UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PLANET HOLLYWOOD INTERNATIONAL, INC.
(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)
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)
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Copy to:
William J. Whelan, III, Esq., Cravath, Swaine & Moore,
825 Eighth Avenue, New York, NY 10019, (212) 474-1000
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Approximate date of commencement of proposed
sale to the public: As soon as practicable after the
effective date of this Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
Calculation of Registration Fee
Title of each Proposed Proposed
class of maximum maximum
securities to Amount offering agregate Amount of
to be to be price offering registration
registered registered per share (1) price (1) fee
Class A
Common Stock,
$0.01 10,000,000 $3.41 $34,100,000 $9,479.80
par value shares
(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(c) based on the average of the high and low prices of
the Registrant's Common Stock as reported on the New York Stock Exchange on
November 13, 1998.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission acting
pursuant to said Section 8(a) may determine.
<PAGE>
Subject to Completion, dated November 18, 1998
Prospectus
[LOGO]
Planet Hollywood International, Inc.
10,000,000 Shares
Class A Common Stock
This prospectus relates solely to the offer and resale by one of
our stockholders of up to 10,000,000 shares of our Class A Common
Stock. We will not receive any of the proceeds from the resale of
these shares by the selling stockholder.
We have entered into a registration rights agreement with the
selling stockholder pursuant to which we have filed a registration
statement (of which this prospectus is a part) covering the resale by
the selling stockholder of the shares covered under this prospectus.
The selling stockholder may offer these shares for
resale in minimum transactions of 1,000,000 shares only through
privately negotiated transactions in accordance with the restrictions
set forth in the Registration Rights Agreement.
Our common stock is traded on the NYSE under the symbol "PHL." On
November 13, 1998, the closing price for our common stock as reported
by the NYSE was $3.38 per share.
Consider carefully the risk factors beginning on page 7 of this prospectus.
Neither The Securities And Exchange Commission Nor Any State Securities
Commission Has Approved Or Disapproved Of These Securities Or Passed On The
Adequacy Or Accuracy Of This Prospectus. Any Representation To The Contrary
Is A Criminal Offense.
The information in this prospectus is not complete and may be changed. The
selling stockholder may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is declared
effective. This prospectus is not an offer to sell these securities and it
is not soliciting an offer to buy these securities in any state where the
offer or sale is not permitted.
The date of this prospectus is , 1998.
<PAGE>
TABLE OF CONTENTS
Where You Can Find More Information.......................................1
Incorporation of Certain Documents
By Reference..............................................................1
Note Regarding Forward-Looking
Statements................................................................2
The Company...............................................................3
Risk Factors..............................................................7
Use of Proceeds..........................................................14
Selling Stockholder......................................................14
Plan of Distribution.....................................................15
Legal Matters............................................................15
Experts..................................................................15
No dealer, salesperson or other person has been authorized to give any
information or to make any representations other than those contained in
this prospectus and, if given or made, such information or representations
must not be relied upon as having been authorized by us, the selling
stockholder or by any other person. This prospectus does not constitute an
offer to sell or a solicitation of an offer to buy any securities other
than the shares offered hereby, nor does it constitute an offer to sell or
a solicitation of an offer to buy any of the shares offered hereby to any
person in any jurisdiction in which such offer or solicitation would be
unlawful. Neither the delivery of this prospectus nor any sale made
hereunder shall under any circumstances create any implication that the
information contained herein is correct as of any date after the date
hereof.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and, therefore, file reports, proxy
statements and other information with the SEC. You can inspect and copy all
of this information at the Public Reference Room maintained by the SEC at
450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain information
on the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330. In addition, the SEC maintains a web site that contains
reports, proxy statements and information statements and other information
regarding issuers, such as us, that file electronically with the SEC. The
address of this web site is http:\\www.sec.gov.
This prospectus, which constitutes a part of a registration
statement on Form S-3 filed by us with the SEC under the Securities Act of
1933, omits certain of the information set forth in the registration
statement. Accordingly, you should reference the registration statement and
its exhibits for further information with respect to us and our common
stock. Copies of the registration statement and its exhibits are on file at
the offices of the SEC. Furthermore, statements contained in this
prospectus concerning any document filed as an exhibit are not necessarily
complete and, in each instance, we refer you to the copy of such document
filed as an exhibit to the registration statement. You should rely only on
the information or representations provided in this prospectus and the
registration statement. We have not authorized anyone to provide you with
different information.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us (File No. 000-28230) to incorporate by reference
the information we file with them, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
prospectus, and information that we file later with the SEC will
automatically update and supersede the information in this prospectus.
Accordingly, we incorporate by reference the documents listed below and any
future filings we make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act:
- Annual Report on Form 10-K for the fiscal year ended December
28, 1997 (filed March 23, 1998), as amended by Form 10-K/A
dated April 30, 1998 (filed April 30, 1998);
- Current Report on Form 8-K dated March 25, 1998 (filed March
26, 1998);
- Current Reports on Form 8-K dated March 9, 1998 (each filed
March 10, 1998);
- Definitive Proxy Statement dated April 20, 1998, filed in
connection with the Company's 1998 Annual Meeting of
Stockholders (filed April 14, 1998);
- Registration Statement on Form S-4, as amended, dated May 1,
1998 (Registration No. 333-51655);
- Quarterly Report on Form 10-Q for the quarterly period ended
March 29, 1998 (filed on May 13, 1998);
- Current Report on Form 8-K dated July 27, 1998 (filed on July
30, 1998);
- Current Report on Form 8-K dated November 10, 1998 (filed on
November 12, 1998);
- Quarterly Report on Form 10-Q for the quarterly period ended
June 28, 1998 (filed on August 11, 1998);
<PAGE>
- Quarterly Report on Form 10-Q for the quarterly period ended
September 27, 1998 (filed on November 12, 1998); and
- Description of our common stock which is contained
in our Registration Statement on Form 8-A filed on April 17,
1996.
All reports and other documents we subsequently file pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this prospectus and before the filing of a post-effective amendment which
indicates that all securities offered under this prospectus have been sold
or which deregisters all securities remaining unsold, shall be deemed to be
part of this prospectus from the date of the filing of such reports and
documents.
We will provide without charge to each person, including any
beneficial owner, to whom this prospectus is delivered, upon written or
oral request, a copy of any or all documents that are incorporated into
this prospectus by reference (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into the documents
that this prospectus incorporates). You should direct such requests to
General Counsel, Planet Hollywood International, Inc., 8669 Commodity
Circle, Orlando, Florida 32819, (407) 345-5300.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains certain forward-looking statements within
the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act. Our statements of plans, intentions and objectives and
statements of future economic performance contained in this prospectus
should be deemed to be forward-looking statements. Statements containing
terms such as "believes," "does not believe," "no reason to believe,"
"expects," "plans," "intends," "estimates," "anticipated" or "anticipates"
are considered to contain uncertainty and are forward-looking statements.
