As filed with the U.S. Securities and Exchange Commission on November 2, 1998
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
PLANET HOLLYWOOD INTERNATIONAL, INC.
------------------------------------------------------
(Exact name of Registrant as specified in its charter)
DELAWARE 59-3283783
----------------------------- ----------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
FIRST AMENDED AND RESTATED PLANET HOLLYWOOD
INTERNATIONAL, INC. 1995 STOCK AWARD AND INCENTIVE PLAN
-------------------------------------------------------
(Full title of the Plan)
8669 COMMODITY CIRCLE, ORLANDO, FLORIDA 32819, (407) 363-7827
---------------------------------------------------------------------------
(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
- ---------------------------------------------------------------------------
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
------------------------------------
COPY TO:
Byrd F. Marshall, Jr.,Esq., Gray, Harris & Robinson, P.A.,
201 East Pine Street, Suite 1200, Orlando, Florida 32801, (407) 843-8880
------------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE PRICE
- ------------------------------------ ------------ ------------------ ------------------ -----------------
<S> <C> <C> <C> <C>
Class A Common Stock, $0.01 par 1,000,000 $4.7422(1) $4,742,187.50(1) $1,318.33
value
<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h). The aggregate offering price and
registration fee are based upon the sum of (a) the product that results
from multiplying 750,000 shares, which is the number of shares of Class
A Common Stock registered as a part of this Registration Statement as
to which options have been granted but not exercised under the First
Amended and Restated Planet Hollywood International, Inc. 1995 Stock
Award and Incentive Plan (the "Plan"), by $5.00 per share, which is the
weighted average exercise price of such options, and (b) the product
that results from multiplying 250,000 shares, which is the number of
shares of Class A Common Stock registered as a part of this
Registration Statement as to which options may be granted under the
Plan, by $3.96875 per share, which is the average of the high and low
prices of the Registrant's shares of Class A Common Stock as reported
on the New York Stock Exchange on October 30, 1998.
</FN>
</TABLE>
<PAGE>
STATEMENT UNDER GENERAL INSTRUCTION E
REGISTRATION OF ADDITIONAL SECURITIES
The purpose of this Registration Statement on Form S-8 is to register
1,000,000 additional shares of the Registrant's Class A Common Stock, $0.01 par
value per share, in connection with the Registrant's First Amended and Restated
Planet Hollywood International, Inc. 1995 Stock Award and Incentive Plan (the
"Plan"). Because this Registration Statement on Form S-8 registers additional
securities of the same class as other securities for which a Registration
Statement on Form S-8 relating to the Plan is effective, and pursuant to General
Instruction E to Form S-8, the contents of the Registrant's Registration
Statement on Form S-8 (Registration No. 333-31685) filed with the Commission on
July 21, 1997, are incorporated herein by reference.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 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 the 2nd day of
November, 1998.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Registrant
By: /s/ ROBERT EARL Date: November 2, 1998
--------------------------
Robert Earl
Chief Executive Officer
By: /s/ THOMAS AVALLONE Date: November 2, 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
- --------- -------- ----
* Chairman of the Board November 2, 1998
- ----------------------------- of Directors
Keith Barish
/s/ ROBERT EARL Director and Chief November 2, 1998
- ------------------------------- Executive Officer
Robert Earl
/s/ THOMAS AVALLONE Director, Executive Vice November 2, 1998
- ------------------------------ President and Chief
Thomas Avallone Financial Officer
2
<PAGE>
/s/ WILLIAM BAUMHAUER Director, President and November 2, 1998
- ----------------------------- Chief Operating Officer
William Baumhauer
* Director November 2, 1998
- -----------------------------
Claudio Gonzalez
* Director November 2, 1998
- -----------------------------
Mark McCormack
* Director November 2, 1998
- -----------------------------
Michael Montague
* Director November 2, 1998
- -----------------------------
Ong Beng Seng
* Director November 2, 1998
- ------------------------------
Isadore Sharp
* Director November 2, 1998
- ------------------------------
Michael Tarnopol
---------------------
* The undersigned, by signing his name hereto, does hereby sign this
registration statement 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
3
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER 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.
23.1** Consent of Gray, Harris & Robinson, P.A. (included in Exhibit 5.1)
23.2** Consent of PricewaterhouseCoopers LLP
24.1** Power of Attorney
99.1** First Amended and Restated Planet Hollywood International, Inc. 1995
Stock Award and Incentive Plan.
- ----------------------------
* 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
4
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
1
<PAGE>
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
2
<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.
7
<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.
8
<PAGE>
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:
9
<PAGE>
(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
10
<PAGE>
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
11
<PAGE>
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
12
<PAGE>
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.
13
<PAGE>
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.
14
<PAGE>
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
15
<PAGE>
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
16
<PAGE>
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.
17
<PAGE>
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
18
<PAGE>
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
19
<PAGE>
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
20
<PAGE>
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.
21
<PAGE>
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.
22
EXHIBIT 5.1
[GRAY, HARRIS & ROBINSON, P.A. LETTERHEAD]
November 2, 1998
Planet Hollywood International, Inc.
8669 Commodity Circle
Orlando, Florida 32819
RE: REGISTRATION STATEMENT ON FORM S-8 RELATING TO THE FIRST AMENDED AND
RESTATED PLANET HOLLYWOOD INTERNATIONAL, INC. 1995 STOCK AWARD AND
INCENTIVE PLAN (THE "PLAN")
Ladies and Gentlemen:
We have acted as counsel to Planet Hollywood International, Inc., a
Delaware corporation (the "Company"), in connection with the preparation of the
above-captioned Registration Statement on Form S-8 to be filed by the Company
with the Securities and Exchange Commission on or about November 2, 1998 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 1,000,000 additional shares of Planet
Hollywood International, Inc. Class A Common Stock, $0.01 par value per share,
(the "Shares") to be distributed pursuant to the Plan. As your counsel in
connection with this registration process, we have examined the proceedings
proposed to be taken in connection with said registration and the issuance 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 issuance of the
Shares, 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 issued and 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 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 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.
