and home video
systems, and from other forms of entertainment that compete for the public's
leisure time and disposable income.
RISK OF NEW VENTURES. Our new SOUND REPUBLIC concept and our various
new strategic ventures are unproven. We cannot assure you that SOUND REPUBLIC or
any new strategic venture pursued by us will be successful or that any such
strategic venture will contribute to our revenues and cash flow. Our OFFICIAL
ALL STAR CAFE theme concept remains in a relatively early stage of development
and has not yet met our original expectations. In light of Aladdin's recent
announcement regarding the failure to conclude negotiations with us concerning
the Las Vegas Project, you cannot be sure that the Las Vegas Project will be
pursued. See "The Company - * Sound Republic Hotel and Casino" beginning on page
4.
Furthermore, in connection with Mr. Baumhauer's appointment as
President and Chief Operating Officer, all of our activities and strategic
initiatives are being reviewed in connection with an attempt to
9
<PAGE>
identify opportunities for cost savings and increased operating efficiencies.
You cannot be sure, therefore, that any of our ventures will continue as
planned.
RISKS ASSOCIATED WITH INTERNATIONAL OPERATIONS. In fiscal 1997,
revenues from foreign units constituted approximately $140.2 million (or 29%) of
our total revenues:
/bullet/ Revenues from Company-owned units outside the United States
-- approximately 25% of total revenues.
/bullet/ Royalties and initial franchise fees from foreign franchised
units -- approximately 4% of total revenues.
We also realize income from foreign units in which we own a minority interest.
Foreign operations present risks that are different than those
encountered in North America, including potential political, social and economic
instability (such as the recent turmoil in Asia and Russia where a total of 14
of our franchised units are located, and the recent bombing of a franchised unit
in South Africa). Uncertain economic conditions in certain foreign markets also
may adversely affect the operating results of franchised units in those markets
as well as the collectibility of receivables from those units.
In addition, our international operations expose us to fluctuations
between the U.S. dollar, which is the reporting currency in our financial
statements, and the local currencies in which units outside the United States
transact business and on which royalties from franchises located outside the
United States are based. We have not historically engaged in any significant
hedging activities with respect to our non-U.S. dollar operations.
You cannot be sure that we will not experience adverse results in our
foreign operations or that significant currency fluctuations will not adversely
affect our reported results. International commercial activities may also be
limited or disrupted by the imposition of government controls, unique license
requirements, political instability, trade restrictions, changes in tariffs or
taxes, regional economic conditions (such as currently in Asia), currency
fluctuations and changes, and difficulties in staffing and managing such
complexities.
DEPENDENCE ON KEY EXECUTIVES. Our success has depended to a significant
extent upon the contributions of our three most senior executives:
<TABLE>
<CAPTION>
EXPIRATION OF CURRENT TERM
NAME POSITION OF EMPLOYMENT AGREEMENT
---- -------- -----------------------
<S> <C> <C>
Robert Earl Chief Executive Officer, December 2001
Chairman of the Board and Director
William Baumhauer President and Chief Operating Officer July 2001
Keith Barish Director Not applicable
</TABLE>
Messrs. Earl and Barish are also founding and principal stockholders of
the Company. Mr. Barish resigned as Chairman of the Board of Directors effective
November 11, 1998. Mr. Barish, who will continue as a director, cited the recent
addition of William Baumhauer as a timely opportunity for him to step down as
Chairman. The Board subsequently elected Robert Earl to serve as our Chairman of
the Board of Directors. In connection with his resignation, Mr. Barish
terminated his employment agreement with us. You cannot be sure that Mr. Barish
will remain as one of our Directors. In the event of Mr. Barish's or any of the
other senior executives' departure from the Company, you cannot be sure that we
would be able to attract or retain suitable successors. Any such departure could
materially adversely affect us. For example, pursuant to certain of our key
contractual arrangements, including the lease for the PLANET HOLLYWOOD unit in
Orlando, Florida, upon the death, physical or mental incapacitation or
retirement of
10
<PAGE>
Mr. Earl, we may lose certain of the substantial benefits that have contributed
to our success or that are expected to contribute to any of our future growth.
We have obtained a $25 million key man life insurance policy covering Mr. Earl,
but you cannot be sure that the coverage provided by such policy will be
sufficient to compensate us for the loss of Mr. Earl's services. Our future
success will depend, in part, on our continuing ability to attract, retain and
motivate qualified personnel.
FLUCTUATIONS IN QUARTERLY RESULTS OF OPERATIONS; SEASONALITY. As we
enter new markets and develop new concepts, quarterly results may fluctuate more
significantly. Moreover, as a result of the revenues associated with each new
Company-owned unit and the recognition of franchise fees, the timing of new unit
openings may result in significant fluctuations in quarterly results. In
addition, our revenues have generally been seasonal due to the greater number of
tourists who patronize our units during the summer and year-end holiday seasons.
Although units in certain locations are affected by different seasonal
influences, we have historically experienced our strongest operating results
from June through August. You cannot be sure, however, that any such trend will
continue.
FLUCTUATIONS IN DIRECT MERCHANDISE SALES. During the past two fiscal
years, we have sold various items of its branded merchandise directly to
specialty and other retailers with a worldwide distribution and marketing
presence to increase the exposure of our brands to consumers. Direct sales of
merchandise have generally been made on an opportunistic basis and you cannot be
sure that such direct sales, if any, will continue at historical levels.
CONTROL BY PRINCIPAL STOCKHOLDERS. Before and after the closing of the
Stock Purchase Agreement, three of our directors and the selling stockholder
beneficially own the following percentages of the outstanding Class A Common
Stock:
<TABLE>
<CAPTION>
APPROXIMATE PERCENTAGE BENEFICIALLY
OWNED BEFORE AND AFTER CLOSING OF
STOCK PURCHASE AGREEMENT
------------------------------------
PERSON/ENTITY AND POSITION BEFORE AFTER
- -------------------------- ------ -----
<S> <C> <C>
Robert Earl - Chief Executive Officer, Chairman of the Board
and Director (1) 23% 23%
Keith Barish - Director (1) 23% 23%
Ong Beng Seng - Director (1) 23% 13%
Kingdom Planet Hollywood, Ltd. - the selling stockholder (2) 6% 16%
<FN>
(1) Information concerning these individuals has been summarized from our
Definitive Proxy Statement dated April 20, 1998, a document which is
incorporated by reference into this prospectus. See the Definitive
Proxy Statement for a more detailed description of these stock
holdings.
(2) See "Selling Stockholder" beginning on page 14.
</FN>
</TABLE>
Accordingly, until there is a substantial decrease in the percentage of
the outstanding shares of Class A Common Stock held by such stockholders, they
will continue to have significant influence over our affairs and, if they choose
to act together, will be able to elect all the members of our Board of Directors
and influence significantly the approval of important corporate transactions and
other matters requiring stockholder approval without the approval of minority
stockholders.
11
<PAGE>
YEAR 2000 COMPLIANCE. Year 2000 compliance is the ability of computer
hardware and software to respond to the problems posed by the fact that computer
programs have traditionally been written using two digits rather than four to
define the applicable year. As a consequence, unless modified, computer systems
will not be able to differentiate between the year 2000 and 1900. Failure to
address this problem could result in system failures and the generation of
erroneous data. In 1997, we assessed our own year 2000 compliance and, based on
such assessment, we expect to upgrade our critical computer systems to make them
year 2000 compliant before the end of fiscal 1999 without material expenditures.
We may, however, be adversely affected to the extent that other entities that do
business with us, particularly credit card processors, are unable to achieve
year 2000 compliance on a timely basis.
GOVERNMENT REGULATION. The restaurant industry and, to a lesser extent,
the retail merchandising industry, are subject to numerous Federal, foreign,
state and local government regulations, including those relating to:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
* the preparation and sale of food * the sale of alcoholic beverages
* building and zoning requirements * sanitation
* environmental protection * relationships with employees
* minimum wage requirements * unemployment
* overtime * workers' compensation
* working and safety conditions * citizenship requirements
</TABLE>
Any change in the current status of such regulations, including an increase in
the minimum wage, employee benefit costs, workers' compensation insurance rates
or other costs associated with employees, could substantially increase our
compliance and labor costs.
We may also be subject in certain states to "dram-shop" statutes, which
generally provide a person who is injured by an intoxicated person the right to
recover damages from an establishment that wrongfully served alcoholic beverages
to the intoxicated person.
In addition, any gaming facilities that would form a part of a Las
Vegas hotel/casino venture would be subject to extensive regulation by the state
and local regulatory authorities of the State of Nevada. This would include
regulation of the ownership of our securities. The Nevada State Gaming Control
Board and the Nevada Gaming Commission and other local, county and state
regulatory agencies may, in compliance with certain statutory and regulatory
procedures, limit, condition, suspend or revoke a license or approval to own our
stock for any cause deemed reasonable by such licensing agency. Substantial
fines for each violation of the gaming laws or regulations could be levied
against us and the persons involved. Furthermore, a supervisor could be
appointed by a state court at the request of the Nevada Commission to operate
any nonrestricted gaming establishment operated by us if the licenses held by us
are revoked, suspended or otherwise lapse. In such extraordinary circumstances,
earnings generated by gaming operations during a supervisor's appointment
(except for reasonable rental value) could be forfeited to the State of Nevada.