Forward-looking statements involve known and unknown risks and
uncertainties which may cause our actual results in future periods to
differ materially from what is currently anticipated. We make cautionary
statements in certain sections of this prospectus, including under "Risk
Factors." You should read these cautionary statements as being applicable
to all related forward-looking statements wherever they appear in this
prospectus, the materials referred to in this prospectus or the materials
incorporated by reference into this prospectus.
You are cautioned that no forward-looking statement is a guarantee
of future performance and you should not place undue reliance on any
forward-looking statement.
<PAGE>
THE COMPANY
As used in this prospectus, the "Company" refers to Planet
Hollywood International, Inc. and its consolidated subsidiaries for the
period after January 1, 1995 and to Planet Hollywood Inc., Planet Hollywood
Ltd. and combined entities (collectively, the "Predecessors") for all
periods before January 1, 1995. The Company may also be referred to in this
prospectus as "us" "we" and "our." References to a fiscal year refer in
each case to the year ending on the Sunday closest to December 31 of each
year, except that references to fiscal 1993 refer to the fiscal year ended
December 31, 1993. "Planet Hollywood", "Official All Star Cafe" and "Sound
Republic" are registered trademarks of the Company. In evaluating our
business, you should carefully consider the information set forth under the
heading "Risk Factors" beginning on page 7.
In General
We are a creator and worldwide developer of consumer brands that
transcend international barriers and capitalize on the universal appeal of
movies, sports and other entertainment-based themes. Since we commenced
operations in October 1991, the Planet Hollywood name and distinctive logo
design have become among the most widely-recognized trademarks in the
world. To date, we have promoted our brands primarily through the operation
of theme restaurants, most notably Planet Hollywood and the Official All
Star Cafe. Each of these concepts provides a unique dining and
entertainment experience in a high-energy environment and, through its
retail stores, offers a broad selection of merchandise displaying our
logos. During fiscal 1997, more than 20 million people visited our 53
Company-owned and 34 franchised restaurant units located in 29 countries
throughout the world. We had revenues of approximately $475.1 million in
fiscal 1997.
An important part of our strategy is to promote our brands through
the active involvement as stockholders of some of the world's most famous
movie stars, including Arnold Schwarzenegger, Sylvester Stallone, Bruce
Willis, Demi Moore and Whoopi Goldberg, and sports stars, including Andre
Agassi, Wayne Gretzky, Ken Griffey, Jr., Joe Montana, Shaquille O'Neal,
Monica Seles and Tiger Woods. Our celebrity stockholders generate
significant media attention and publicity for the Planet Hollywood and
Official All Star Cafe brands. We are continuing to expand our roster of
celebrity stockholders, with an emphasis on new, up-and-coming stars, in
order to appeal to broader segments of consumers.
We are in the process of launching our third major theme concept, a
tribute to the world of live music, under the brand name "Sound Republic."
In June 1998, we announced that we had joined forces with MTV: Music
Television, a division of Viacom, Inc. ("MTV"), to promote and develop the
Sound Republic brand. MTV will be a minority investor in Sound Republic and
has agreed to help promote and develop the Sound Republic brand with
regular broadcasts of live music performances and other related programming
from Sound Republic locations worldwide. As with our two existing theme
concepts, Sound Republic is expected to have substantial celebrity
involvement and a distinctive brand name and logo that can be applied to
restaurants, lodging and merchandise.
We will initially promote Sound Republic through theme restaurants
with integrated retail stores. Each of the Sound Republic restaurants will
feature live performances by a broad range of musical artists, either in a
connected club facility or in an integrated stage area within the
restaurant itself. Our first unit in Leicester Square in London recently
held its grand opening to the public on October 17, 1998. We expect to
locate our second unit in Times Square in New York City. We have designed
each of these two units to have approximately 15,000 square feet of
restaurant space seating up to 350 people with an adjacent live music club
with room for approximately 600-800 people.
Our theme restaurants are characterized by distinctive design
features and are generally located at high profile sites or in major
tourist markets. Units generally range in size from approximately 12,000 to
36,000 square feet and in seating capacity from 230 to 600 persons, and
offer high-quality, popular cuisine, attentive service and an atmosphere of
excitement created by combining unique layouts and decor with
custom-designed videos and audio soundtracks. Each unit prominently
displays memorabilia associated with its theme, including costumes and
props from popular movies (in the case of Planet Hollywood units) and
celebrity uniforms and athletic equipment (in the case of Official All Star
Cafe units). Each unit's integrated retail store offers premium-quality
fashion merchandise, such as jackets, T-shirts, sweatshirts and hats, as
well as other souvenir items.
<PAGE>
The Official All Star Cafe units also offer athletic apparel for various
sports, such as tennis, basketball and baseball, as well as duffle bags and
equipment bags, all of which incorporate an Official All Star Cafe "team"
theme. Sales of merchandise yield higher operating margins than do food and
beverage sales and provide additional off-site promotion and retail
distribution opportunities for our brands.
Our strategy is to capitalize on our brand recognition across a
wide range of businesses in addition to theme restaurants. Accordingly, we
have embarked upon several strategic ventures in movie theaters, lodging,
gaming and consumer products. These ventures, which we are generally
developing in association with other companies that are leaders in their
respective industries, include the following:
* Movie Theaters. We have formed a 50/50 joint venture with AMC
Entertainment, Inc. ("AMC"), one of the nation's leading motion
picture exhibitors, that will develop, own and operate a series of
multi-screen, movie theater megaplexes under the brand name Planet
Movies by AMC. Each megaplex facility will feature as many as 30
screens and a dramatically designed entertainment center that will
include restaurants, including in most facilities a Planet
Hollywood unit and/or an Official All Star Cafe unit, as well as
various refreshment and merchandise kiosks. The first Planet Movies
by AMC multi-screen megaplex, which we expect to open in the Summer
of 1999 near Columbus, Ohio, will occupy approximately 160,000
square feet with total seating capacity for approximately 6,000
persons. This initial megaplex will include an approximately 7,500
square foot Planet Hollywood restaurant and a similar sized
Official All Star Cafe restaurant, each with its own merchandise
store, and various refreshment kiosks.
* Sound Republic Hotel and Casino. We and a subsidiary of Aladdin
Gaming Holdings, LLC ("Aladdin") previously announced in October
1997 an intention to form a 50/50 joint venture to construct, own
and operate a music-themed hotel, casino and entertainment center
(the "Las Vegas Project") as part of a 35-acre complex on the site
of the former Aladdin hotel and casino at the center of Las Vegas
Boulevard in Las Vegas, Nevada. On September 17, 1998, Aladdin
announced that it had not yet concluded its negotiations with us
concerning the Las Vegas Project and that it intended to pursue
other prospective joint venture partners for the development,
construction and opening of a hotel and casino with a music
entertainment theme at the site. Aladdin did state that it would
renew discussions with us if and when it was appropriate.
If completed, the Las Vegas Project, originally targeted for
completion in 2000, will be an extension of our Sound Republic
brand and is expected to include a 1,000-room hotel, a
40,000-square-foot casino containing approximately 1,500 slot
machines and 50 gaming tables, a Sound Republic themed restaurant
with a merchandise store and a live performance club facility
accommodating 1,000 people, as well as additional restaurants, an
outdoor swimming pool and other amenities. In addition to
participation in the Las Vegas Project's profits through our
planned 50% equity interest in the joint venture, we would also
receive license fees for the use of the Sound Republic name and
logo and consulting fees for the provision of certain services. The
Las Vegas Project is subject to the resumption of negotiations with
Aladdin and the execution of definitive documentation and the
receipt of necessary construction financing.