PRICEWATERHOUSECOOPERS LLP
Orlando, Florida
October 30, 1998
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-8 Registration Statement (the "Registration Statement")
with respect to the registration of an additional 1,000,000 shares of the
Company's Class A Common Stock, $0.01 par value, under the First Amended and
Restated Planet Hollywood International, Inc. 1995 Stock Award and Incentive
Plan 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 the
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with the 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.
SIGNATURE CAPACITY DATE
- --------- -------- ----
/s/ KEITH BARISH Chairman of the Board of September 17, 1998
- ----------------------- Directors
Keith Barish
/s/ ROBERT EARL Director and Chief Executive September 17, 1998
- ----------------------- Officer
Robert Earl
/s/ THOMAS AVALLONE Director, Executive Vice September 17, 1998
- ----------------------- President and Chief
Thomas Avallone Financial Officer
/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 October 23, 1998
- -----------------------
Ong Beng Seng
/s/ ISADORE SHARP Director September 17, 1998
- -----------------------
Isadore Sharp
/s/ MICHAEL TARNOPOL Director 4September 17, 1998
- -----------------------
Michael Tarnopol
EXHIBIT 99.1
FIRST AMENDED AND RESTATED
PLANET HOLLYWOOD INTERNATIONAL, INC.
1995 STOCK AWARD
AND INCENTIVE PLAN
1. PURPOSE; TYPES OF AWARDS; CONSTRUCTION.
The purpose of the Planet Hollywood International, Inc. First Amended
and Restated 1995 Stock Award and Incentive Plan (the "Plan") is to afford an
incentive to selected directors, employees and independent contractors of Planet
Hollywood International, Inc. or any Subsidiaries or any Affiliates which now
exist or hereafter are organized or acquired (collectively, the "Company"), to
acquire a proprietary interest in the Company, to continue as directors,
employees or independent contractors, as appropriate, to increase their efforts
on behalf of the Company and/or to promote the success of the Company's
business.
2. DEFINITIONS.
The following terms, as used herein, shall have the following meanings:
(a) "Affiliate" shall mean (i) any limited partnership the
general partner of which is either Planet Hollywood or a Subsidiary; (ii) any
limited liability company in which either Planet Hollywood or a Subsidiary owns
at least fifty percent (50%) of the economic interests of such company; (iii)
any general partnership or joint venture in which either Planet Hollywood or a
Subsidiary owns at least fifty percent (50%) of the partnership interests or
venture interests, respectively; (iv) any foreign entity in which Planet
Hollywood or a Subsidiary owns at least fifty percent (50%) of the shares or
other interests of such company and controls at least fifty percent (50%) of the
Board of Directors or similar governing body of such company; and (v) Orlando
Corporate Services, Inc., a Florida corporation.
(b) "Award" shall mean any Option, SAR, Restricted Stock,
Restricted Stock Unit, Dividend Equivalent or Other Stock-Based Award or Other
Cash-Based Award granted under the Plan.
(c) "Award Agreement" shall mean any written agreement,
contract, or other instrument or document between the Company and a Participant
or a Grantee evidencing an Award.
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Change in Control" shall mean the occurrence of an event
described in Section 12(f) hereof.
(f) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(g) "Committee" shall mean the Committee as appointed by the
Board and as described in Section 3 hereof.
1
<PAGE>
(h) "Company" shall mean, collectively, Planet Hollywood and
all of its Subsidiaries and Affiliates now held or hereafter formed, organized,
or acquired.
(i) "Consolidated Net Earnings" shall mean the net earnings of
the Company for each fiscal year in a Performance Period determined in
accordance with generally accepted accounting principles and reported upon by
the Company's independent accountants, but before any provision for amounts paid
or accrued with respect to Awards in respect of such Performance Period.
(j) "Disability" shall mean a disability which would qualify
as a "permanent and total disability" under Section 22(e)(3) of the Code or any
successor provision.
(k) "Dividend Equivalent" shall mean a right, granted to a
Participant under Section 10, to receive cash, Stock, or other property equal in
value to dividends paid with respect to a specified number of shares of Stock.
Dividend Equivalents may be awarded on a freestanding basis or in connection
with another Award, and may be paid currently or on a deferred basis.
(l) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(m) "Fair Market Value" of a share of Stock on any date shall
mean (1) the last sale price of such Stock, on such date or, if no sale takes
place on such date, the average of the closing bid and asked prices thereof on
such date, in each case as officially reported on the principal national
securities exchange on which such Stock is then listed or admitted to trading,
or (2) if such Stock is not then listed or admitted to trading on any national
securities exchange but is designated as a national market system security by
the National Association of Securities Dealers, Inc., the last trading price of
the Stock on such date, or (3) if there shall have been no trading on such date
or if the Stock is not so designated, the average of the closing bid and asked
prices of the Stock on such date as shown by the NASD automated quotation
system, or (4) if such Stock is not then listed or admitted to trading on any
national exchange or quoted in the over-the-counter market, the value determined
by the Committee.
(n) "Grantee" shall mean an officer, director or other
employee of the Group who is, pursuant to Section 4 of the Plan, selected to
participate herein with respect to the grant of an Incentive Stock Option.
(o) "Group" shall mean, collectively, Planet Hollywood and all
of its Subsidiaries now held or hereafter formed, organized, or acquired.
(p) "Incentive Stock Option" shall mean an Option that meets
the requirements of Section 422 of the Code, or any successor provision, and
that is designated by the Committee as an Incentive Stock Option.
(q) "Nonqualified Stock Option" shall mean an Option other
than an Incentive Stock Option.
(r) "Operating Earnings Per Share" shall mean the per share
net earnings of the Company for each fiscal year in a Performance Period
determined
2
<PAGE>
in accordance with generally accepted accounting principles and reported in the
Company's audited financial statements for such fiscal year.
(s) "Option" shall mean the right, granted pursuant to this
Plan, of a holder to purchase shares of Stock at a price and upon the terms to
be specified by the Committee.
(t) "Other Cash-Based Award" shall mean cash awarded under
Section 11, including cash awarded as a bonus or upon the attainment of
specified performance criteria or otherwise as permitted under the Plan.