You cannot be sure that the Company or any Las Vegas hotel/casino venture will
maintain any of the required licenses, registrations, findings of suitability,
approvals and permits or that such gaming licenses, permits, etc. will be
obtained or renewed on a timely basis.
RELATED PARTY TRANSACTIONS. In the past, we have entered into business
transactions with certain of our principal stockholders, including the selling
stockholder, and may continue to enter into such transactions in the future. See
"Selling Stockholder" beginning on page 14. We have no current plans to do so
and our policy is not to enter into transactions with related persons unless the
terms thereof
12
<PAGE>
are at least as favorable to us as those that could be obtained from
unaffiliated third parties and/or are approved by a majority of our
disinterested directors.
SHARES ELIGIBLE FOR FUTURE SALE. At November 9, 1998, we had
approximately 97,221,632 shares of Class A Common Stock outstanding. Of the
shares of Class A Common Stock currently outstanding, we estimate that there are
approximately 59,000,000 unregistered shares of Class A Common Stock
outstanding, excluding the Registered Shares, some of which may be freely traded
or may be traded under certain volume and other restrictions set forth in Rule
144 promulgated under the Securities Act. In connection with Keith Barish's
resignation as Chairman of the Board of Directors, however, we anticipate that
we will file with the SEC a registration statement on Form S-3 registering the
resale of approximately 10,000,000 shares of Class A Common Stock currently held
by Mr. Barish. It is expected that the resale of these shares will be subject to
certain transfer restrictions set forth in an agreement between us and Mr.
Barish. We refer you to such agreement, which has been filed as an exhibit to
our Current Report on Form 8-K dated November 10, 1998 (filed with the SEC on
November 12, 1998), and which is incorporated herein by reference.
We have reserved the following shares of Class A Common Stock for
issuance pursuant to the following stock plans:
1995 Stock Award and Incentive Plan 7,000,000 shares
1995 Celebrity Stock Award and Incentive Plan 6,000,000 shares
Employee Stock Purchase Plan 2,000,000 shares
At October 30, 1998, approximately 10,817,288 shares were subject to
outstanding options with a weighted average exercise price of approximately
$9.29 per share. Since both of the incentive plans have been registered on Form
S-8 with the SEC, shares of Class A Common Stock issued in conjunction with the
incentive plans are generally eligible for resale in the open market.
No prediction can be made as to the effect, if any, that sales or
resales of shares of Class A Common Stock under Rule 144 or otherwise, or the
future availability of such shares for sale or resale, will have on the market
price of the Class A Common Stock. Sales or resales of substantial amounts of
Class A Common Stock in the public market, or the perception that such sales or
resales could occur, could adversely affect prevailing market prices for Class A
Common Stock.
CERTAIN ANTI-TAKEOVER PROVISIONS. Our Restated Certificate of
Incorporation (the "Restated Certificate") and Third Amended and Restated Bylaws
(the "Bylaws") contain certain provisions that may discourage other persons from
attempting to acquire control of us. These provisions include, but are not
limited to:
/bullet/ a staggered Board of Directors,
/bullet/ the authorization of the Board of Directors to issue
shares of undesignated preferred stock in one or more
series without the specific approval of the holders of
Class A Common Stock,
/bullet/ the establishment of advance notice requirements for
director nominations and actions to be taken at annual
meetings, and
/bullet/ the requirement that two-thirds of the stockholders
eligible to vote are required to approve any change to
the Bylaws or certain provisions of the Restated
Certificate.
In addition, the Restated Certificate and the Bylaws permit special
meetings of the stockholders to be called only by our Chief Executive Officer or
upon the request of a majority of the Board of Directors, and deny stockholders
the ability to call such meetings. Such provisions, as well as the provisions of
Section 203 of the Delaware General Corporation Law (to which we are subject),
could impede a merger, consolidation, takeover or other business combination
involving us or discourage a potential acquiror from making a tender offer or
otherwise attempting to obtain control of us. In certain
13
<PAGE>
circumstances, the fact that corporate devices are in place that will inhibit or
discourage takeover attempts could reduce the market value of Class A Common
Stock.
NO FORESEEABLE DIVIDENDS. We have never paid cash dividends on our
Class A Common Stock and we do not anticipate paying any cash dividends in the
foreseeable future. We intend to retain future earnings for reinvestment in our
business. Any future determination to pay cash dividends will be at the
discretion of our Board of Directors and will be dependent upon our financial
condition, results of operations, capital requirements and such other factors as
the Board of Directors deems relevant.
VOLATILITY OF STOCK PRICE. The Class A Common Stock has experienced
substantial price volatility, and such volatility may continue to occur in the
future. Additionally, the stock market has from time to time experienced
significant price and volume fluctuations that are unrelated to the operating
performance of particular companies. These broad market fluctuations may
adversely affect the market price of the Class A Common Stock. In addition to
such broad market fluctuations, factors such as the following may have a
significant effect on the market price of the Class A Common Stock:
/bullet/ fluctuations in our operating results,
/bullet/ announcements of new ventures or products by us or our
competitors,
/bullet/ the perception by others of our ability to obtain any
new financing necessary,
/bullet/ public perception as to the viability of products
developed by us or our competitors, /bullet/ changes in
analysts' recommendations regarding us, and
/bullet/ general market conditions.
USE OF PROCEEDS
We will not receive any proceeds from the resale of the Registered
Shares offered hereby nor will such proceeds be available for our use or
benefit. All proceeds from the resale of the Registered Shares will be for the
account of the selling stockholder. See "Selling Stockholder" and "Plan of
Distribution" below.
SELLING STOCKHOLDER
The selling stockholder under this prospectus is Kingdom Planet
Hollywood, Ltd., an exempted company incorporated in the Cayman Islands with
limited liability.
The Previously Owned Shares covered by this prospectus were acquired by
the selling stockholder in private transactions with us, in private transactions
not with us, and in transactions on the open market.
The Purchased Shares covered by this prospectus are being acquired by
the selling stockholder from Leisure, pursuant to the Stock Purchase Agreement,
at a price of $4.50 per share. The closing of the Stock Purchase Agreement is
contingent upon certain events, including the registration statement, of which
this prospectus is a part, being declared effective by the Securities and
Exchange Commission. The offer and sale by Leisure of the Purchased Shares to
the selling stockholder pursuant to the Stock Purchase Agreement is being made
in a transaction exempt from the registration requirements of the
14
<PAGE>
Securities Act. Pursuant to the Stock Purchase Agreement, the selling
stockholder has represented, among other things, that it:
/bullet/ is acquiring the Purchased Shares solely for its own
account, for investment purposes and with no view
toward resale or other distribution within the meaning
of the Securities Act, and
/bullet/ that the Purchased Shares will not be offered for sale
or otherwise transferred unless they have been
registered or qualify for an exemption from
registration under the Securities Act.
We have determined that it is in our best interests to prepare and file
a registration statement, of which this prospectus is a part, relating to the
resale of the Registered Shares by the selling stockholder. Pursuant to the
Stock Purchase Agreement and a Registration Rights Agreement (both of which are
filed as exhibits to this prospectus), the expenses associated with such
registration will generally be paid as follows:
EXPENSES ASSOCIATED WITH: TO BE PAID BY:
- ------------------------------------------------------ -------------------
Registration of Previously Owned Shares Selling Stockholder
Registration of Purchased Shares Leisure
Selling expenses (including underwriting discounts and Selling Stockholder
commissions and brokerage commissions and fees)
In addition to its ownership of the Registered Shares, the selling
stockholder has had a material relationship with us within the past three years.
In March 1997, we entered into a master franchise agreement with the selling
stockholder which, as amended, allows the selling stockholder to develop 38 or
more PLANET HOLLYWOOD units in a total of 23 countries throughout the Middle
East and Europe. To date, the selling stockholder has paid us approximately $9.5
million for seven franchised locations (in which we have no ownership interest)
and has options for additional units throughout the Middle East and Europe.
Additional franchise fees are also payable under the master franchise agreement.
In March 1997, the selling stockholder also purchased 1,087,000 shares
of Class A Common Stock directly from us for approximately $19.6 million, and
purchased approximately $3 million of merchandise from us. The selling
stockholder has also entered into certain other transactions with us relating to
the formation and operation of three corporations to be owned equally by the
selling stockholder and us. Those corporations will own and operate PLANET
HOLLYWOOD units in Tokyo, Japan and Zurich, Switzerland and an OFFICIAL ALL STAR
CAFE unit in London, England, and those corporations and the selling stockholder
will have certain rights to additional restaurants in those countries. In
addition, the selling stockholder has provided those corporations approximately
$4.25 million which has been paid as fees to us. Each such corporation will
enter into a management agreement with us pursuant to which we will manage each
of the aforementioned units for a fee.
We have also recently entered into transactions with the selling
stockholder which grant the selling stockholder the right to develop a number of
OFFICIAL ALL STAR CAFE and SOUND REPUBLIC units in 23 countries throughout the
Middle East and Europe. In order to induce the selling stockholder to
15
<PAGE>
expeditiously develop OFFICIAL ALL STAR CAFE and SOUND REPUBLIC units in those
countries, we have agreed to waive the initial franchise fees for such units, as
well as the initial franchise fees payable by the selling stockholder for a
number of PLANET HOLLYWOOD units which the selling stockholder has the right to
develop pursuant to the Planet Hollywood master franchise agreement described
above.