* Official All Star Hotel. In the Fall of 1997, we acquired a 20%
equity interest in a joint venture with Vornado Realty Trust and an
affiliate of Mr. Ong Beng Seng, one of our directors and principal
stockholders. In September 1997, the joint venture acquired the
Hotel Pennsylvania, a 20-story, 1,700-room hotel (once known as the
Statler Hotel) located directly opposite the entrance to New York
City's famed Madison Square Garden. While continuing its normal
operations, the hotel, which is New York City's fourth largest, is
intended to be renovated and renamed the Official All Star Hotel.
The joint venture expects that the renovated guest rooms and common
areas will feature theming that celebrates the world of sports,
including memorabilia from our sports celebrity stockholders and
other prominent athletes and sports legends. In addition to its
guest rooms, restaurants and banquet and conference facilities, the
remodeled hotel (like its predecessor) will contain approximately
400,000 square feet of rentable retail space. In addition to
participation in the hotel's profits
<PAGE>
through our 20% equity interest in the joint venture, we will
receive license fees for the use of the Official All Star name and
logo. In the Spring of 1998, Ong Beng Seng's affiliate sold its
interest in the Official All Star Hotel to Vornado Realty Trust for
a profit.
* Planet Hollywood Hotel. We have acquired a 20% equity interest in
a joint venture with several prominent real estate developers to
construct and own a 50-story, 560-room, movie-themed hotel at the
intersection of Broadway and 47th Street in New York City's Times
Square redevelopment area. We expect the new Planet Hollywood Hotel
to be characterized by striking, modern decor and to include motion
picture memorabilia from our collection. Upon its completion the
hotel will also become the site for a new Company-owned Planet
Hollywood flagship restaurant with seating for more than 400
patrons that will replace our existing restaurant on West 57th
Street in New York City. In addition to participation in the
hotel's profits through our 20% equity interest in the joint
venture, we will receive license fees for the use of the Planet
Hollywood name and logo.
* Cool Planet Ice Cream. We plan to develop and open Cool Planet
ice cream and dessert units that will feature Cool Planet ice cream
products. The units generally will range in size from 800 to 1,400
square feet, will have counter service and a small table seating
area and will feature unique decor derived from the Planet
Hollywood theme concept. Cool Planet ice cream will be added to the
menu in our Planet Hollywood restaurants and is anticipated to be
sold in Planet Movies by AMC megaplexes. During the Summer of 1998,
we opened our first two Cool Planet units in Santa Monica and
Irvine, California. We anticipate opening an additional Cool Planet
unit in Anaheim, California, during the Fall/Winter of 1998. Whoopi
Goldberg, one of our principal celebrity stockholders, has agreed
to serve as spokesperson for Cool Planet products and Cool Planet
units.
In June 1998, we announced that Cool Planet, Inc., one of our
subsidiaries, entered into an agreement with Host Marriott Services
Corporation, the nation's largest travel and entertainment
concessionaire, to form a joint venture that will develop Cool
Planet locations in select Host Marriott Services' airports, travel
plazas and mall locations. Under such agreement, the joint venture
may develop up to ten Cool Planet locations.
Other Recent Developments
On March 25, 1998, we issued $250.0 million of our 12% Senior
Subordinated Notes due 2005 (the "Notes). Interest on the Notes is payable
semi-annually on April 1 and October 1 of each year. The documents
governing the Notes contain certain covenants which, among other things,
limit our ability to:
o issue additional debt and preferred stock,
o pay dividends and
o sell assets.
At the same time as the Notes offering, we replaced our existing
credit facility with a $65.0 million multi-currency revolving credit
facility and a $35.0 million LIBOR-based leveraged lease facility (the
"Credit Facility"). The Credit Facility fees include an annual facility fee
on the utilized revolving credit and a commitment fee on the unused
revolving credit. Interest rates are variable, with either prime or LIBOR
indexes. The Credit Facility also provides for the issuance of up to $10.0
million of letters of credit and up to $25.0 million of multi-currency
advances. The Credit Facility matures on March 25, 2000; provided, however,
that we may extend the maturity date at our option to March 25, 2001 if we
meet certain financial criteria. Currently, we are not in compliance with
certain financial covenants of the Credit Facility and we are in
negotiations regarding the amendment and/or waiver of certain terms of the
Credit Facility, which, if successful, will cure such noncompliance. We
expect to conclude such negotiations by the end of November 1998. See "Risk
Factors - Leverage; Ability to Service Debt" beginning on page 7.
In July 1998, we retained Goldman Sachs & Co. to join Bear Stearns
& Co., Inc., who we had retained five months earlier, in connection with a
review of our financial and strategic alternatives designed to maximize
long-term stockholder value.
<PAGE>
On July 27, 1998, we appointed William H. Baumhauer to the position
of President and Chief Operating Officer. Mr. Baumhauer is responsible for
all Company-wide operations and oversees and manages the development of
strategic joint ventures, extensions of our brands and new business
opportunities. Mr. Baumhauer also evaluates our activities to identify
opportunities for cost savings and increased operating efficiencies. Robert
Earl will continue as our Chief Executive Officer and is now able to devote
greater attention to strategic activities and the creative and marketing
aspects of our business.
On September 17, 1998, at a regular meeting of the Company's Board
of Directors, the Board of Directors increased the number of directors of
the Company from 9 to 10, and elected William Baumhauer to fill such
vacancy. Mr. Baumhauer will serve as a Class I director and his term will
expire in 2000. In addition, the Board of Directors expanded our Audit
Committee from 4 to 5 members, consisting of Claudio Gonzalez, Michael
Montague (new member), Ong Beng Seng, Isadore Sharp and Michael Tarnopol.
Finally, the Board of Directors elected Robert Earl, Michael Montague (new
member) and Isadore Sharp to serve as members of our Compensation
Committee.
Effective November 10, 1998, Keith Barish resigned as Chairman of
the Board of Directors of the Company. At a special Board of Directors
meeting held on November 10, 1998, the Board of Directors elected Robert
Earl to serve as the new Chairman. Mr. Barish cited the recent addition of
Mr. Baumhauer to the Company as a timely opportunity for him to step down
as Chairman. Mr. Barish remains as a member of the Board of Directors.
------------------------------------
We are a Delaware corporation and our principal executive offices
are located at 8669 Commodity Circle, Orlando, Florida 32819. Our telephone
number is (407) 363-7827.
<PAGE>
RISK FACTORS
An investment in our common stock involves a high degree of risk.
You should carefully review the information set forth below, as well as
other information appearing elsewhere in this prospectus, before purchasing
any shares. The following are the most significant risk factors that we
believe are material to investors who purchase or own our common stock.