(u) "Other Stock-Based Award" shall mean a right or other
interest granted to a Participant under Section 11 that may be denominated or
payable in, valued in whole or in part by reference to, or otherwise based on,
or related to, Stock, including, but not limited to (1) unrestricted Stock
awarded as a bonus or upon the attainment of specified Performance Goals or
otherwise as permitted under the Plan, and (2) a right granted to a Participant
to acquire Stock from the Company for cash and/or a promissory note containing
terms and conditions prescribed by the Committee.
(v) "Participant" shall mean (i) an officer or director of the
Company, whether or not an employee, (ii) an employee of the Company who is not
an officer or director, or (iii) a person or service company that performs
services in the capacity of an independent contractor on behalf of the Company,
who (or which) is, pursuant to Section 4 of the Plan selected to participate
herein; PROVIDED, HOWEVER, any Participant who (or which) is not also a Grantee
hereunder shall not be eligible to participate in the grant of an Incentive
Stock Option hereunder.
(w) "Performance Goal" shall mean the criteria and objectives,
determined by the Committee, which must be met during the applicable Performance
Period as a condition of the Participant's receipt of payment with respect to an
Award. Performance Goals may include any or all of the following: (i) attainment
of an amount of cumulative Consolidated Net Earnings during a Performance
Period: (ii) attainment of a percentage of Return on Equity for a Performance
Period; (iii) attainment of amounts of Operating Earnings Per Share of the
Company; (iv) increases in the market price of Stock or levels of total return
to shareholders during the Performance Period; (v) attainment of goals
established based on the financial performance of individual subsidiaries or
business segments of the Company relating to increases in total revenues,
operating expenses or pre-tax operating earnings; (vi) such other personal
performance goals as the Committee shall, from time to time, establish.
(x) "Performance Period" shall mean a period of three
consecutive years or such other period (which in no case may be less than one
year) as may be determined by the Committee.
(y) "Plan" shall mean the Planet Hollywood International, Inc.
First Amended and Restated 1995 Stock Award and Incentive Plan.
(z) "Plan Year" shall mean the Company's fiscal year.
3
<PAGE>
(aa) "Planet Hollywood" shall mean Planet Hollywood
International, Inc.
(bb) "Relationship" shall mean, solely with respect to an
independent contractor, such individual's or service company's capacity of
performing services as an independent contractor for the Company, and solely
with respect to a director that is not an employee of the Company, the
termination of such individual's position as a director of the Company.
(cc) "Restricted Stock" shall mean an Award of shares of Stock
to a Participant under Section 8 that may be subject to certain restrictions and
to a risk of forfeiture.
(dd) "Restricted Stock Unit" shall mean a right granted to a
Participant under Section 9 to receive Stock or cash at the end of a specified
deferral period, which right may be conditioned on the satisfaction of
Performance Goals or other criteria as may be determined by the Committee.
(ee) "Retirement" shall mean retirement of a Participant (who
is not an independent contractor) or a Grantee from the employ of the Company in
accordance with the terms of an applicable qualified retirement plan or, if such
Participant or Grantee is not covered by such a plan, on or after such
Participant's or Grantee's 65th birthday.
(ff) "Return on Equity" shall mean, for each fiscal year, the
quotient obtained by dividing (i) Consolidated Net Earnings for a fiscal year by
(ii) the average of common shareholders' equity of the Company as of the
beginning and the end of such fiscal year.
(gg) "Rule 16b-3" shall mean Rule 16b-3 under the Exchange
Act.
(hh) "Stock" shall mean shares of non-voting Class B Common
Stock, par value $.01 per share, of Planet Hollywood; PROVIDED, HOWEVER, at such
time as all of the shares of Planet Hollywood's existing Class B Common Stock
are converted into an equivalent number of shares of Planet Hollywood's Class A
Common Stock (upon the approval and filing of a Restated Certificate of
Incorporation), then "Stock" shall mean, without any further action by the Board
or the Committee and without amendment to this Plan, shares of voting Class A
Common Stock, par value $.01 per share, of Planet Hollywood.
(ii) "SAR" shall mean a tandem or freestanding stock
appreciation right, granted to a Participant under Section 7, to be paid in an
amount measured by the appreciation in the Fair Market Value of Stock from the
date of grant to the date of exercise of the right.
(jj) "Subsidiary" shall mean any corporation in an unbroken
chain of corporations beginning with the Company if, at the time of granting of
an Award, each of the corporations (other than the last corporation in the
unbroken chain) owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in the chain.
(kk) "Ten Percent Stockholder" shall mean a Grantee who, at
the time an Incentive Stock Option is to be granted to such Grantee, owns
(within the
4
<PAGE>
meaning of Section 422(b)(6) of the Code) stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of Planet
Hollywood (or any Subsidiary) within the meaning of Section 424(d) of the Code.
(ll) "Unvested Portion" shall mean that portion of an Option
or an SAR granted to a Participant or Grantee hereunder which is not a Vested
Portion. In the event a Participant or a Grantee is granted more than one Option
or SAR, the "Unvested Portion" shall refer to all of such Unvested Portions.
(mm) "Vested Portion" shall mean, as of a particular date,
that portion of an Option or an SAR granted to a Participant or Grantee
hereunder which is exercisable, and with respect to which a Participant or a
Grantee is vested, pursuant to the terms of such Participant's or Grantee's
Award Agreement. In the event a Participant or a Grantee is granted more than
one Option or SAR, the "Vested Portion" shall refer to all of such Participant's
or Grantee's Vested Portions.
3. ADMINISTRATION.
The Plan shall be administered by the Committee. The Committee shall
have the authority in its sole discretion, subject to and not inconsistent with
the express provisions of the Plan, to administer the Plan and to exercise all
the powers and authorities either specifically granted to it under the Plan or
necessary or advisable in the administration of the Plan, including, without
limitation, the authority to grant Awards; to determine the persons to whom and
the time or times at which Awards shall be granted; to determine the type and
number of Awards to be granted, the number of shares of Stock to which an Award
may relate and the terms, conditions, restrictions and Performance Goals
relating to any Award; to determine whether, to what extent, and under what
circumstances an Award may be settled, canceled, forfeited, exchanged, or
surrendered; to make adjustments in the Performance Goals in recognition of
unusual or non-recurring events affecting the Company or the financial
statements of the Company, or in response to changes in applicable laws,
regulations, or accounting principles; to construe and interpret the Plan and
any Award; to prescribe, amend and rescind rules and regulations relating to the
Plan; to determine the terms and provisions of Award Agreements; and to make all
other determinations deemed necessary or advisable for the administration of the
Plan.