The following table sets forth the name of the selling stockholder, the
total number of shares of Class A Common Stock beneficially owned by the selling
stockholder after the closing of the Stock Purchase Agreement and the number of
Registered Shares which may be offered pursuant to this prospectus. This
information is based upon information provided by the selling stockholder. The
Registered Shares are being registered to permit public secondary trading of the
Registered Shares (other than by affiliates of the Company), and the selling
stockholder may offer the Registered Shares for resale from time to time.
<TABLE>
<CAPTION>
TOTAL NUMBER OF SHARES OF
CLASS A COMMON STOCK 0WNERSHIP AFTER
OWNED BEFORE OFFERING (1) OFFERING (3)
------------------------- ---------------------------
NUMBER OF
NAME OF NUMBER OF SHARES BEING NUMBER OF
SELLING STOCKHOLDER SHARES PERCENT (2) OFFERED SHARES PERCENT(2)
- ----------------------------- ---------- ----------- ------------ --------- ---------
<S> <C> <C> <C> <C> <C>
Kingdom Planet Hollywood, Ltd. 15,699,237 16.1% 15,699,237 0 0%
<FN>
(1) The number of shares beneficially owned is determined under rules
promulgated by the SEC, and the information is not necessarily indicative
of beneficial ownership for any other purpose. Such number gives effect to
the closing of the Stock Purchase Agreement.
(2) Percent of total shares of Class A Common Stock outstanding as of November
9, 1998.
(3) It is unknown if, when or in what amounts the selling stockholder may offer
Registered Shares for sale pursuant to this offering. Because the selling
stockholder may offer all or some of the Registered Shares pursuant to this
offering, and because there are currently no agreements, arrangements or
understandings with respect to the sale of any of the Registered Shares
that will be held by the selling stockholder after the closing of the Stock
Purchase Agreement, no estimate can be given as to the amount of Registered
Shares that will be held by the selling stockholder after completion of the
offering. However, for purposes of this table, we have assumed that, after
completion of the offering, none of the Registered Shares offered hereby
will be held by the selling stockholder.
</FN>
</TABLE>
PLAN OF DISTRIBUTION
The Registered Shares offered hereby for resale may be offered by the
selling stockholder or by pledgees, donees, transferees or other successors in
interest that receive the Registered Shares as a gift, partnership distribution
or other non-sale related transfer. The Registered Shares may be sold by the
selling stockholder, or its successors in interest, from time to time in
transactions on the New York Stock Exchange, in the over-the-counter market, in
privately negotiated transactions, in underwritten transactions, through the
writing of options on the Registered Shares or a combination of such methods of
sale, at fixed prices which may be changed, at market prices prevailing at the
time of the sale, at prices related to prevailing market prices or at negotiated
prices.
16
<PAGE>
The Registered Shares may be sold directly or through broker-dealers
acting as principal or agent, or pursuant to a distribution by one or more
underwriters on a firm commitment or best-efforts basis. In connection with an
underwritten offering, underwriters or agents may receive compensation in the
form of discounts, concessions or commissions from the selling stockholder or
from purchasers of the Registered Shares for whom they may acts as agents, and
underwriters may sell the Registered Shares to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Under agreements that may be entered into by us,
underwriters, dealers and agents who participate in the distribution of the
Registered Shares may be entitled to indemnification by us against certain
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which such underwriters, dealers or agents may be
required to make in respect thereof.
The selling stockholder and any underwriters, dealers or agents
participating in the distribution of the Registered Shares may be deemed to be
"underwriters" within the meaning of the Securities Act, and any profit on the
sale of the Registered Shares by the selling stockholder and any commissions
received by any such broker-dealers may be deemed to be underwriting commissions
under the Securities Act.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the Registered Shares may not
simultaneously engage in market making activities with respect to the Class A
Common Stock for a period of two business days before the commencement of such
distribution. In addition and without limiting the foregoing, the selling
stockholder will be subject to the applicable provisions of the Exchange Act and
the rules and regulations thereunder, which provisions may limit the timing of
purchases and sales of shares of Class A Common Stock by the selling
stockholder.
Any or all of the sales or other transactions involving the Registered
Shares described above, whether effected by the selling stockholder, any
broker-dealer or others, may be made pursuant to this prospectus. In addition,
any Registered Shares that qualify for sale pursuant to Rule l44 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
prospectus.
In order to comply with the securities laws of certain states, if
applicable, the Registered Shares will be sold in such jurisdictions only
through registered or licensed brokers or dealers. In addition, in certain
states the Registered Shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
The Purchased Shares were sold by Leisure to the selling stockholder in
a transaction exempt from the registration requirements of the Securities Act.
In accordance with a Registration Rights Agreement between us, the Selling
Stockholder and Leisure dated October 30, 1998, we have agreed to register the
resale of the Registered Shares under the Securities Act. Both us and the
selling stockholder have agreed to indemnify and hold each other harmless
against certain liabilities under the Securities Act that could arise in
connection with the resale by the selling stockholder of the Registered Shares.
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LEGAL MATTERS
The validity of the Registered Shares offered hereby and certain other
legal mattes will be passed upon for us by Gray, Harris & Robinson, P.A.,
Orlando, Florida. As of the date hereof, attorneys with Gray, Harris & Robinson,
P.A. who have worked on substantive matters for us own less than 20,000 shares
of Class A Common Stock.
EXPERTS
The financial statements incorporated in this prospectus by reference
to the Annual Report on Form 10-K, as amended, of Planet Hollywood
International, Inc. for the year ended December 28, 1997 and the Planet
Hollywood International, Inc. Registration Statement on Form S-4, as amended,
dated May 1, 1998, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
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No dealer, salesperson or other person has been authorized to give any
information or to make any representations other than those contained in this
prospectus and, if given or made, such information or representations must not
be relied upon as having been authorized by us, the selling stockholder or by
any other person. This prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities other than the Registered Shares
offered hereby, nor does it constitute an offer to sell or a solicitation of an
offer to buy any of the Registered Shares offered hereby to any person in any
jurisdiction in which such offer or solicitation would be unlawful. Neither the
delivery of this prospectus nor any sale made hereunder shall under any
circumstances create any implication that the information contained herein is
correct as of any date after the date hereof.
----------------
TABLE OF CONTENTS
Available Information...................................................1
Incorporation of Certain Documents
By Reference............................................................1
Note Regarding Forward-Looking
Statements..............................................................2
The Company.............................................................3
Risk Factors............................................................7
Use of Proceeds........................................................14
Selling Stockholder....................................................14
Plan of Distribution...................................................16
Legal Matters..........................................................18
Experts................................................................18
15,699,237 SHARES
[LOGO]
CLASS A COMMON STOCK
-------------------
PROSPECTUS
-------------------
NOVEMBER 10, 1998
19
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated costs and expenses payable
by Leisure in connection with the sale of Class A Common Stock being registered.
Any such costs paid by the Company will be reimbursed by Leisure. All of the
amounts shown are estimates except the registration fee.
SEC Registration Fee............................................... $ 17,321
Accounting fees and expenses....................................... 18,000
Legal fees and expenses............................................ 120,000
Printing and engraving expenses.................................... 2,500
Miscellaneous fees and expenses.................................... 2,000
----------
Total............................................. $ 159,821
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL"), the Bylaws of the Company provide that the Company 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 Company) by reason of the fact that he is or was a
director, officer, employee or agent of the Company, or is or was serving at the
request of the Company 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 Company, and with respect to any criminal action or proceeding,
has no reasonable cause to believe his conduct unlawful.
Pursuant to Section 145 of the DGCL, the Bylaws further provide that
the Company 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 Company 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
Company, or is or was serving at the request of the Company 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 Company 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 Company 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
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circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court shall deem proper.
Section 145 further provides that to the extent a director, officer,
employee or agent of a corporation has been successful in the defense of any
action, suit or proceeding referred to above or in the defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith; that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the corporation is empowered to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation against any liability asserted against 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 Section 145.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. If a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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ITEM 16. EXHIBITS
EXHIBIT NUMBER EXHIBIT DESCRIPTION
- --------------- -------------------------------------------------------
3.1 * Restated Certificate of Incorporation of the Registrant
3.2 ** Third Amended and Restated Bylaws of the Registrant
5.1** Opinion of Gray, Harris & Robinson, P.A.
10.1** Stock Purchase Agreement
10.2** Registration Rights Agreement
23.1** Consent of PricewaterhouseCoopers LLP
23.2** Consent of Gray, Harris & Robinson, P.A.