Participation in Joint Ventures. We have begun, and we intend to
continue, investing a substantial portion of the proceeds of our recent
Notes offering in, and we will have continuing obligations to, entities
that are not wholly owned or controlled by us, including the joint venture
vehicles for:
o Planet Movies by AMC,
o the Las Vegas Project (see discussion in "The Company -
*Sound Republic Hotel and Casino" beginning on page 4),
o the Official All Star Hotel and
o the Planet Hollywood Hotel.
In addition, we may incur obligations to third parties under
guarantees of indebtedness and other obligations of various joint venture
entities. Certain of these entities have incurred and, in the future, may
incur indebtedness that contains terms limiting or prohibiting the payment
of dividends or distributions to the equity investors in such entities
(including us). In addition, because we do not control distributions by
these entities, you cannot be sure that, even if funds are available for
distribution by these entities, we will receive any distributions from
these entities.
Leverage; Ability to Service Debt. As of our third fiscal quarter
ended September 27, 1998, our indebtedness totaled approximately $258.9
million. At that date, our stockholders' equity was approximately $327.0
million. Subject to certain restrictions contained in the documents
governing the Notes, we may incur additional indebtedness from time to
time. As a consequence of the indebtedness represented by the Notes and
indebtedness incurred pursuant to the Credit Facility (if any):
o a substantial portion of our cash flow from operations
must be dedicated to debt service and will not be
available for other purposes,
o our ability to obtain additional debt financing in the
future for working capital, capital expenditures or
acquisitions may be limited and
o our flexibility to react to changes in the industry and
changing business and economic conditions may be
limited.
Our ability to pay interest on the Notes and to satisfy our other
debt obligations depends upon our future operating performance, which may
be affected by prevailing economic conditions and financial, business and
other factors, many of which are beyond our control. We currently
anticipate that our operating cash flow will be sufficient to meet our
operating expenses and to service our debt obligations as they become due.
If we are unable to service our indebtedness, we will be forced to adopt
one or more other strategies that may include reducing or delaying capital
expenditures, selling assets, restructuring or refinancing our indebtedness
or seeking additional equity capital. You cannot be sure that any of these
strategies could be effected on satisfactory terms, if at all.
As a result of operating losses experienced in fiscal 1998, we
are not in compliance with certain financial covenants of the Credit
Facility (specifically, our Fixed Charge Coverage Ratio and our Total
Funded Debt to Consolidated EBITDA Ratio, as such terms are defined in the
Credit Facility documents). We do not owe any amounts under the revolving
credit portion of the Credit Facility. Approximately $35 million is
outstanding under the leveraged lease portion of the Credit Facility. We
are currently in negotiations regarding the amendment and/or waiver of
<PAGE>
certain terms of the Credit Facility, which, if successful, will cure our
noncompliance. We expect to conclude such negotiations by the end of
November 1998. You cannot be sure, however, that we will be able to effect
such amendments and/or waivers to the Credit Facility on terms satisfactory
to us, if at all. If we are unable to effectuate such amendments and/or
waivers, we will repay all amounts outstanding under the Credit Facility
and/or arrange alternative financing with another lender. We are in full
compliance with the terms of the documents governing the Notes.
Ability to Manage Growth. We have experienced substantial growth in
a relatively short period of time, including an increase in the number of
Company-owned and franchised units. This rapid rate of growth has imposed,
and our new Sound Republic concept and strategic ventures may continue to
impose, significant strains on our management. Our failure to adequately
manage our growth, or to adjust to unexpected difficulties we may encounter
during expansion of our activities, could have a material adverse impact on
our results of operations and financial condition.
Declines in "Same Unit" Revenues. We operate in an increasingly
competitive environment with numerous competing themed restaurants entering
many of our existing markets and, as we continue to expand into smaller
markets, revenues of Company-owned units have declined on a "same unit"
basis:
Approximate Decline in
Comparable Period "Same Unit" Revenues
Fiscal 1997 to Fiscal 1996 11%
1st Quarter Fiscal 1998 to 1st Quarter Fiscal 1997 13%
2nd Quarter Fiscal 1998 to 2nd Quarter Fiscal 1997 17%
3rd Quarter Fiscal 1998 to 3rd Quarter Fiscal 1997 20%
Although we are undertaking several initiatives to improve our
performance, you cannot be sure that these initiatives will be successful
and that "same unit" revenues will not continue to decline. In addition,
during the initial six to twelve months following its opening, a new unit
typically realizes higher revenues than in subsequent periods of operation.
The first six months of a unit's operations are not included in the "same
unit" analysis.
In fiscal 1997, 18 of the 53 Company-owned units were included in
the "same unit" analysis and we expect 26 units to be included in fiscal
1998. Our franchised units also have experienced declines in "same unit"
revenues and you cannot be sure that "same unit" revenues for such units
will not continue to decline.
Industry Conditions and Competition. The restaurant and retail
merchandising industries are affected by changes in consumer tastes and by
international, national, regional and local economic conditions and
demographic trends. Discretionary spending priorities, traffic patterns,
tourist travel, weather conditions, employee availability and the type,
number and location of competing restaurants, among other factors, also
directly affect the performance of our units. Changes in any of these
factors in the markets where we currently operate units could adversely
affect our results of operations. Moreover, the theme restaurant industry
is relatively young, is particularly dependent on tourism and has seen the
emergence of a number of new competitors. The restaurant and retail
merchandising industries are highly competitive based on the type, quality
and selection of the food or merchandise offered, price, service, location
and other factors. Many well-established companies with greater financial,
marketing and other resources and longer operating histories than us
compete with us in many markets. In addition, some competitors have design
and operating concepts similar to ours. There can be no assurance that we
will be able to respond to various competitive factors affecting the
restaurant and retail industries.
The hotel/casino industry in Las Vegas is highly competitive.
Should negotiations between us and Aladdin be renewed regarding the Las
Vegas Project, or if we were to pursue a different hotel/casino venture in
Las Vegas, such venture would be competing with many other hotels located
on Las Vegas Boulevard and with other major hotels in downtown Las Vegas.
Direct competitors of any such venture could include the following
theme-oriented resorts, any of which may have greater financial and other
resources than our venture:
<PAGE>
* Caesar's Palace Hotel * The Mirage
* Treasure Island Hotel and Casino * MGM Grand Hotel and Casino
* Hard Rock Hotel and Casino
We may also experience additional competition from several new major resort
projects under construction and the expansion of several existing resorts,
which are expected to add approximately 20,000 hotel rooms to the Las Vegas
inventory by 1999. The operating results of any Las Vegas hotel/casino
venture in which we may participate could be materially adversely affected
by such competitors and by excess hotel and gaming capacity generally. The
hotel/casino operations of a Las Vegas venture would also compete, to some
extent, with other hotel/casino facilities in Nevada, other states which
authorize gaming and elsewhere in the world. In light of the recent
legalization in several states of casino gaming and the passage in the
United States Congress of the Indian Gaming Regulatory Act in 1998, we
expect many competitors to enter the hotel/casino industry, some of which
may have greater financial and other resources than us. Such proliferation
of gaming activities could materially adversely affect the business of a
Las Vegas hotel/casino venture.