The Committee shall consist of two or more persons each of whom is a
"disinterested person" within the meaning of Rule 16b-3. The Committee may
appoint a chairperson and a secretary and may make such rules and regulations
for the conduct of its business as it shall deem advisable, and shall keep
minutes of its meetings. All determinations of the Committee shall be made by a
majority of its members either present in person or participating by conference
telephone at a meeting or by written consent. The Committee may delegate to one
or more of its members or to one or more agents such administrative duties as it
may deem advisable, and the Committee or any person to whom it has delegated
duties as aforesaid may employ one or more persons to render advice with respect
to any responsibility the Committee or such person may have under the Plan. All
decisions, determinations and interpretations of the Committee shall be final
and binding on all persons, including the Company, the Participant, the Grantee
(or any person claiming any rights under the Plan from or through any
Participant or Grantee) and any stockholder.
5
<PAGE>
No member of the Board or the Committee shall be liable for any action
taken or determination made in good faith with respect to the Plan or any Award
granted hereunder.
4. ELIGIBILITY.
Awards may be granted to (i) officers, directors and other employees of
the Company, (ii) directors who are not employees of the Company, and (iii)
persons and service companies providing services in their capacities as
independent contractors for the Company, in the sole discretion of the
Committee. In determining the persons or service companies to whom Awards shall
be granted and the type of Award, the Committee shall take into account such
factors as the Committee shall deem relevant in connection with accomplishing
the purposes of the Plan.
5. STOCK SUBJECT TO THE PLAN; LIMITATION ON GRANTS. The maximum
number of shares of Stock reserved for issuance pursuant to the Plan shall be
Seven Million (7,000,000) shares, subject to the adjustment as provided herein;
PROVIDED, HOWEVER, in the event the Board approves and effects a stock split,
then the maximum number of shares of Stock reserved for issuance pursuant to the
Plan shall, without any further action by the Board or the Committee and without
amendment to this Plan, be correspondingly increased (in accordance with the
terms of such split), subject to adjustment as provided herein.1
In the event that the Committee shall determine that any dividend or
other distribution (whether in the form of cash, Stock, or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, spin-off, combination, repurchase, or share exchange, or other
similar corporate transaction or event, affects the Stock such that an
adjustment is appropriate in order to prevent dilution or enlargement of the
rights of Participants under the Plan, then the Committee shall make such
equitable changes or adjustments as it deems necessary or appropriate to any or
all of (i) the number and kind of shares of Stock which may thereafter be issued
in connection with Awards, (ii) the number and kind of shares of Stock issued or
issuable in respect of outstanding Awards, and (iii) the exercise price, grant
price, or purchase price relating to any Award; PROVIDED, THAT, with respect to
Incentive Stock Options, such adjustment shall be made in accordance with
Section 424 of the Code.
If any Award granted under this Plan is terminated or expires for any
reason whatsoever, in whole or in part, the shares (or remaining shares) of
Stock subject to that particular Award shall again be available for grant under
this Plan.
6. STOCK OPTIONS. The Committee shall have authority to grant
Nonqualified Stock Options to Participants and Incentive Stock Options to
Grantees on the following terms and conditions:
(a) NUMBER OF SHARES. Each Award Agreement shall state the
number of shares of Stock to which the Option relates.
- --------
(1) As amended by stockholder approval at the May 16, 1997 Annual Meeting of
Stockholders and Board of Director action taken in July, 1998.
6
<PAGE>
(b) TYPE OF OPTION. Each Award Agreement shall specifically
state that the Option constitutes an Incentive Stock Option or a Nonqualified
Stock Option.
(c) OPTION PRICE. Each Award Agreement shall state the Option
price. The Option price per share of Stock purchasable under an Option shall be
determined by the Committee; PROVIDED, THAT, in the case of an Incentive Stock
Option, such exercise price shall be not less than the Fair Market Value of a
share on the date of grant of such Option. The date as of which the Committee
adopts a resolution expressly granting an Option shall be considered the day on
which such Option is granted.
(d) METHOD AND TIME OF PAYMENT. The Option price shall be paid
in full, at the time of exercise, in cash or in shares of Stock having a Fair
Market Value equal to such Option price or in a combination of cash and Stock
or, in the sole discretion of the Committee, through a cashless exercise
procedure.
(e) TERM AND EXERCISABILITY OF OPTIONS. Options shall be
exercisable over the exercise period (which, with respect to Incentive Stock
Options, shall not exceed ten (10) years from the date of grant), at such times
and upon such conditions as the Committee may determine, as reflected in the
Award Agreement; PROVIDED, THAT, the Committee shall have the authority to
accelerate the exercisability or vesting of any outstanding Option (including,
without limitation, the exercisability or vesting of any outstanding Option
after the occurrence of an event described in Section 6(i) below), or extend the
exercise period, at such times and under such circumstances as it, in its sole
discretion, deems appropriate; PROVIDED, HOWEVER, with respect to Incentive
Stock Options, the Committee shall not be permitted to extend the exercise
period beyond that date which is ten (10) years from the date of grant. An
Option may be exercised, as to any or all full shares of Stock as to which the
Option has become exercisable, by written notice delivered in person or by mail
to the Secretary of Planet Hollywood, specifying the number of shares of Stock
with respect to which the Option is being exercised. For purposes of the
preceding sentence, the date of exercise will be deemed to be the date upon
which the Secretary of Planet Hollywood receives such notification, provided
that payment for such shares is received by Planet Hollywood upon such date.
(f) DELIVERY OF PURCHASED STOCK. On the exercise date
specified in the Participant's or Grantee's notice or as soon thereafter as is
practicable, Planet Hollywood shall deliver to the exercising Participant or
Grantee, a certificate or certificates for the shares of Stock then being
purchased (out of theretofore unissued Stock or reacquired Stock, as Planet
Hollywood may elect) upon full payment for such shares. The obligation of Planet
Hollywood to deliver Stock shall, however, be subject to the condition that if
at any time the Board shall determine in its discretion that the listing,
registration or qualification of the Option or such shares upon any securities
exchange or under any state or federal law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition of, or in
connection with, the Option or the issuance or purchase of Stock thereunder, the
Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Board.