(included in Exhibit 5.1)
24.1** Powers of Attorney
* Incorporated by reference to the exhibits with the corresponding exhibit
numbers in the Registration Statement on Form S-1 previously filed by the
Registrant (Registration No. 333- 01490)
** Filed herewith
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to file, during any period
in which offers or sales are being made, a post-effective amendment to this
registration statement, to include any material information with respect to the
plan of distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement. For
purposes of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. The
undersigned Registrant further undertakes to remove from registration, by means
of a post-effective amendment, any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefor, unenforceable. If a claim for indemnification against such
liabilities (other than the payment by
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the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Orlando, State of Florida on this 10th day of
November, 1998.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Registrant
By: /s/ ROBERT EARL Date: November 10, 1998
--------------------------
Robert Earl
Chief Executive Officer
By: /s/ THOMAS AVALLONE Date: November 10, 1998
---------------------------
Thomas Avallone
Chief Financial Officer (and Principal Accounting
Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE CAPACITY DATE
- --------- -------- ----
/s/ ROBERT EARL Chairman of the Board of November 10, 1998
- ------------------------- Directors and Chief
Robert Earl Executive Officer
/s/ THOMAS AVALLONE Director, Executive Vice November 10, 1998
- ------------------------- President and Chief
Thomas Avallone Financial Officer
/s/ WILLIAM BAUMHAUER Director, President and November 10, 1998
- ------------------------- Chief Operating Officer
William Baumhauer
* Director November 10, 1998
- ------------------------
Keith Barish
* Director November 10, 1998
- -------------------------
Claudio Gonzalez
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* Director November 10, 1998
- --------------------------
Mark McCormack
* Director November 10, 1998
- -------------------------
Michael Montague
* Director November 10, 1998
- --------------------------
Ong Beng Seng
* Director November 10, 1998
- --------------------------
Isadore Sharp
* Director November 10, 1998
- --------------------------
Michael Tarnopol
---------------------
* The undersigned, by signing his name hereto, does hereby sign this
registration statement or amendment thereto on behalf of the above
indicated directors and officers of Planet Hollywood International, Inc.
pursuant to powers of attorney executed on behalf of each such director and
officer.
By: /s/ THOMAS AVALLONE
-----------------------
Thomas Avallone
ATTORNEY-IN-FACt
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<PAGE>
INDEX TO EXHIBITS
EXHIBIT NUMBER EXHIBIT DESCRIPTION
- ---------------- -------------------------------------------------------
3.1 * Restated Certificate of Incorporation of the Registrant
3.2 ** Third Amended and Restated Bylaws of the Registrant
5.1** Opinion of Gray, Harris & Robinson, P.A.
10.1** Stock Purchase Agreement
10.2** Registration Rights Agreement
23.1** Consent of PricewaterhouseCoopers LLP
23.2** Consent of Gray, Harris & Robinson, P.A.
(included in Exhibit 5.1)
24.1** Powers of Attorney
* Incorporated by reference to the exhibits with the corresponding exhibit
numbers in the Registration Statement on Form S-1 previously filed by the
Registrant (Registration No. 333- 01490)
** Filed herewith
EXHIBIT 3.2
As approved and adopted
by the Board of Directors
as of July 27, 1998
THIRD 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.
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 Chief Executive Officer, 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
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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
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<PAGE>
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
Chief Executive Officer, 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
3
<PAGE>
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.
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.
4
<PAGE>
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, Chief Executive Officer, 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
5
<PAGE>
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
6
<PAGE>
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.
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.
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<PAGE>
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.
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SECTION 8. VACANCIES. Except as may otherwise be provided pursuant to 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, Chief
Executive Officer, President 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.
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:
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(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:
(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
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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
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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 Chief Executive Officer, 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
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SECTION 1. OFFICERS. The officers of this Corporation shall consist of a
Chairman of the Board, a Chief Executive Officer, a President, 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 Chief Executive Officer of the Corporation shall have overall
responsibility for the Corporation, subject to the directions of the Board of
Directors, and shall preside at all meetings of the shareholders and, unless the
Chairman of the Board of Directors has been elected and is present, shall
preside at all meetings of the Board of Directors.
The President and Chief Operating Officer shall report to the Chief
Executive Officer and the Board of Directors and shall be responsible for the
general and active management of the business, operations and affairs of the
Corporation, subject to the direction of the Chief Executive Officer.
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.
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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.
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SECTION 2. FORM. Certificates representing shares in this Corporation shall
be signed by the Chief Executive Officer or 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 Chief
Executive Officer or 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
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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
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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, the Chief
Executive Officer or 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 Chief Executive Officer or 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.
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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
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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
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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
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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 Bylaws 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.
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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
(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 CORPORATE 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.
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EXHIBIT 5.1
[GRAY, HARRIS & ROBINSON, P.A. LETTERHEAD]
November 10, 1998
Planet Hollywood International, Inc.
8669 Commodity Circle
Orlando, Florida 32819
RE: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as counsel to Planet Hollywood International, Inc., a
Delaware corporation (the "Company"), and have examined the Registration
Statement on Form S-3 to be filed by the Company with the Securities and
Exchange Commission on or about November 10, 1998 (the "Registration Statement")
in connection with the registration under the Securities Act of 1933, as
amended, of 15,699,237 shares of the Company's Class A Common Stock, $0.01 par
value per share (the "Shares"). As your counsel in connection with this
transaction, we have examined the proceedings proposed to be taken in connection
with said registration and sale of the Shares.
It is our opinion that, upon completion of the proceedings being taken or
contemplated by us, as your counsel, to be taken prior to the sales, if any, of
the Shares by the selling stockholder, and upon completion of the proceedings
being taken in order to permit such transactions to be carried out in accordance
with the securities laws of the various states, where required, the Shares, when
sold in the manner referred to in the Registration Statement, will be legally
issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, including the prospectus constituting a part thereof,
and any amendment thereto and any registration statement for the same offering
covered by the Registration Statement that is to be effective upon filing
pursuant to Rule 462(b) and all post-effective amendments thereto.
Very truly yours,
GRAY, HARRIS & ROBINSON, P.A.
By: /s/ BYRD F. MARSHALL, JR.
----------------------------
Byrd F. Marshall, Jr.
EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
(PLANET HOLLYWOOD INTERNATIONAL, INC.)
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into as of August
17, 1998, by and between Leisure Ventures PTE Ltd., a corporation organized
under the laws of Singapore ("Seller"), and Kingdom Planet Hollywood, Ltd., an
exempted company incorporated in the Cayman Islands with limited liability
("Buyer").
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, Ten Million (10,000,000) shares of Class A Common Stock, par value
$.01 per share ("Shares") of Planet Hollywood International, Inc., a Delaware
corporation ("Issuer"), at the price and on the other terms and conditions
hereafter set forth.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereby agree as
follows:
1. SALE AND PURCHASE.
Subject to the terms and conditions hereof, Seller hereby agrees to sell to
Buyer, and Buyer hereby agrees to purchase from Seller, at the closing hereunder
("Closing"), Ten Million (10,000,000) Shares for a purchase price ("Purchase
Price") of Four Dollars and Fifty Cents ($4.50) per Share.
2. CLOSING.
(a) TIME AND PLACE OF CLOSING.
Closing will take place at 10:00 a.m. (local time) on the date ("Closing
Date") that is five (5) business days after the later to occur of (i) expiration
or earlier termination of the waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended ("HSR Act") with respect to the
notification to be filed by Buyer for this transaction, and (ii) the
effectiveness of the "SEC Registration Statement" (as defined below) pursuant to
the U.S. Securities Act of 1933, as amended ("Securities Act"), and the
satisfaction of the other conditions set forth in Section 2(b)(vi) of this
Agreement. Closing will occur at the offices of Hogan & Hartson L.L.P., 555 13th
Street, N.W., Washington, D.C. 20004.
(b) CONDITIONS TO BUYER'S OBLIGATION TO COMPLETE CLOSING.
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The obligation of Buyer to complete Closing shall be subject to the
fulfillment of each of the following conditions precedent (or the written waiver
by Buyer of any such condition precedent):
(i) The waiting period for the notification filed by Buyer under
the HSR Act with respect to this transaction shall have expired or otherwise
terminated;
(ii) The representations and warranties of Seller under this
Agreement shall be true and correct in all material respects when made and shall
continue to be true and correct as of the Closing Date as though such
representations and warranties were made on the Closing Date;
(iii) Seller shall have performed and complied with all covenants
required of Seller under this Agreement;
(iv) Seller shall have delivered a certificate, dated the Closing
Date, that the representations and warranties of Seller under this Agreement
shall be true and correct in all material respects when made and shall continue
to be true and correct as of the Closing Date as though such representations and
warranties were made on the Closing Date and that Seller has performed and
complied with all covenants required of Seller under this Agreement;
(v) Buyer shall have received a written statement provided by
Issuer that the Shares are not a U.S. real property interest within the meaning
of Section 897 of the United States Internal Revenue Code of 1986, as amended,
such statement to comply with Treasury Regulations Sections 1.897-2(h) and
1.1445-2(c)(3) and otherwise to be in form and substance satisfactory to the
Buyer and to be issued and dated by Issuer not more than thirty (30) days prior
to the Closing Date; and
(vi) The Issuer shall have filed under the Securities Act a shelf
registration statement on Form S-3 (or such similar form as may be acceptable to
Buyer) covering resale of the Shares by Buyer (such registration statement, the
"Registration Statement"); the Registration Statement shall have been declared
effective by the SEC; the Issuer shall have agreed to maintain the effectiveness
of the Registration Statement until all Shares held by Buyer have been sold and
Issuer shall have entered into an agreement with Buyer, in form satisfactory to
Buyer, indemnifying Buyer for any material omissions or misstatements in such
Registration Statement and providing customary representations and warranties.