The motion picture exhibition industry is affected by a number of
factors, including the availability of desirable motion pictures and their
performance in the exhibitors' markets. Poor performance of, or disruption
in the production of or access to, motion pictures could adversely affect
the performance of the Planet Movies by AMC joint venture. In addition,
were the joint venture to experience poor relationships with one or more
major motion picture distributors, its business could be adversely
affected. The joint venture will be subject to competition with other
exhibitors in obtaining films, attracting patrons and securing new theater
sites. In addition, the joint venture's theaters will face competition from
a number of non-theatrical motion picture delivery systems, such as pay
television, pay-per-view and home video systems, and from other forms of
entertainment that compete for the public's leisure time and disposable
income.
Risk of New Ventures. Our new Sound Republic concept and our
various new strategic ventures are unproven. We cannot assure you that
Sound Republic or any new strategic venture that we pursue will be
successful or that any such strategic venture will contribute to our
revenues and cash flow. Our Official All Star Cafe theme concept remains in
a relatively early stage of its development and has not yet met our
original expectations. In light of Aladdin's recent announcement regarding
the failure to conclude negotiations with us concerning the Las Vegas
Project, you cannot be sure that the Las Vegas Project will be pursued. See
"The Company - * Sound Republic Hotel and Casino" beginning on page 4.
Furthermore, in connection with Mr. Baumhauer's appointment as
President and Chief Operating Officer, all our activities and strategic
initiatives are being reviewed in connection with an attempt to identify
opportunities for cost savings and increased operating efficiencies. You
cannot be sure, therefore, that any of our ventures will continue as
planned.
Risks Associated with International Operations. In fiscal 1997,
revenues from foreign units constituted approximately $140.2 million (or
29%) of our total revenues:
o Revenues from Company-owned units outside the United
States--approximately 25% of total revenues.
o Royalties and initial franchise fees from foreign franchised
units-- approximately 4% of total revenues.
We also realize income from foreign units in which we own a minority
interest.
Foreign operations present risks that are different than those
encountered in North America, including potential political, social and
economic instability (such as the recent turmoil in Asia and Russia where a
total of 14 of our franchised units are located, and the recent bombing of
a franchised unit in South Africa). Uncertain economic conditions in
certain foreign markets also may adversely affect the operating results of
franchised units in those markets as well as the collectibility of
receivables from those units.
<PAGE>
In addition, our international operations expose us to fluctuations
between the U.S. dollar, which is the reporting currency in our financial
statements, and the local currencies in which units outside the United
States transact business and on which royalties from franchises located
outside the United States are based. We have not historically engaged in
any significant hedging activities with respect to our non-U.S. dollar
operations.
We may experience adverse results in our foreign operations and
significant currency fluctuations may adversely affect our reported
results. International commercial activities may also be limited or
disrupted by the imposition of government controls, unique license
requirements, political instability, trade restrictions, changes in tariffs
or taxes, regional economic conditions (such as currently in Asia),
currency fluctuations and changes, and difficulties in staffing and
managing such complexities.
Dependence on Key Executives and Directors. Our success has
depended to a significant extent upon the contributions of our three most
senior executives and directors:
Expiration of Current Term
Name Position of Employment Agreement
Robert Earl Chief Executive Officer, December 2001
Chairman of the Board of Directors
and Director
William Baumhauer President, Chief Operating Officer July 2001
and Director
Keith Barish Director Not Applicable
Messrs. Earl and Barish are also founding and principal
stockholders of the Company. Mr. Barish resigned as Chairman of the Board
of Directors effective November 10, 1998. Mr. Barish, who remains on the
Board of Directors, cited the recent addition of Mr. Baumhauer as a timely
opportunity for him to step down as Chairman. The Board of Directors has
elected Mr. Earl as Chairman of the Board of Directors. In connection with
his resignation, Mr. Barish terminated his employment agreement with us.
You cannot be sure that Mr. Barish will remain as a Director. In the event
of Mr. Barish's or any of the senior executives' departure from the
Company, we cannot assure you that we would be able to attract or retain
suitable successors. Any such departure could materially adversely affect
us. For example, pursuant to certain of our key contractual arrangements,
including the lease for the Planet Hollywood unit in Orlando, Florida, upon
the death, physical or mental incapacitation or retirement of Mr. Earl, we
may lose certain of the substantial benefits that have contributed to our
success or that we expect will contribute to our future growth. We have
obtained a $25 million key man life insurance policy covering Mr. Earl, but
you cannot be sure that the coverage provided by such policy will be
sufficient to compensate us for the loss of Mr. Earl's services. Our future
success will depend, in part, on our continuing ability to attract, retain
and motivate qualified personnel.
Fluctuations in Quarterly Results of Operations; Seasonality. As we
enter new markets and develop new concepts, quarterly results may fluctuate
more significantly. Moreover, as a result of the revenues associated with
each new Company-owned unit and the recognition of franchise fees, the
timing of new unit openings may result in significant fluctuations in
quarterly results. In addition, our revenues have generally been seasonal
because tourists tend to patronize our units in greater numbers during the
summer and year-end holiday seasons. Although units in certain locations
are affected by different seasonal influences, we have historically
experienced our strongest operating results from June through August. You
cannot be sure, however, that such trend will continue.
Fluctuations in Direct Merchandise Sales. During the past two
fiscal years, we have sold various items of our branded merchandise
directly to specialty and other retailers with a worldwide distribution and
marketing presence to increase the exposure of our brands to consumers.
Direct sales of merchandise have generally been made on an opportunistic
basis and you cannot be sure that such direct sales, if any, will continue
at historical levels.
Control by Principal Stockholders. Three of our directors and
Kingdom Planet Hollywood, Ltd. beneficially own the following percentages
of the outstanding common stock:
<PAGE>
Approximate Percentage of Common
Person/Entity and Position Stock Beneficially Owned
Robert Earl - Chief Executive Officer,
Chairman of the Board of Directors
and Director (1) 23%
Keith Barish - Director (1)(2) 23%
Ong Beng Seng - Director (1)(3) 13%
Kingdom Planet Hollywood, Ltd.(3) 16%
(1) Information concerning these individuals has been summarized from our
Definitive Proxy Statement dated April 20, 1998, a document which is
incorporated by reference into this prospectus. See the Definitive
Proxy Statement for a more detailed description of these stock
holdings.
(2) See "Selling Stockholder" beginning on page 13.
(3) The percentage of our common stock beneficially owned by these
individuals gives effect to the sale of 10,000,000 shares of our
common stock by Leisure Ventures Pte Ltd., an affiliate of Ong Beng
Seng, to Kingdom Planet Hollywood, Ltd., pursuant to a Stock Purchase
Agreement dated August 17, 1998.
Accordingly, until there is a substantial decrease in the percentage
of common stock held by such stockholders, they may have significant
influence over our affairs. If they choose to act together, they will be
able to elect all the members of the Board of Directors and influence
significantly the approval of important corporate transactions and other
matters requiring stockholder approval without the approval of minority
stockholders.