7
<PAGE>
(g) FAILURE TO PAY OR ACCEPT DELIVERY. If an exercising
Participant or Grantee fails to pay for any Stock specified in such notice or
fails to accept delivery thereof, such Participant's or Grantee's right to
purchase such Stock may be terminated by Planet Hollywood.
(h) NO RIGHTS OF SHAREHOLDERS. Neither any Participant nor
Grantee nor any personal representative (or beneficiary) shall be, or shall have
any rights and privileges of, a shareholder of Planet Hollywood with respect to
any shares of Stock purchasable or issuable upon the exercise of any Option
granted hereunder, in whole or in part, prior to the date of exercise of such
Option.
(i) TERMINATION. If a Participant's or Grantee's employment
by, or Relationship with, the Company terminates, Options granted to such
Participant or Grantee prior to such termination shall remain exercisable
following the effective date of such termination as follows:
(i) CAUSE. If the Relationship of a Participant or
the employment of a Participant or Grantee by the Company is terminated for
cause, all Options granted to such Participant or Grantee shall be canceled as
of the effective date of such termination;
(ii) RETIREMENT OR DISABILITY. Upon a Participant's
or Grantee's termination of employment by reason of Retirement or Disability, or
a Participant's Relationship by reason of Disability, such Participant's or
Grantee's Vested Portion as of the effective date of such Retirement or
Disability shall remain exercisable for a period of one (1) year following such
effective date (or for such longer period as may be prescribed by the Committee,
but in no event beyond the expiration date of such Option) and such
Participant's or Grantee's Unvested Portion as of the effective date of such
Retirement or Disability shall be canceled;
(iii) OTHER TERMINATIONS OF THE RELATIONSHIP OR
EMPLOYMENT. If a Participant's Relationship or a Participant's or Grantee's
employment by the Company is terminated for any reason other than those
described in subsection (i) or (ii) above, the Vested Portion as of the
effective date of such termination of the Relationship or employment shall
remain exercisable for a period of three (3) months from the effective date of
such termination of the Relationship or employment (or for such longer period as
may be prescribed by the Committee, but in no event beyond the expiration date
of such Option) and the Unvested Portion as of the effective date of such
Participant's or Grantee's termination of the Relationship or employment shall
be canceled;
(iv) DEATH. If a Participant dies during the
Relationship or a Participant or Grantee dies while employed by the Company or
during the applicable Option exercise period following the effective date of
such Participant's or Grantee's Retirement, Disability or other termination of
the Relationship or employment, as described in subsections (ii) or (iii) above,
such Participant's or Grantee's executors, administrators, legatees or
distributees shall have a period expiring on the date one (1) year from the date
of such Participant's or Grantee's death (or for such longer period as may be
prescribed by the Committee, but in no event beyond the expiration date of such
Option) within which to exercise such Participant's or Grantee's exercisable
Options and the Unvested Portion as of the date of such Participant's or
Grantee's death shall
8
<PAGE>
become fully vested as of such date (except with respect to the death of a
Participant or Grantee occurring after the effective date of such Participant's
or Grantee's Retirement, Disability or other termination of the Relationship or
employment, in which case, such Unvested Portion as of the effective date of
such Participant's or Grantee's death shall be canceled).
A transfer of a Participant's or Grantee's Relationship
between Planet Hollywood and any Subsidiary or Affiliate, or between any
Subsidiaries or Affiliates, shall not be deemed to be a termination of such
Participant's or Grantee's Relationship. Further, the conversion of a
Participant from an independent contractor to an employee, or vice versa, shall
not be considered a termination of such Participant's Relationship or
employment.
(j) OTHER PROVISIONS. Options may be subject to such other
conditions (which conditions shall lapse; provided, the Committee shall
prescribe in its discretion the duration of such lapsing conditions) including,
but not limited to, restrictions on transferability of the shares acquired upon
exercise of such Options, as the Committee may prescribe in its discretion.
(k) INCENTIVE STOCK OPTIONS. Options granted as Incentive
Stock Options shall be subject to the following special terms and conditions, in
addition to the general terms and conditions specified in this Section 6(k).
(i) VALUE OF SHARES. The aggregate Fair Market Value
(determined as of the date the Incentive Stock Option is granted) of the shares
of Stock with respect to which Incentive Stock Options granted under this Plan
and all other plans of the Group become exercisable for the first time by each
Grantee during any calendar year shall not exceed $100,000.
(ii) TEN PERCENT STOCKHOLDER. In the case of an
Incentive Stock Option granted to a Ten Percent Stockholder, (x) the Option
Price shall not be less than one hundred ten percent (110%) of the Fair Market
Value of the shares of Stock on the date of grant of such Incentive Stock
Option, and (y) the exercise period shall not exceed five (5) years from the
date of grant of such Incentive Stock Option.
(iii) ISSUANCE TO GRANTEES. Incentive Stock Options
shall be awarded solely to those eligible persons that are Grantees hereunder.
7. STOCK APPRECIATION RIGHTS. The Committee is authorized to grant
freestanding SARs and SARs granted in tandem with an Option to Participants on
the following terms and conditions:
(a) IN GENERAL. Unless the Committee determines otherwise, an
SAR (1) granted in tandem with a Nonqualified Stock Option may be granted at the
time of grant of the related Nonqualified Stock Option or at any time thereafter
or (2) granted in tandem with an Incentive Stock Option may only be granted at
the time of grant of the related Incentive Stock Option. An SAR granted in
tandem with an Option shall be exercisable only to the extent the underlying
Option is exercisable.
(b) SARS. An SAR shall confer on the Participant a right to
receive with respect to each share subject thereto, upon exercise thereof, the
excess of
9
<PAGE>
(1) the Fair Market Value of one share of Stock on the date of exercise over (2)
the grant price of the SAR (which in the case of an SAR granted in tandem with
an Option shall be equal to the exercise price of the underlying Option, and
which in the case of any other SAR shall be such price as the Committee may
determine).