All expenses of such Registration Statement shall be borne by Seller.
(c) CONDITIONS TO SELLER'S OBLIGATION TO COMPLETE CLOSING.
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The obligation of Seller to complete Closing shall be subject to the
fulfillment of each of the following conditions precedent (or the written waiver
by Seller of any such condition precedent):
(i) The waiting period for the notification filed by Seller under
the HSR Act with respect to this transaction shall have expired or otherwise
terminated;
(ii) The representations and warranties of Buyer under this
Agreement shall be true and correct in all material respects when made and shall
continue to be true and correct as of the Closing Date as though such
representations and warranties were made on the Closing Date;
(iii) Buyer shall have performed and complied with all covenants
required of Seller under this Agreement; and
(iv) Buyer shall have delivered a certificate, dated the Closing
Date, that the representations and warranties of Buyer under this Agreement
shall be true and correct in all material respects when made and shall continue
to be true and correct as of the Closing Date as though such representations and
warranties were made on the Closing Date and that Buyer has performed and
complied with all covenants required of Buyer under this Agreement.
(d) AT CLOSING:
(i) Buyer shall pay the Purchase Price by wire transfer of
immediately available funds to an account specified by Seller, which account
shall be designated in writing no later than three (3) business days prior to
the Closing Date; and
(ii) Seller shall deliver to Buyer a certificate representing the
Shares, registered in the name of Buyer.
3. SELLER REPRESENTATIONS AND WARRANTIES. Seller hereby represents and
warrants to Buyer, as follows:
(a) ORGANIZATION; CAPITALIZATION. Seller is a corporation duly
organized, validly existing and in good standing under the laws of Singapore and
has all requisite corporate power and authority to own its properties and assets
and to conduct its business as now conducted.
(b) AUTHORIZATION AND VALIDITY OF AGREEMENT. Seller has the corporate
power to enter into this Agreement and to carry out its obligations hereunder.
The execution and delivery of this Agreement and the performance of
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Seller's obligations hereunder have been, or will have been on the Closing Date,
duly authorized by the Board of Directors of Seller, and no other corporate
proceedings on the part of Seller are necessary to authorize such execution,
delivery and performance. This Agreement has been duly executed by Seller and is
the legal, valid and binding obligation of Seller.
(c) NO CONFLICT OR VIOLATION. The execution, delivery and performance
by Seller of this Agreement do not and will not violate or conflict with any
provision of the certificate of incorporation or by-laws of the Seller, and do
not and will not violate any provision of any agreement or instrument to which
Seller is a party or by which it is bound, or any order, judgment or decree of
any court or other governmental or regulatory authority to which Seller is
subject. Other than with respect to notification under the HSR Act and to
filing, no consent or approval of any governmental or regulatory authority or of
any third party, is needed for Seller to perform its obligations hereunder.
(d) TITLE. The Shares are and, as of the Closing Date, will be legally
and beneficially owned by Seller. The Shares will be, on the Closing Date, free
from and unaffected by any option or right to acquire, interest or other equity
or encumbrance whatsoever in favor of any other person, including, without
limitation, any encumbrance or restriction set forth in Schedule A, attached
hereto and made a part hereof. Seller has full right and lawful authority to
sell and procure the transfer of the full legal and beneficial ownership of the
Shares on the terms of this Agreement, such sale being made with full title
guarantee and conferring upon Buyer full and unencumbered legal and beneficial
right, title and interest in and to the Shares.
4. BUYER REPRESENTATIONS AND WARRANTIES. Buyer hereby represents and
warrants to Seller, as follows:
(a) ORGANIZATION. Buyer is a company duly organized, validly existing
and in good standing under the laws of the Cayman Islands and has all requisite
company power and authority to own its properties and assets and to conduct is
business as now conducted.
(b) AUTHORIZATION AND VALIDITY OF AGREEMENT. Buyer has the company
power to enter into this Agreement and to carry out its obligations hereunder.
The execution and delivery of this Agreement and the performance of Buyer's
obligations hereunder have been, or will have been on the Closing Date, duly
authorized by the Board of Directors of Buyer, and no other company proceedings
on the part of Buyer are necessary to authorize such execution, delivery and
performance. This Agreement has been duly executed by Buyer and is the legal,
valid and binding obligation of Buyer.
(c) NO CONFLICT OR VIOLATION. The execution, delivery and performance
by Buyer of this Agreement do not and will not violate or conflict with
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any provision of the charter documents or by-laws of the Buyer, and do not and
will not violate any provision of any agreement or instrument to which Buyer is
a party or by which it is bound, or any order, judgment or decree of any court
or other governmental or regulatory authority to which Buyer is subject.
(d) UNREGISTERED SHARES. Buyer understands that the Shares have not
been registered under the Securities Act of 1933, as amended (the "Act"), or
under applicable state securities laws, in reliance upon exemptions contained in
the Act and such laws and any applicable regulations promulgated thereunder or
interpretations thereof, and cannot be offered for sale, sold or otherwise
transferred unless the Shares are subsequently registered or qualify for
exemption from registration under the Act and such laws.
(e) INVESTMENT INTENT. The Shares are being acquired solely for Buyer's
own account, for investment and not with a view toward resale or other
distribution within the meaning of the Act; the Shares will not be offered for
sale, sold or otherwise transferred without either registration or exemption
from registration under the Act; and the certificates evidencing such Shares
will bear legends substantially to such effect.
5. SELLER COVENANTS.
(a) Seller shall not directly or indirectly, create, assume or permit
to exist any encumbrance or restriction whatsoever with respect either to the
Shares or to Seller's right and lawful authority to sell and transfer the Shares
to Buyer pursuant to this Agreement, provided that no encumbrance and
restriction with respect to the Shares set forth in Schedule A shall make or
deem Seller to be in violation of this Section 5(a).
(b) Seller shall take any and all action required or necessary to
effect the complete removal, as of the Closing Date, of any and all encumbrances
or restrictions whatsoever (including, without limitation, all encumbrances and
restrictions set forth in Schedule A) with respect either to the Shares or to
Seller's right and lawful authority to sell and transfer the Shares to Buyer
pursuant to this Agreement, so as to confer upon Buyer, at Closing, full and
unencumbered legal and beneficial right, title and interest in and to the
Shares.
(c) Seller shall use good faith efforts to cause the Issuer: (i) to
file the Registration Statement promptly, and (ii) to work with the SEC in
pursuing the prompt effectiveness of the Registration Statement.
6. BUYER COVENANT. Buyer shall make good faith efforts to complete and file
the notification filing required under the HSR Act with respect to this
transaction without delay, and in any event within thirty (30) days of the date
hereof. Buyer shall in good faith take (or fully cooperate in the taking of) all
actions, and
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provide any additional information that may be, required or reasonably requested
in order to comply with the requirements of the HSR Act.
7. ADDITIONAL ACTIONS AND DOCUMENTS. Each of the parties hereto agrees to
take or cause to be taken such further actions, to execute and deliver or cause
to be executed and delivered such further documents and instruments, and to
obtain such consents, as may be necessary or as may be reasonably requested in
order to fully effectuate the purposes, terms and conditions of this Agreement.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among
the parties hereto with respect to the transactions contemplated herein, and it
supersedes all prior oral or written agreements, commitments or understandings
with respect to the matters provided for herein.
9. GOVERNING LAW AND CURRENCY.
(a) The validity and interpretation of this Agreement and the
performance by the parties of their respective obligations hereunder shall be
governed by the laws of the State of New York, U.S.A., excluding the choice of
law rules thereof.
(b) All references herein to "Dollars" and "$" shall refer to United
States Dollars.
10. ARBITRATION. Any and all claims arising under or relating to this
Agreement and its subject matter shall be finally resolved only by arbitration
under the rules of conciliations and arbitration of the International Chamber of
Commerce by three (3) arbitrators appointed according to such rules and not by
any judicial body or forum. Arbitration shall take place in Geneva, Switzerland
and shall be conducted in the English language. Any arbitration award or
judgment shall be enforceable in any forum worldwide with jurisdiction over the
party against whom the arbitration award or judgment is to be enforced. The
parties intend that in any such arbitration proceeding that the arbitrators
grant broad discovery relevant to the claims to be arbitrated. The losing party
in the arbitration (as determined by the arbitral tribunal) shall pay all costs
(including reasonable legal fees and disbursements) incurred by the prevailing
party in connection therewith. Each party hereby waives any and all rights to,
and hereby covenants not to bring, any lawsuit, arbitration or other proceeding
in any jurisdiction, judicial body or forum arising under or relating to this
Agreement or its subject matter (other than an arbitration proceeding described
above or a legal proceeding solely to enforce the award or judgment of such
arbitration proceeding).
11. NOTICES. All notices given under this Agreement shall be in writing and
shall be personally served or delivered by a private courier service of
international standing and recognition with charges prepaid, or transmitted by
facsimile, addressed as set forth below, or such other address as such party
shall have
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specified most recently by written notice. Notice shall be deemed given or
delivered on the date of service or transmission if personally served or
transmitted by facsimile. Notice otherwise sent as provided herein shall be
deemed given or delivered on the third business day following delivery of such
notice to a reputable overnight courier service.