Year 2000 Compliance. Year 2000 compliance is the ability of computer
hardware and software to respond to the problems posed by the fact that
computer programs have traditionally been written using two digits rather
than four to define the applicable year. As a consequence, unless modified,
computer systems will not be able to differentiate between the year 2000
and 1900. Failure to address this problem could result in system failures
and the generation of erroneous data. In 1997, we assessed our own year
2000 compliance and, based on such assessment, we expect to upgrade our
critical computer systems to make them year 2000 compliant before the end
of fiscal 1999 without material expenditures. However, we may be adversely
affected to the extent that other entities that we do business with,
particularly credit card processors, are unable to achieve year 2000
compliance on a timely basis.
Government Regulation. The restaurant industry and, to a lesser
extent, the retail merchandising industry, are subject to numerous Federal,
foreign, state and local government regulations, including those relating
to:
* the preparation and sale of food * the sale of alcoholic beverages
* building and zoning requirements * sanitation
* environmental protection * relationships with employees
* minimum wage requirements * unemployment
* overtime * workers' compensation
* working and safety conditions * citizenship requirements
<PAGE>
Any change in the current status of such regulations, including an increase
in the minimum wage, employee benefit costs, workers' compensation
insurance rates or other costs associated with employees, could
substantially increase our compliance and labor costs.
We may also be subject in certain states to "dram-shop" statutes,
which generally grant to a person who is injured by an intoxicated person
the right to recover damages from an establishment that wrongfully served
alcoholic beverages to the intoxicated person.
In addition, any gaming facilities that would form a part of a Las
Vegas hotel/casino venture would be subject to extensive regulation by the
state and local regulatory authorities of the State of Nevada. This would
include regulation of the ownership of our securities. The Nevada State
Gaming Control Board and the Nevada Gaming Commission and other local,
county and state regulatory agencies may, in compliance with certain
statutory and regulatory procedures, limit, condition, suspend or revoke a
license or approval to own our stock for any cause deemed reasonable by
such licensing agency. Substantial fines for each violation of the gaming
laws or regulations could be levied against us and persons involved.
Furthermore, a supervisor could be appointed by a state court at the
request of the Nevada Gaming Commission to operate any nonrestricted gaming
establishment which we operate if our licenses are revoked, suspended or
otherwise lapse. In such extraordinary circumstances, earnings generated by
gaming operations during a supervisor's appointment (except for reasonable
rental value) could be forfeited to the State of Nevada. You cannot be sure
that we or any Las Vegas hotel/casino venture will maintain any of the
required licenses, registrations, findings of suitability, approvals and
permits or that such gaming licenses, permits, etc. will be obtained or
renewed on a timely basis.
Related Party Transactions. In the past, we have entered into business
transactions with certain of our principal stockholders, and we may
continue to enter into such transactions in the future. We have no current
plans to do so and our policy is not to enter into transactions with
related persons unless the terms thereof are at least as favorable to us as
those that could be obtained from unaffiliated third parties and/or are
approved by a majority of our disinterested directors.
Shares Eligible for Future Sale. At November 13, 1998, we had
approximately 97,221,632 shares of our common stock outstanding. Of such
shares, we estimate that approximately 43,000,000 are unregistered,
excluding the shares of the selling stockholder offered by this prospectus
and excluding 15,699,237 shares of Kingdom Planet Hollywood, Ltd. submitted
for registation on a Form S-3 filed with the SEC on November 12, 1998. Some
of these unregistered shares may be freely traded or may be traded under
certain volume and other restrictions set forth in Rule 144 promulgated
under the Securities Act.
We have reserved the following shares of our common stock for issuance
pursuant to the following stock plans:
1995 Stock Award and Incentive Plan 7,000,000 shares
1995 Celebrity Stock Award and Incentive Plan 6,000,000 shares
Employee Stock Purchase Plan 2,000,000 shares
At October 30, 1998, approximately 10,817,288 shares were subject to
outstanding options with a weighted average exercise price of approximately
$9.29 per share. Since both of the incentive plans have been registered on
Form S-8 with the SEC, shares of common stock issued in conjunction with
the incentive plans are generally eligible for resale in the open market.
No prediction can be made as to the effect, if any, that sales or
resales of shares of common stock under Rule 144 or otherwise, or the
future availability of such shares for sale or resale, will have on the
market price of the common stock. Sales or resales of substantial amounts
of common stock in the public market, or the perception that such sales or
resales could occur, could adversely affect prevailing market prices for
common stock.
Certain Anti-takeover Provisions. Our certificate of incorporation and
bylaws contain certain provisions that may discourage other persons from
attempting to acquire control of the Company. These provisions include, but
are not limited to:
<PAGE>
o a staggered Board of Directors,
o the authorization of the Board of Directors to issue
shares of undesignated preferred stock in one or more
series without the specific approval of the holders of
common stock,
o the establishment of advance notice requirements for
director nominations and actions to be taken at annual
meetings and
o the requirement that two-thirds of the stockholders
eligible to vote are required to approve any change to
the bylaws or certain provisions of the certificate of
incorporation.
In addition, the certificate of incorporation and the bylaws permit
special meetings of the stockholders to be called only by the Chief
Executive Officer or upon the request of a majority of the Board of
Directors, and deny stockholders the ability to call such meetings. Such
provisions, as well as the provisions of Section 203 of the Delaware
General Corporation Law (to which we are subject), could impede our
involvement in a merger, consolidation, takeover or other business
combination or discourage a potential acquiror from making a tender offer
or otherwise attempting to obtain control of the Company. In certain
circumstances, the fact that corporate devices are in place that will
inhibit or discourage takeover attempts could reduce the market value of
our common stock.
No Foreseeable Dividends. We have never paid cash dividends on our
common stock and we do not anticipate paying cash dividends in the
foreseeable future. We intend to retain future earnings for reinvestment in
our business. Any future determination to pay cash dividends will be at the
discretion of the Board of Directors and will be dependent upon our
financial condition, results of operations, capital requirements and such
other factors as the Board of Directors deems relevant.
Volatility of Stock Price. Our common stock has experienced
substantial price volatility, and such volatility may continue to occur in
the future. Additionally, the stock market has from time to time
experienced significant price and volume fluctuations that are unrelated to
the operating performance of particular companies. These broad market
fluctuations may adversely affect the market price of our common stock. In
addition to such broad market fluctuations, factors such as the following
may have a significant effect on our market price of common stock:
o fluctuations in our operating results,
o announcements of new ventures or products by us or our
competitors,
o the perceived ability of the Company to obtain any new
financing necessary,
o public perception as to the viability of products
developed by us or our competitors,
o changes in analysts' recommendations regarding the
Company and
o general market conditions.
USE OF PROCEEDS
We will not receive any proceeds from the resale of the shares offered
hereby nor will such proceeds be available for our use or benefit. All
proceeds from the resale of such shares will be for the account of the
selling stockholder. See "Selling Stockholder" and "Plan of Distribution"
below.
<PAGE>
SELLING STOCKHOLDER
The selling stockholder under this prospectus is Keith Barish, one of
our co-founders and directors.
Mr. Barish recently resigned as Chairman of the Board of Directors.