(c) TREATMENT OF RELATED OPTIONS AND TANDEM SARS UPON EXERCISE.
Upon the exercise of a tandem SAR, the related Option shall be canceled to the
extent of the number of shares of Stock as to which the tandem SAR is exercised
and upon the exercise of an Option granted in connection with a tandem SAR, the
tandem SAR shall be canceled to the extent of the number of shares of Stock as
to which the Option is exercised.
(d) METHOD OF EXERCISE. SARs shall be exercised by a
Participant only by a written notice delivered in person or by mail to the
Secretary of Planet Hollywood, specifying the number of shares of Stock with
respect to which the SAR is being exercised. If requested by the Committee, the
Participant shall deliver the Award Agreement evidencing the SAR and the related
Option (if applicable) to the Secretary of Planet Hollywood, who shall endorse
thereon a notation of such exercise and return such Award Agreement to the
Participant. For purposes of this subsection (d), the date of exercise will be
deemed to be the date upon which the Secretary of Planet Hollywood receives such
notification.
(e) FORM OF PAYMENT. Payment of the amount determined under
subsection (d) above may be made in whole shares of Stock in a number determined
based upon their Fair Market Value on the date of exercise of the SAR or,
alternatively, at the sole discretion of the Committee, solely in cash, or in a
combination of cash and shares of Stock as the Committee deems advisable. If the
Committee decides to make full payment in shares of Stock, and the amount
payable results in a fractional share, payment for the fractional share will be
made in cash. Notwithstanding the foregoing, to the extent required by Rule
16b-3, no payment in the form of cash may be made upon the exercise of a SAR to
a Participant who is subject to the reporting requirements of Section 16(a) of
the Exchange Act, unless the exercise of such SAR is made during the period
beginning on the third business day and ending on the twelfth business day
following the date of release for publication of the Company's quarterly or
annual statements of earnings or is otherwise made under circumstances which
comply with said Rule 16b-3.
(f) TERM AND EXERCISABILITY OF FREESTANDING SARS. Each
applicable Award Agreement shall provide the exercise schedule for the
freestanding SAR as determined by the Committee; PROVIDED, THAT, the Committee
shall have the authority to accelerate the exercisability of any freestanding
SAR at such time and under such circumstances as it, in its sole discretion,
deems appropriate. The exercise period shall be ten (10) years from the date of
the grant of the freestanding SAR or such shorter period as is determined by the
Committee. The exercise period shall be subject to earlier termination as
provided in Section 7(g) hereof.
(g) TERMINATION. The terms and conditions set forth in Section
6(i) hereof, relating to exercisability of Options in the event of termination
of the Relationship or employment with the Company shall apply equally with
respect to
10
<PAGE>
the exercisability of freestanding SARs following termination of the
Relationship or employment.
8. RESTRICTED STOCK. The Committee is authorized to grant Restricted
Stock to Participants on the following terms and conditions:
(a) ISSUANCE AND RESTRICTIONS. Each applicable Award Agreement
shall set forth thenumber of shares of Restricted Stock granted pursuant to the
Award Agreement. Restricted Stock shall be subject to such restrictions on
transferability and other restrictions, if any, as the Committee may impose at
the date of grant or thereafter, which restrictions may lapse separately or in
combination at such times, under such circumstances, in such installments, or
otherwise, as the Committee may determine. Such conditions may lapse in whole or
in part based upon achievement of such Performance Goals for the Performance
Period as have been set by the Committee.
(b) RESTRICTIONS. Prior to vesting, shares of Restricted Stock
may not be sold, assigned, transferred, pledged, hypothecated or otherwise
disposed of, except by will or the laws of descent and distribution, or, if then
permitted under Rule 16b-3, pursuant to a qualified domestic relations order as
defined in Title I of the Employee Retirement Income Security Act of 1974, as
amended. Certificates for shares of Stock issued pursuant to awards of
Restricted Stock shall bear an appropriate legend referring to such
restrictions, and any attempt to dispose of any such shares of Stock in
contravention of such restrictions shall be null and void and without effect.
Prior to vesting, such certificates shall be held in escrow by an escrow agent
appointed by the Committee.
(c) FORFEITURE. Subject to such exceptions as may be
determined by the Committee, if the Participant's continuous Relationship or
employment with the Company shall terminate for any reason prior to vesting of
the Restricted Stock, or to the extent any Performance Goals for the Performance
Period are not met, any shares remaining subject to restrictions shall thereupon
be forfeited by the Participant and transferred to, and reacquired by, the
Company at no cost to the Company; PROVIDED, THAT, the Committee may provide, by
rule or regulation or in any Award Agreement, or may determine in any individual
case, that restrictions or forfeiture conditions relating to Restricted Stock
will be waived in whole or in part.
(d) RIGHTS AS A STOCKHOLDER. Except to the extent restricted
under the Award Agreement, a Participant shall have all of the rights of a
Stockholder including, without limitation, the right to vote Restricted Stock
and the right to receive dividends thereon. Dividends paid on Restricted Stock
shall be either paid at the dividend payment date, or deferred for payment to
such date as determined by the Committee, in cash or in shares of unrestricted
Stock having a Fair Market Value equal to the amount of such dividends. Stock
distributed in connection with a stock split or stock dividend, and other
property distributed as a dividend, shall be subject to restrictions and a risk
of forfeiture to the same extent as the Restricted Stock with respect to which
such Stock or other property has been distributed.
(e) OTHER PROVISIONS. The Restricted Stock Agreements
authorized under the Plan shall contain such other provisions not inconsistent
with this
11
<PAGE>
Plan, including, without limitation, the imposition of restrictions upon the
transferability of Restricted Stock and conditions on vesting of Restricted
Stock as the Committee shall deem advisable.