To Seller: Leisure Ventures PTE Ltd.
c/o Kuo Investment Co.
55 Fifth Avenue
New York, NY 10003
Attn: Steven Grapstein
Fax: 212/486-1314
with a copy (which shall not constitute notice) to:
Gray, Harris & Robinson, P.A.
Suite 1200
201 East Pine Street
Orlando, FL. 32802
Attn: Byrd F. Marshall, Jr., Esquire
Fax: 407/244-5690
To Buyer: Kingdom Planet Hollywood, Ltd.
c/o Kingdom Holding Company
P.O. Box 8653
Riyadh 11492
Kingdom of Saudi Arabia
Attn:Mustafa Al Hejailan/Gary Davis
Fax: 966-1-481-1954
with a copy (which shall not constitute notice) to:
Hogan & Hartson L.L.P.
Columbia Square
555 13th Street, N.W.
Washington, D.C. 20004-1109
Attn.: Mark E. Mazo, Esquire
Fax: 202/637-5910
12. EXECUTION. To facilitate execution, this Agreement may be executed in
as many counterparts as may be required; and it shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures of all
persons required to bind any party, appear on each counterpart; but it shall be
sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons
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<PAGE>
required to bind any party, appear on one or more of the counterparts. All
counterparts shall collectively constitute a single agreement. It shall not be
necessary in making proof of this Agreement to produce or account for more than
a number of counterparts containing the respective signatures of, or on behalf
of, all of the parties hereto.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
8
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
LEISURE VENTURES PTE LTD.
BY:__________________________
Name: _________________________
Title: ___________________________
KINGDOM PLANET HOLLYWOOD, LTD.
BY:_____________________________
Name: _________________________
Title: ___________________________
9
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SCHEDULE A
Loans from Banque Nationale de Paris Singapore and Societe Generale each secured
by certain assets of the Seller, including some of the Shares.
10
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as of
October 30, 1998, by and between LEISURE VENTURES PTE LTD., a corporation
organized under the laws of Singapore ("Seller"), KINGDOM PLANET HOLLYWOOD,
LTD., an exempted company incorporated in the Cayman Islands with limited
liability ("Investor") and PLANET HOLLYWOOD INTERNATIONAL, INC., a corporation
organized under the laws of the State of Delaware (the "Company").
WHEREAS, Seller and Investor have entered into a Stock Purchase Agreement
dated as of August 17, 1998 (the "Stock Purchase Agreement"), whereby Seller has
agreed to sell to Investor, Ten Million (10,000,000) shares of Class A Common
Stock, par value $0.01 per share, of the Company (the "Purchased Shares").
WHEREAS, the closing of the Stock Purchase Agreement is contingent on
certain events, including, but not limited to, (i) effectiveness of an SEC
registration statement covering the resale of the Purchased Shares by Investor,
and (ii) the agreement by the Company to indemnify Investor for certain
misstatements or omissions in such registration statement.
WHEREAS, exclusive of the Purchased Shares, Investor beneficially owns Five
Million Six Hundred Ninety-nine Thousand Two Hundred Thirty-seven (5,699,237)
shares of the Company's Class A Common Stock (the "Previously Owned Shares")
(the Purchased Shares and Previously Owned Shares to be collectively referred to
herein as the "Registerable Securities").
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. RECITALS. The parties hereby agree that the aforementioned recitals
are true and correct and, together with the definitions set forth therein and in
the preamble to this Agreement, are hereby incorporated into this Agreement by
this reference.
2. REQUIRED REGISTRATION.
(a) The Company agrees to register under the Securities Act of
1933, as amended (the "Act"), the resale of the Registerable Securities by
Investor. The Company, however, is obligated to effect only one registration
pursuant to this Section 2.
(b) The Company shall, as expeditiously as reasonably possible:
(i) Prepare and file with the Securities and Exchange
Commission (the "SEC") a registration statement on Form S-3 or statements or
similar documents (the "S-3 Registration Statement") with respect to the
Registerable Securities, other than any Registerable Securities excluded by
Investor, and thereafter use its best efforts to cause the S-3 Registration
Statement to become effective, and keep the S-3 Registration Statement effective
at all times until all Registerable Securities covered by such S-3 Registration
Statement are sold;
Page 1 of 12
<PAGE>
(ii) Prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the S-3 Registration
Statement and the prospectus used in connection with the S-3 Registration
Statement as may be necessary to keep the S-3 Registration Statement effective
during the term provided for in Section 2(b)(i) hereof and, during such period,
comply with the provisions of the Act with respect to the disposition of all
Registerable Securities covered by the S-3 Registration Statement until such
date;
(iii) Promptly furnish to Investor such numbers of copies of
a prospectus, including a preliminary prospectus, and all amendments and
supplements thereto (in each case including all exhibits), as may be reasonably
requested in conformity with the requirements of the Act;
(iv) Promptly notify Investor, at any time when a prospectus
relating to the Registerable Securities covered by the S-3 Registration
Statement is required to be delivered under the Act, of the happening of any
event as a result of which the prospectus included in the S-3 Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing. The Company shall promptly amend or supplement the S-3 Registration
Statement to correct any such untrue statement or omission so that, as
thereafter delivered to the purchasers of such securities, such prospectus, as
supplemented or amended, shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the circumstances
under which they were made; and promptly furnish to Investor a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary;
(v) Promptly notify Investor of the issuance by the SEC of
any stop order suspending the effectiveness of the S-3 Registration Statement or
the initiation of any proceedings for that purpose. The Company will use its
best efforts to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible time;
(vi) Use its best efforts to register and qualify the
Registerable Securities included in the S-3 Registration Statement under such
other securities or "blue sky" laws of such states as shall be reasonably
requested by Investor for the distribution of the Registerable Securities;
provided, however, that the Company shall not be required to qualify to do
business, to file a general consent to service of process or to subject itself
to taxation in any state or jurisdiction in which it is not now so qualified or
taxed;
(vii) Use all reasonable efforts to cause the Company's
Class A Common Stock to continue to be listed on the New York Stock Exchange and
all other exchanges on which it is currently listed for so long as the Company
has an obligation to maintain the effectiveness of the S-3 Registration
Statement; and
(viii) Provide a transfer agent and registrar for the
Registerable Securities for so long as the Company has an obligation to maintain
the effectiveness of the S-3 Registration Statement.
Page 2 of 12
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(c) If Investor elects to offer any or all of the Registerable
Securities pursuant to an underwritten public offering (other than pursuant to
Section 3 hereof), Investor shall have the right to select the investment
bankers(s) and manager(s) to administer the offering, subject to the Company's
approval, which shall not be unreasonably withheld. In such event, in addition
to its obligations under Section 2(b), the Company shall, as expeditiously as
reasonably possible:
(i) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other reasonable
actions as the underwriter(s) reasonably require in order to expedite or
facilitate the disposition of the Registerable Securities;
(ii) at the request of Investor, use its best efforts to
furnish on the date that the Registerable Securities are delivered to the
underwriter(s) for sale pursuant to such registration an opinion dated such date
of counsel representing the Company for the purposes of such registration,
addressed to the underwriters and to Investor, stating that the S-3 Registration
Statement has become effective under the Act and that (A) to the best knowledge
of such counsel, no stop order suspending the effectiveness thereof has been
issued and no proceedings for that purpose have been instituted or are pending
or contemplated under the Act; (B) the S-3 Registration Statement, the related
prospectus and each amendment or supplement thereof comply as to form in all
material respects with the requirements of the Act (except that such counsel
need not express any opinion as to financial statements contained therein) and
(C) to such other effects as reasonably may be requested by counsel for the
underwriter(s) or by Investor or its counsel;
(iii) make available for inspection by Investor, any
underwriter participating in any disposition pursuant to the S-3 Registration
Statement, and any attorney, accountant or other agent retained by Investor or
any underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all information reasonably
requested by Investor or any underwriter, attorney, accountant or agent in
connection with the S-3 Registration Statement; and
(iv) obtain a cold comfort letter from the Company's
independent public accountants in customary form and covering such matter of the
type customarily covered by cold comfort letters as Investor reasonably
requests.
(d) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 2 with respect to Investor,
that Investor shall furnish to the Company at such time as the Company shall
reasonably request such information regarding Investor, the Registerable
Securities held by Investor, and the intended method of disposition of such
securities as shall be reasonably required to effect the registration of the
Registerable Securities and shall execute such documents in connection with such
registration as the Company may reasonably request.
Page 3 of 12
<PAGE>
3. INCIDENTAL REGISTRATION.
(a) If, at any time subsequent to the date of this Agreement, the
Company proposes to register, in an underwritten public offering, any of its
equity securities (the "Priority Securities") under the Act (other than a
registration (i) relating to shares issuable upon exercise of employee stock
options or in connection with any employee benefit or similar plan of the
Company, or (ii) in connection with an acquisition by the Company of another
company) in a manner which would permit registration of the Registerable
Securities for sale to the public under the Act, it shall each such time, give
prompt written notice to Investor of its intention to do so and of Investor's
rights under this Section 3, at least thirty (30) days prior to the anticipated
filing date of the registration statement (a "Company Registration Statement")
relating to such registration. Such notice shall provide Investor the
opportunity to include in the Company Registration Statement such number of the
Registerable Securities as Investor may reasonably request.