Mr. Barish remains as a member of the Board of Directors. See "The
Company--Other Recent Developments." In connection with Mr. Barish's
resignation, we entered into an agreement with Mr. Barish. The agreement
includes mutual releases, registration rights for certain of Mr. Barish's
shares of our common stock and restrictions on Mr. Barish's ability to sell
the remainder of his shares not covered by such registration rights.
Pursuant to this agreement, we agreed to file with the SEC and to keep
effective for two years a registration statement (of which this prospectus
is a part) covering the resale of a portion of Mr. Barish's shares of our
common stock. In connection with such registration, we will pay our own
legal and accounting expenses as well as the SEC registration fees, while
Mr. Barish will pay his own legal expenses and any brokerage or similar
fees in connection with the resale of his shares. Mr. Barish has also
agreed that, before May 4, 2000, he will not sell any of his shares that
are not covered by the registration statement; provided, however, that Mr.
Barish is entitled to sell such unregistered shares in certain privately
negotiated transactions as set forth in the agreement. Any purchaser of
such shares will be required to agree to be bound by the same restrictions
and therefore such shares will not be freely tradeable until after May 4,
2000.
We previously filed with the SEC our agreement with Mr. Barish as an
exhibit to our Current Report on Form 8-K (dated November 10, 1998), which
report and exhibits thereto are incorporated herein by reference. We refer
you to this exhibit, as well as to the "Plan of Distribution" section
below, for a more complete and detailed description of the rights granted
to and obligations imposed upon us and Mr. Barish under such agreement.
The following table sets forth the name of the selling stockholder,
the total number of shares of our common stock beneficially owned by the
selling stockholder as of the date of this prospectus and the number of
shares which may be offered pursuant to this prospectus. This information
is based upon information provided by the selling stockholder.
Total number of shares of our Ownership after
common stock owned before offering (3)
offering (1) Number of
Name of shares being
Selling Stockholder offered
Number of Number of
Shares Percent (2) Shares Percent(2)
Keith Barish 22,075,563 23% 10,000,000 12,075,563 12.4%
(1) The number of shares beneficially owned is determined under rules
promulgated by the SEC, and the information is not necessarily
indicative of beneficial ownership for any other purpose.
(2) Percent of total shares of our common stock outstanding as of November
13, 1998.
(3) It is unknown if, when or in what amounts the selling stockholder may
offer shares for sale pursuant to this prospectus. Because the selling
stockholder may offer all or some of the shares offered hereby, no
estimate can be given as to the amount of shares offered hereby that
he will continue to hold after this offering is considered complete.
However, for purposes of this table, we have assumed that, after
completion of the offering, he will have sold all of his shares
offered hereby.
PLAN OF DISTRIBUTION
The shares offered hereby for resale may be offered by the selling
stockholder or by donees, transferees or other successors in interest that
receive the shares as a gift or other non-sale related transfer. The shares
may be sold by the selling stockholder only in accordance with the terms of
our agreement with Mr. Barish. Generally, such agreement provides that:
<PAGE>
o Individual sales can be made in blocks no smaller than
1,000,000 shares.
o Sales can only be to "Permitted Transferees," defined
as any "accredited investor" of the type described in
Rule 501 (a)(1) (other than a broker-dealer registered
pursuant to Section 15 of the Exchange Act), (2), (3)
or (7), other than:
o persons engaged in a business that directly
competes with the Company and
o persons who would own more than 30% of the common
stock after any such sale.
o Although underwritten offerings, broker transactions
and exchange transactions are prohibited, sales may be
facilitated by a broker or dealer registered pursuant
to Section 15 of the Exchange Act.
o Except for a list of pre-approved purchasers, Permitted
Transferees are subject to the written approval of the
Company. If we disapprove of a total of two proposed
purchasers that otherwise meet the criteria for a
Permitted Transferee, Mr. Barish may terminate the
portion of the agreement covering the registration of
certain of his shares and the restrictions upon the
remainder of his shares. Thereafter, Mr. Barish would
be entitled to dispose of any of his shares in any
manner otherwise permitted by our internal policies and
applicable law.
Any or all of the sales or other transactions involving the shares
offered hereby must be made pursuant to this prospectus.
In accordance with our agreement with Mr. Barish, we and Mr. Barish
have agreed to indemnify and hold each other harmless against certain
liabilities under the Securities Act that could arise in connection with
the resale by the selling stockholder of the shares offered hereby.
LEGAL MATTERS
The validity of the shares offered hereby and certain other legal
matters will be passed upon for the Company by Gray, Harris & Robinson, P.A.,
Orlando, Florida.
EXPERTS
The financial statements incorporated in this prospectus by reference
to Planet Hollywood International, Inc.'s Annual Report on Form 10-K, as
amended, and Planet Hollywood International, Inc.'s Registration Statement
on Form S-4, as amended, dated May 1, 1998, have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses payable by the
Company and the selling stockholder in connection with the sale of the
Class A Common Stock being registered. Except for the legal fees and
expenses to be paid by the selling stockholder, all the fees and expenses
set forth below will be paid by the Company. All the amounts shown are
estimates except the registration fee.
SEC Registration Fee............................................... $ 9,479.80
Accounting fees and expenses....................................... 4,000.00
Legal fees and expenses to be paid by the Company.................. 20,000.00
Legal fees and expenses to be paid by the selling stockholder...... 5,000.00
----------
Total........................................................ $38,479.80
==========
Item 15. Indemnification of Directors and Officers
Pursuant to Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL"), the Bylaws of the Company provide that the Company
may indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Company) by reason of the fact
that he is or was a director, officer, employee or agent of the Company, or
is or was serving at the request of the Company as a director, partner,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees inclusive of any appeal), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
claim, action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal action or proceeding, has no
reasonable cause to believe his conduct unlawful.
Pursuant to Section 145 of the DGCL, the Bylaws further provide that
the Company may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed claim, action or
suit by or in the right of the Company to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or
agent of the Company, or is or was serving at the request of the Company as
a director, partner, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees inclusive of any appeal) actually and reasonably
incurred by him in connection with the defense or settlement of such claim,
action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company and
except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to the Company
unless and only to the extent that a court of competent jurisdiction (the
"Court") in which such claim, action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court shall deem proper.
Section 145 further provides that to the extent a director, officer,
employee or agent of a corporation has been successful in the defense of
any action, suit or proceeding referred to above or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; that indemnification provided for by Section 145
shall not be deemed exclusive of any other rights to which the indemnified
party may be entitled; and that the corporation is empowered to purchase
and maintain
<PAGE>
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation against any liability asserted against
him in any such capacity or arising out of his status as such, whether or
not the corporation would have the power to indemnify him against such
liability under Section 145.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") may be permitted to
directors, officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been advised
that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
If a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
Item 16. Exhibits
Exhibit Number Exhibit Description
3.1* Restated Certificate of Incorporation of the Registrant
3.2*** Third Amended and Restated Bylaws of the Registrant
5.1*** Opinion of Gray, Harris & Robinson, P.A.