9. RESTRICTED STOCK UNITS. The Committee is authorized to grant
Restricted Stock Units to Participants, subject to the following terms and
conditions:
(a) AWARD AND RESTRICTIONS. Delivery of Stock or cash, as
determined by the Committee, will occur upon expiration of the deferral period
specified for Restricted Stock Units by the Committee. In addition, Restricted
Stock Units shall be subject to such restrictions as the Committee may impose,
at the date of grant or thereafter, which restrictions may lapse at the
expiration of the deferral period or at earlier or later specified times,
separately or in combination, in installments or otherwise, as the Committee may
determine. Such restrictions may lapse in whole or in part based upon
achievement of such Performance Goals for the Performance Period as have been
set by the Committee.
(b) FORFEITURE. Upon termination of the Relationship or
employment during the applicable deferral period or portion thereof to which
forfeiture conditions apply, or upon failure to satisfy any other conditions
precedent to the delivery of Stock or cash to which such Restricted Stock Units
relate (or to the extent any Performance Goals for the Performance Period are
not met), all Restricted Stock Units that are then subject to deferral or
restriction shall be forfeited; PROVIDED, THAT, the Committee may provide, by
rule or regulation or in any Award Agreement, or may determine in any individual
case, that restrictions or forfeiture conditions relating to Restricted Stock
Units will be waived in whole or in part.
10. DIVIDEND EQUIVALENTS. The Committee is authorized to grant Dividend
Equivalents to Participants. The Committee may provide, at the date of grant or
thereafter, that Dividend Equivalents shall be paid or distributed when accrued
or shall be deemed to have been reinvested in additional Stock, or other
investment vehicles as the Committee may specify, provided that Dividend
Equivalents (other than freestanding Dividend Equivalents) shall be subject to
all conditions and restrictions of the underlying Awards to which they relate.
11. OTHER STOCK-OR CASH-BASED AWARDS. The Committee is authorized to
grant to Participants Other Stock-Based Awards or Other Cash-Based Awards as an
element of or supplement to any other Award under the Plan, as deemed by the
Committee to be consistent with the purposes of the Plan. Such Awards may be
granted with value and payment contingent upon achievement of Performance Goals
or any other factors designated by the Committee. The Committee shall determine
the terms and conditions of such Awards at the date of grant or thereafter.
12. GENERAL PROVISIONS.
(a) COMPLIANCE WITH LEGAL REQUIREMENTS. The Plan and the
granting and exercising of Awards, and the other obligations of the Company
under the Plan and any Award Agreement or other agreement shall be subject to
all applicable federal and state laws, rules and regulations, and to such
approvals by any regulatory or governmental agency as may be required. The
Company, in its
12
<PAGE>
discretion, may postpone the issuance or delivery of Stock under any Award as
the Company may consider appropriate, and may require any Participant or Grantee
to make such representations and furnish such information as it may consider
appropriate in connection with the issuance or delivery of Stock in compliance
with applicable laws, rules and regulations.
(b) NONTRANSFERABILITY. Awards shall not be transferable by a
Participant or Grantee except by will or the laws of descent and distribution
or, if then permitted under Rule 16b-3, pursuant to a qualified domestic
relations order as defined under the Code or Title I of the Employee Retirement
Income Security Act of 1974, as amended, or the rules thereunder, and shall be
exercisable during the lifetime of a Participant or Grantee only by such
Participant or Grantee or their guardian or legal representative.
(c) NO RIGHT TO CONTINUED EMPLOYMENT OR RELATIONSHIP. Nothing
in the Plan or in any Award granted or any Award Agreement or other agreement
entered into pursuant hereto shall confer upon any Participant or Grantee the
right to continue in the employ of the Company or in their Relationship, or to
be entitled to any remuneration or benefits not set forth in the Plan or such
Award Agreement or other agreement or to interfere with or limit in any way the
right of the Company to terminate such Participant's or Grantee's employment or
Relationship.
(d) WITHHOLDING TAXES. Where a Participant or Grantee or other
person is entitled to receive shares of Stock pursuant to the exercise of an
Option or is otherwise entitled to receive shares of Stock or cash pursuant to
an Award hereunder, the Company shall have the right to require the Participant
or Grantee or such other person to pay to the Company the amount of any taxes
which the Company may be required to withhold before delivery to such
Participant or Grantee or other person of cash or a certificate or certificates
representing such shares.
Unless otherwise prohibited by the Committee or by applicable law, a
Participant or Grantee may satisfy any such withholding tax obligation by any of
the following methods, or by a combination of such methods: (a) tendering a cash
payment; (b) authorizing the Company to withhold from the shares of Stock or
cash otherwise payable to such Participant or Grantee (1) one or more of such
shares having an aggregate Fair Market Value, determined as of the date the
withholding tax obligation arises, less than or equal to the amount of the total
withholding tax obligation or (2) cash in an amount less than or equal to the
amount of the total withholding tax obligation; or (c) delivering to the Company
previously acquired shares of Stock (none of which shares may be subject to any
claim, lien, security interest, community property right or other right of
spouses or present or former family members, pledge, option, voting agreement or
other restriction or encumbrance of any nature whatsoever) having an aggregate
Fair Market Value, determined as of the date the withholding tax obligation
arises, less than or equal to the amount of the total withholding tax
obligation. A Participant's or Grantee's election to pay his or her withholding
tax obligation (in whole or in part) by the method described in (b)(1) above is
irrevocable with respect to such exercise once it is made, may be disapproved by
the Committee and, if made by any person who is subject to Section 16(b) of the
Exchange Act, must be made (x) only during the period beginning on the third
business day following the date of release of the Company's quarterly or annual
summary statement of sales and
13
<PAGE>
earnings and ending on the twelfth business day following the date of such
release or (y) not less than six months prior to the date such Participant's or
Grantee's withholding tax obligation arises.
(e) AMENDMENT AND TERMINATION OF THE PLAN. The Board or the
Committee may at any time and from time to time alter, amend, suspend, or
terminate the Plan in whole or in part; PROVIDED, THAT, no amendment which
requires stockholder approval under applicable law or in order for the Plan to
continue to comply with Rule 16b-3 shall be effective unless the same shall be
approved by the requisite vote of the stockholders of the Company.