(b) Upon the written request of Investor made within twenty (20) days
after the receipt of the Company's notice (which request shall specify the
number of the Registerable Securities requested to be included in the
registration), and subject to the provisions of Section 3(c) hereof, the Company
will use its best efforts to effect the registration under the Act of all
Registerable Securities which the Company has been so requested to register by
Investor; PROVIDED, that (i) Investor must sell such Registerable Securities to
the underwriters selected by the Company on the same terms and conditions as
apply to the Company; and (ii) if, at any time after giving written notice of
its intention to register any securities pursuant to Section 3(a) and prior to
the effective date of the Company Registration Statement filed in connection
with such registration, the Company shall determine for any reason not to
register the Priority Securities, the Company shall give written notice to
Investor and shall thereupon be relieved of its obligation to register any of
the Registerable Securities in connection with such registration.
(c) In connection with any registration pursuant to this Section 3, if
the managing underwriter advises the Company that, in its good faith view, the
number of equity securities (including all Registerable Securities) which the
Company, Investor and any other persons intend to include in such registration
exceeds the largest number of securities which can be sold without having an
adverse effect on such offering, including the price at which such securities
can be sold, then the Company will include in such registration (i) first, all
the Priority Securities, and (ii) second, as many securities (including all
Registerable Securities) requested to be included in such registration by
Investor or persons other than the Company; PROVIDED, that if the number of
securities requested to be included in such registration by Investor or such
other persons, together with the number of Priority Securities, exceeds the
number which the Company has been advised by the managing underwriter can be
sold in such offering without having the adverse effect referred to above, then
the number of securities (including all Registerable Securities) requested to be
included in such registration by the Investor or persons other than the Company
shall be reduced pro rata among the Investor and such other persons based upon
the number of equity securities of the Company owned by such holders.
Page 4 of 12
<PAGE>
4. EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses (including
counsel fees) incurred in connection with complying with state securities or
"blue sky" laws, fees and expenses incurred in connection with listing any of
the Registerable Securities on any securities exchange, transfer taxes, fees of
transfer agents and registrars and costs of insurance, but excluding any Selling
Expenses, are called "Registration Expenses." All underwriting discounts,
broker/dealer discounts and selling commissions applicable to the sale of the
Registerable Securities, and fees and disbursements of counsel for Investor, are
called "Selling Expenses."
(b) All Registration Expenses, other than SEC filing fees relating to
the Previously Owned Shares, shall be paid by Seller, or in the event such
expenses are first paid by the Company, Seller shall reimburse the Company for
all such expenses. All SEC filing fees relating to the Previously Owned Shares
shall be paid by Investor, or in the event such expenses are first paid by the
Company, Investor shall reimburse the Company for all such expenses. All Selling
Expenses shall by paid by Investor.
5. INDEMNIFICATION.
(a) To the fullest extent permitted by law, the Company will indemnify
and hold harmless Investor, each of its directors, officers and each person, if
any, who controls Investor, any underwriter (as defined in the Act) for Investor
and each person, if any, who controls any such underwriter within the meaning of
the Act or the Securities Exchange Act of 1934, as amended (the "1934 Act"),
against any losses, claims, damages, expenses or liabilities (joint or several)
to which any of them may become subject under the Act, the 1934 Act or
otherwise, insofar as such losses, claims, damages, expenses or liabilities (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively, a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in the S-3 Registration Statement
or any Company Registration Statement, including any preliminary prospectus or
final prospectus contained therein or any amendments or supplements thereto;
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading; or (iii) any
violation or alleged violation by the Company of the Act, the 1934 Act, any
state securities law or any rule or regulation promulgated under the Act, the
1934 Act or any state securities law; and the Company will reimburse Investor
and such underwriter or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, action or proceeding; provided, however,
that the indemnity agreement contained in this Section 5(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is affected without the consent of the Company, which consent
shall not be unreasonably withheld, nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance on and in
conformity with written information furnished expressly for use
Page 5 of 12
<PAGE>
in connection with such registration by Investor or any such underwriter, or
controlling person as the case may be.
(b) To the fullest extent permitted by law, Investor will indemnify
and hold harmless the Company, each of its directors, each of its officers who
have signed the S-3 Registration Statement or any Company Registration
Statement, each person, if any, who controls the Company within the meaning of
the Act or the 1934 Act, any underwriter or any of its directors or officers or
any person who controls such underwriter, against any losses, claims, damages or
liabilities (joint or several) to which any of them may become subject, under
the Act, the 1934 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by Investor expressly for
use in connection with such registration; and Investor will reimburse any legal
or other expenses reasonably incurred by any of them in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, however, that the indemnity agreement contained in this Section 5(b)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
Investor, which consent shall not be unreasonably withheld; and PROVIDED,
FURTHER, that Investor shall be liable under this Section 5(b) for only that
amount of losses, claims, damages and liabilities as does not exceed the
proceeds (net of underwriting discounts and commissions) to such Investor as a
result of the sale of the Registerable Securities pursuant to the S-3
Registration Statement or any Company Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section
5 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnified party under this Section 5, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the parties; PROVIDED, however, that an indemnified
party shall have the right to retain its own counsel, with the fees and expenses
to be paid by the indemnified party; PROVIDED FURTHER, however, that if there
exists or shall exist a conflict of interest that would make it inappropriate,
in the opinion of counsel to the indemnified party, for the same counsel to
represent the indemnified party and the indemnifying party or any affiliate
thereof, such fees and expenses shall be paid by the indemnifying party. The
failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action shall relieve such indemnifying
party of any liability to the indemnified party under this Section 5 only to the
extent such failure is prejudicial to its ability to defend such action, but the
omission to so deliver written notice to the indemnifying party will not relieve
it of any liability that it may have to any indemnified party otherwise than
under this Section 5.
(d) If the indemnification provided for in this Section 5 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to herein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the
Page 6 of 12
<PAGE>
indemnified party on the other hand in connection with the statements or
omissions that resulted in such loss, liability, claim, damage or expense, as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information, and the opportunity to
correct or prevent such statement or omission.
6. REPRESENTATIONS AND WARRANTIES. Seller, Investor and the Company each
represent and warrant to each other as follows:
(a) The execution, delivery and performance of this Agreement by such
party has been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, or any organizational documents of such party, or any indenture,
agreement or other instrument to which it or any of its properties or assets is
bound, conflict with, result in a breach of or constitute a default under any
such indenture, agreement or other instrument or result in the creation or
imposition of any lien, charge or encumbrance or any nature whatsoever upon any
of the properties or assets of such party.
(b) This Agreement has been duly executed and delivered by such party
and constitutes the legal, valid and binding obligation of such party,
enforceable in accordance with its terms.
7. SUSPENSION OF REGISTRATION AND SALES.
(a) Notwithstanding the provisions of Section 2, the Company's
obligation to file a registration statement pursuant to Section 2, or cause such
registration statement to become and remain effective, shall be suspended for a
period (or periods) not to exceed forty-five (45) days in any eighteen (18)
month period if the Company determines in good faith that: (i) such registration
might (A) interfere with or affect the negotiation or completion of any
transaction that is being contemplated by the Company at the time the right to
suspend is exercised, or (B) involve initial or continuing disclosure
obligations that are not in the best interest of the Company's stockholders, or
(ii) there exists at the time material non-public information relating to the
Company which in the reasonable opinion of the Company, should not be disclosed.
The Company shall provide Investor written notice prior to any such suspension.
(b) In the event:
(i) Investor requests the registration of any of the Registerable
Securities pursuant to Section 3 of this Agreement, or
(ii) any subsequent registration of the Class A Common Stock of
the Company (or any security convertible into or exchangeable for Class A Common
Stock) shall be in connection with an underwritten public offering and Investor
shall not request (or have the opportunity to request) the registration of any
of the Registerable Securities, Investor agrees not to effect any sale or
distribution of the Registerable Securities, whether pursuant to the S-3
Registration Statement, any sale pursuant to Rule 144 or any successor provision
under the Act,
Page 7 of 12
<PAGE>
or any other public sale (other than as part of such underwritten public
offering) during the seven days prior to, and during the 120 day period which
begins on the effective date of such registration statement, provided that
Investor has received written notice of such registration at least two business
days prior to the anticipated beginning of the seven day period referred to
above. The 120 day period referred to in this subsection may be extended to a
period not to exceed 180 days upon the underwriter's written reasonable request.
8. RESTRICTIONS ON FURTHER SALES BY SELLER. As an inducement to the Company
to register the Purchased Shares, Seller agrees that without the prior written
consent of the Company, Seller will not to make any additional sale or transfer
of the Class A Common Stock of the Company currently held by Seller for a period
of one year from the date of this Agreement. The parties acknowledge that Seller
has previously delivered certain of its stock certificates representing shares
of the Company's Class A Common Stock currently held by Seller to certain banks
as collateral for loans made by such banks to Seller. The parties expressly
agree that the restrictions imposed on Seller in this Section 8 shall not apply
to any lender who holds shares of the Company's Class A Common Stock as
collateral for a loan made (or to be made) to Seller, and that the terms and
provisions of any such loan arrangements shall not be affected by this
Agreement.