Notwithstanding the foregoing, no amendment shall affect adversely any of the
rights of any Participant or Grantee, without such Participant's or Grantee's
consent, under any Award theretofore granted under the Plan; PROVIDED, HOWEVER,
the Plan may be amended by either the Board or the Committee at any time without
the consent of any Participant or Grantee or the approval of Planet Hollywood's
shareholders if either the Board or the Committee determines, each in its sole
discretion, that amendment is necessary or advisable in the light of any
addition to or change in the Code or in the regulations issued thereunder, or
any federal or state securities law or other law or regulation. The power to
grant Awards under the Plan will automatically terminate ten years after the
adoption of the Plan by the Board. If the Plan is terminated, any unexercised
Award shall continue to be exercisable in accordance with its terms and the
terms of the Plan in effect immediately prior to such termination.
(f) CHANGE IN CONTROL. Notwithstanding any other provision of
the Plan to the contrary, if, while any Awards remain outstanding under the
Plan, a "Change in Control" of Planet Hollywood (as defined in this Section
12(f)) shall occur, (1) all Options and freestanding SARs granted under the Plan
that are outstanding at the time of such Change in Control shall become
immediately exercisable in full; (2) with respect to Awards granted with respect
to Performance Goals, all Performance Periods outstanding at the time of such
Change in Control shall be deemed to have been completed, the maximum level of
performance set forth under the respective Performance Goals shall be deemed to
have been attained and a pro rata portion (based on the number of full and
partial months which have elapsed with respect to each Performance Period) of
each such outstanding Award granted to each Participant or Grantee for all
outstanding Performance Periods shall become payable in cash to each Participant
or Grantee, with the remainder of each such outstanding award being canceled for
no value; and (3) all restrictions with respect to shares of Restricted Stock or
any other Awards not described in (1) and (2) above shall lapse, and such shares
or other Awards shall be fully vested and nonforfeitable. For purposes of this
Section 12(f), with respect to determining the cash equivalent value of a
Restricted Stock Unit, the Fair Market Value of a share of Stock shall be deemed
to equal the greater of (i) the Fair Market Value of a share of Stock as of the
date on which a Change in Control occurs, or (ii) the price of a share of Stock
which is paid or offered to be paid, by any person or entity, in connection with
any transaction which constitutes a Change in Control pursuant to this Section
12(f).
For purposes of this Section 12(f), a Change in Control of Planet
Hollywood shall occur upon the happening of the earliest to occur of the
following:
14
<PAGE>
(i) any "person," as such term is used in Sections
13(d) and 14(d) of the Exchange Act (other than (1) Planet Hollywood, (2) any
trustee or other fiduciary holding securities under an employee benefit plan of
Planet Hollywood, or (3) any corporation owned, directly or indirectly, by the
stockholders of Planet Hollywood in substantially the same proportions as their
ownership of Stock (each an "excluded person")), is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of Planet Hollywood (not including in the securities
beneficially owned by such person any securities acquired directly from Planet
Hollywood or its affiliates) representing 50% or more of the combined voting
power of Planet Hollywood's then outstanding voting securities;
(ii) during any period of not more than two
consecutive years, individuals who at the beginning of such period constitute
the Board, and any new director (other than a director designated by a person
who has entered into an agreement with Planet Hollywood to effect a transaction
described in clause (i), (iii) or (iv) of this subsection (f)) whose election by
the Board or nomination for election by Planet Hollywood's stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved (other than
approval given in connection with an actual or threatened proxy or election
contest), cease for any reason to constitute at least a 70% majority of the
Board;
(iii) the stockholders of Planet Hollywood approve a
merger or consolidation of Planet Hollywood with any other corporation, other
than (A) a merger or consolidation which would result in the voting securities
of Planet Hollywood outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving or parent entity) 80% or more of the combined voting
power of the voting securities of Planet Hollywood or such surviving or parent
entity outstanding immediately after such merger or consolidation or (B) a
merger or consolidation effected to implement a recapitalization of Planet
Hollywood (or similar transaction) in which no "person" (as hereinabove defined)
acquired 50% or more of the combined voting power of Planet Hollywood's then
outstanding securities; or
(iv) the stockholders of Planet Hollywood approve a
plan of complete liquidation of Planet Hollywood or an agreement for the sale or
disposition by Planet Hollywood of all or substantially all of Planet
Hollywood's assets (or any transaction having a similar effect).
(g) PARTICIPANT OR GRANTEE RIGHTS. No Participant or Grantee
shall have any claim to be granted any Award under the Plan, and there is no
obligation for uniformity of treatment for Participants or Grantees. Except as
provided specifically herein, a Participant or Grantee or a transferee of an
Award shall have no rights as a stockholder with respect to any shares covered
by any Award until the date of the issuance of a Stock certificate to him for
such shares.
(h) UNFUNDED STATUS OF AWARDS. The Plan is intended to
constitute an "unfunded" plan for incentive and deferred compensation. With
respect to any payments not yet made to a Participant or Grantee pursuant to an
Award, nothing
15
<PAGE>
contained in the Plan or any Award shall give any such Participant or Grantee
any rights that are greater than those of a general creditor of the Company.
(i) NO FRACTIONAL SHARES. No fractional shares of Stock shall
be issued or delivered pursuant to the Plan or any Award. The Committee shall
determine whether cash, other Awards, or other property shall be issued or paid
in lieu of such fractional shares or whether such fractional shares or any
rights thereto shall be forfeited or otherwise eliminated.
(j) GOVERNING LAW. The Plan and all determinations made and
actions taken pursuant hereto shall be governed by the laws of the State of
Delaware without giving effect to the conflict of laws principles thereof.
(k) EFFECTIVE DATE. The Plan shall take effect upon its
adoption by the Board, but the Plan (and any grants of Awards made prior to the
stockholder approval mentioned herein) shall be subject to the requisite
approval of the stockholders of the Company. In the absence of such approval,
such Awards shall be null and void.
(l) BENEFICIARY. A Participant or Grantee may file with the
Committee a written designation of a beneficiary on such form as may be
prescribed by the Committee and may, from time to time, amend or revoke such
designation. If no designated beneficiary survives the Participant or Grantee,
the executor or administrator of the Participant's or Grantee's estate shall be
deemed to be such Participant's or Grantee's beneficiary.
(m) INTERPRETATION. The Plan is designed and intended to
comply with Rule 16b-3 and all provisions hereof shall be construed in a manner
to so comply.
16