9. MISCELLANEOUS
(a) CONDITION SUBSEQUENT. In the event the closing of the Stock
Purchase Agreement does not occur, this Agreement shall be null and void and all
obligations of the parties pursuant to this Agreement shall immediately
terminate.
(b) CHANGES IN REGISTERABLE SECURITIES. If, and as often as, there is
a change in the Registerable Securities by way of a stock split, stock dividend,
combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights and
privileges granted hereby shall continue with respect to the Registerable
Securities as so changed.
(c) INFORMATION AVAILABLE. For so long as the Company has an
obligation to maintain the effectiveness of the S-3 Registration Statement, the
Company shall furnish to Investor:
(i) as soon as practicable (but in the case of the Company's
Annual Report to Stockholders, within 120 days after the end of each fiscal year
of the Company), one copy of (A) its Annual Report to Stockholders (which shall
contain financial statements audited in accordance with generally accepted
auditing standards certified by a national firm of certified public
accountants); (B) its Annual Report on Form 10-K; (C) its quarterly reports on
Form 10-Q (the foregoing, in each case, excluding exhibits); and (D) its current
reports on Form 8-K, if any, and
(ii) upon the request of Investor, all exhibits excluded by the
parenthetical to subsection (c)(i)(C) of this Section 9, in the form generally
available to the public.
Page 8 of 12
<PAGE>
(d) SUCCESSORS AND ASSIGNS. The rights and obligations set forth in
this Agreement shall bind and inure to the benefit of the respective successors
and permitted assigns of the parties hereto. The rights and obligations set
forth in this Agreement shall not be assignable by any party hereto without the
express written consent of all other parties; PROVIDED that any party may freely
assign its rights and obligations under this Agreement to an "Affiliate" of such
party; and PROVIDED, FURTHER, that Investor may also freely assign its rights
and obligations under this Agreement to any banks or other lenders (or their
agents) who hold any of the Registerable Securities as collateral. For purposes
of this subsection, "Affiliate", shall mean, with respect to any party, any
natural person or firm, corporation, partnership, association, trust or other
entity which controls, is controlled by, or is under common control with, the
subject party.
(e) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and may be amended
only by a writing executed by all parties.
(f) FURTHER ASSURANCES. Each of the parties hereto agrees to take or
cause to be taken such further actions, to execute and deliver or cause to be
executed and delivered such further documents and instruments, and to obtain
such consents as may be necessary or as be reasonably requested in order to
fully effectuate the purpose, terms and conditions of this Agreement.
(g) GOVERNING LAW. This Agreement shall be enforced, governed and
construed in all respects in accordance with the laws of the State of New York.
(h) ARBITRATION. Any and all claims arising under or relating to this
Agreement and its subject matter shall be finally resolved only by arbitration
under the rules of conciliations and arbitration of the International Chamber of
Commerce by three (3) arbitrators appointed according to its rules and not by
any judicial body or forum. Arbitration shall take place in Geneva, Switzerland
and shall be conducted in the English language. Any arbitration award or
judgment shall be enforceable in any forum worldwide with jurisdiction over the
party against whom the arbitration award or judgment is to be enforced. The
parties intend that in any such arbitration proceeding that the arbitrators
grant broad discovery relevant to the claims to be arbitrated. The losing party
in the arbitration (as determined by the arbitral tribunal) shall pay all costs
(including reasonable legal fees and disbursements) incurred by the prevailing
party in connection therewith. Each party hereby waives any and all rights to,
and hereby covenants not to bring, any lawsuit, arbitration or other proceeding
in any jurisdiction, judicial body or forum arising under or relating to this
Agreement or its subject matter (other than an arbitration proceeding described
above or a legal proceeding solely to enforce the award or judgment of such
arbitration proceeding).
(i) NOTICES. All notices given under this Agreement shall be in
writing and shall be personally served or delivered by a private courier service
of international standing and recognition with charges prepaid, or transmitted
by facsimile, addressed as set forth below, or such other address as such party
shall have specified most recently by written notice:
Page 9 of 12
<PAGE>
If to Seller: Leisure Ventures PTE Ltd.
c/o Kuo Investment Co.
55 Fifth Avenue
New York, New York 10003
Attn: Steven Grapstein
Fax: 212-486-1314
with a copy to: Gray, Harris & Robinson, P.A.
(which shall 201 East Pine Street
constitute notice) Suite 1200
Orlando, Florida 32801
Attn: Byrd F. Marshall, Jr.
Fax: 407-244-5690
If to Investor: Kingdom Planet Hollywood, Ltd.
c/o Kingdom Holding Company
P.O. Box 8653
Riyadh 11492
Kingdom of Saudi Arabia
Attn: Mustafa Al Hejailan/Gary Davis
Fax: 966-1-481-1954
with a copy to: Hogan & Hartson L.L.P.
(which shall Columbia Square
constitute notice) 555 13th Street, N.W.
Washington, D.C. 20004-1109
Attn: Mark E. Mazo
Fax: 202-637-5910
If to Company: Planet Hollywood International, Inc.
8669 Commodity Circle
Orlando, Florida 32819
Attn: General Counsel
Fax: 407-345-1115
with a copy to: Gray, Harris & Robinson, P.A.
(which shall 201 East Pine Street
constitute notice) Suite 1200
Orlando, Florida 32801
Attn: Byrd F. Marshall, Jr.
Fax: 407-244-5690
Notice shall be deemed given or delivered on the date of service or transmission
if personally served or transmitted by facsimile. Notice otherwise sent as
provided herein shall be deemed given or delivered on the third business day
following delivery of such notice to a reputable overnight courier service.
Page 10 of 12
<PAGE>
(j) BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and to their respective heirs, legal
representatives, successors and permitted assigns.
(k) COUNTERPARTS AND FACSIMILES. This Agreement may be executed in one
or more counterparts by the parties hereto. All counterparts shall be construed
together and shall constitute one agreement. Each counterpart shall be deemed an
original hereof notwithstanding less than all of the parties may have executed
it. All facsimile executions shall be treated as originals for all purposes.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 11 of 12
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first written above.
LEISURE VENTURES PTE, LTD.
By:____________________________
Name:_________________________
Its:____________________________
KINGDOM PLANET HOLLYWOOD, LTD.
By:____________________________
Name:_________________________
Its:____________________________
PLANET HOLLYWOOD INTERNATIONAL, INC.
By:____________________________
Name:_________________________
Its:____________________________
Page 12 of 12
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
March 3, 1998 appearing on page 33 of Planet Hollywood International, Inc.'s
Annual Report on Form 10-K, as amended, for the year ended December 28, 1997 and
on page F-2 of Planet Hollywood International, Inc.'s Registration Statement on
Form S-4 (No. 333-51655), as amended. We also consent to the reference to us
under the heading "Experts" in such Prospectus.
PRICEWATERHOUSECOOPERS LLP
Orlando, Florida
November 10, 1998
8
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Planet Hollywood
International, Inc., a Delaware corporation (the "Company"), do hereby
constitute and appoint jointly and severally, Robert Earl, Thomas Avallone and
Scott E. Johnson, and each of them, the lawful attorneys and agents, with power
and authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents determine to be necessary or
advisable or required in connection with the filing by the Company, with the
Securities and Exchange Commission (the "Commission") under the provisions of
the Securities Act of 1933, as amended, and any rules and regulations of the
Commission, a Form S-3 Registration Statement (the "Registration Statement")
with respect to the sale of 10,000,000 shares of the Company's Class A Common
Stock, $0.01 par value, by Kingdom Planet Hollywood, Ltd. and to file with the
Commission, or any national securities exchange pertaining to such securities or
to such registration, all documents necessary for the Company to comply with the
Securities Act, and any rules or regulations or requirements of the Commission.
Without limiting the generality of the foregoing power and authority, the powers
granted include the power and authority to sign the names of the undersigned
officers and directors in the capacities indicated below to the Registration
Statement, to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and each of the undersigned hereby ratifies
and confirms all that said attorneys and agents or any of them shall do or cause
to be done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- --------- -------- ----
<S> <C> <C>
/s/ KEITH BARISH Chairman of the Board of Directors September 17, 1998
- ------------------------
Keith Barish
/s/ ROBERT EARL Director and Chief Executive Officer September 17, 1998
- ------------------------
Robert Earl
/s/ THOMAS AVALLONE Director, Executive Vice President and September 17, 1998
- ------------------------ Chief Financial Officer
Thomas Avallone
/s/ CLAUDIO GONZALEZ Director September 17, 1998
- ------------------------
Claudio Gonzalez
/s/ MARK MCCORMACK Director September 17, 1998
- ------------------------
Mark McCormack
/s/ MICHAEL MONTAGUE Director September 17, 1998
- ------------------------
Michael Montague
/s/ ONG BENG SENG Director September 24, 1998
- -------------------------
Ong Beng Seng
/s/ ISADORE SHARP Director September 17, 1998
- -------------------------
Isadore Sharp
/s/ MICHAEL TARNOPOL Director September 17, 1998
- -------------------------
Michael Tarnopol
</TABLE>
9