10.1** Letter Agreement, including annexes thereto (which
include the form of the Registration Rights Agreement),
between the Company and Mr. Barish
23.1*** Consent of PricewaterhouseCoopers LLP
23.2*** Consent of Gray, Harris & Robinson, P.A. (included in
Exhibit 5.1)
24.1*** Powers of Attorney
* Incorporated by reference to the exhibit with the corresponding
exhibit number in the Registration Statement on Form S-1 previously
filed by the Registrant (Registration No. 333-01490)
** Incorporated by reference to Exhibit 17.1 in the Current Report on
Form 8-K dated November 10, 1998, previously filed by the Registrant
on November 12, 1998
*** Filed herewith
Item 17. Undertakings
The undersigned Registrant hereby undertakes to file, during any
period in which offers or sales are being made, a post-effective amendment
to this registration statement, to include any material information with
respect to the plan of distribution not previously disclosed in this
registration statement or any material change to such information in this
registration statement. For purposes of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. The undersigned Registrant further
undertakes to remove from registration, by means of a post-effective
amendment, any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Exchange Act
<PAGE>
that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefor, unenforceable. If a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Orlando, State of Florida on this
17th day of November, 1998.
Planet Hollywood International, Inc.
Registrant
By: /s/ William Baumhauer Date: November 17, 1998
-----------------------
William H. Baumhauer
President and Chief Operating Officer
By: /s/ Thomas Avallone Date: November 17, 1998
-----------------------
Thomas Avallone
Chief Financial Officer (and Principal Accounting Officer)
<PAGE>
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Capacity Date
*
- ----------------------
Robert Earl Chairman of the Board of November 10, 1998
Directors, Director and
Chief Executive Officer
*
- ----------------------
William Baumhauer Director, President and November 10, 1998
Chief Operating Officer
*
- ----------------------
Thomas Avallon Director, Executive Vice November 10, 1998
President and Chief
Financial Officer
*
- ----------------------
Keith Barish Director November 10, 1998
- ----------------------
Claudio Gonzalez Director November , 1998
*
- ----------------------
Mark McCormack Director November 10, 1998
*
- ----------------------
Michael Montague Director November 10, 1998
*
- ----------------------
Ong Beng Seng Director November 10, 1998
*
- ----------------------
Isadore Sharp Director November 10, 1998
*
- ----------------------
Michael Tarnopol Director November 10, 1998
---------------------
* The undersigned, by signing his name hereto, does hereby sign this
registration statement or amendment thereto on behalf of the above
indicated directors and officers of Planet Hollywood International,
Inc. pursuant to powers of attorney executed on behalf of each such
director and officer.
By: /s/ Thomas Avallone
---------------------------------
Thomas Avallone
Attorney-in-Fact
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Exhibit Description
3.1* Restated Certificate of Incorporation of the Registrant
3.2*** Third Amended and Restated Bylaws of the Registrant
5.1*** Opinion of Gray, Harris & Robinson, P.A.
10.1** Letter Agreement, including annexes thereto (which
include the form of the Registration Rights Agreement),
between the Company and Mr. Barish
23.1*** Consent of PricewaterhouseCoopers LLP
23.2*** Consent of Gray, Harris & Robinson, P.A. (included in
Exhibit 5.1)
24.1*** Powers of Attorney
* Incorporated by reference to the exhibit with the corresponding
exhibit number in the Registration Statement on Form S-1 previously
filed by the Registrant (Registration No. 333-01490)
** Incorporated by reference to Exhibit 17.1 in the Current Report on
Form 8-K dated November 10, 1998, previously filed by the Registrant
on November 12, 1998
*** Filed herewith
Exhibit 3.2
As approved and adopted
by the Board of Directors
as of July 27, 1998
THIRD AMENDED AND RESTATED BY-LAWS
OF
PLANET HOLLYWOOD INTERNATIONAL, INC.
ARTICLE I
Meetings of Shareholders
SECTION 1. Annual Meeting. The annual meeting of the shareholders of
this Corporation for the election of directors and for the transaction of
any proper business shall be held at the time and place designated by the
Board of Directors (the "Board") of the Corporation.
SECTION 2. Special Meetings. Special meetings of the shareholders
shall be held when called by the Chief Executive Officer or by a majority
of the Board of Directors. Special meetings may not be called by any other
person. Written notice of a special meeting pursuant to Section 4 herein
shall be given to all shareholders entitled to vote at such meeting not
less than 10 nor more than 60 days before the date of the meeting. Each
such special meeting shall be held at such date and time as requested by
the person or persons calling the meeting within the limits fixed by law.
Business transacted at any special meeting of shareholders shall be limited
to the purposes stated in the notice.
SECTION 3. Place Meetings of shareholders may be held in the State
of Delaware or outside the State of Delaware.
SECTION 4. Notice. Written notice stating the place, date and time
of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than
10 nor more than 60 days before the meeting, either personally or by first
class mail, by or at the direction of the Chief Executive Officer, the
Secretary, or the officer or persons calling the meeting to each
shareholder of record entitled to vote at such meeting. If mailed, such
notice shall be effective when deposited in the United States mail
addressed to the shareholder at his address as it appears on the
Corporation's current record of shareholders.
SECTION 5. Notice of Adjourned Meetings. When a meeting is adjourned
to another time or place, it shall not be necessary to give any notice of
the adjourned meeting if the time and place to which the meeting is
adjourned are announced at the meeting at which the adjournment is taken,
and at the adjourned meeting any business may be transacted that might have
been transacted on the original date of the meeting. If, however, the
adjournment is for more than 30 days, or if, after the adjournment, the
Board of 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
<PAGE>
Certificate of Incorporation in connection with rights to elect directors
under specified circumstances which may be granted to the holders of any
series of Preferred Stock, nominations for the election of directors and
the proposal of business to be considered by the shareholders may be made
by the Board or any shareholder of record entitled to vote at the meeting
and who complies with the notice procedures set forth in this by-law.
For nominations or other business to be properly brought before an
annual meeting by a shareholder, the shareholder must have given timely
notice thereof in writing to the Secretary of the Corporation and such
other business must otherwise be a proper matter for shareholder action.
Except as otherwise provided by applicable law, to be timely, a
shareholder's notice must be delivered to the Secretary of the Corporation
at the Corporation's principal executive offices not later than the close
of business on the 60th day, nor earlier than the close of business on the
90th day, prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is more than 30 days before or 60 days after such anniversary date,
notice by the shareholder must be so delivered not earlier than the close
of business on the later of the 60th day prior to such meeting or the 10th
day following the day on which public announcement of the date of such
meeting is made by the Corporation. In no event shall public announcement
of an adjournment of an annual meeting commence a new time period for
giving of a shareholder's notice as described above.
Such shareholder's notice shall set forth (a) as to each person whom
the shareholder proposes to nominate for election to the Board of
Directors, all information relating to such person required to be disclosed
in solicitation of proxies for election of directors pursuant to Regulation
14A under the Securities Exchange Act of 1934 (including such person's
written consent to being named in the proxy statements as a nominee and to
serving as a director if elected); (b) as to any other business that the
shareholder proposes to bring before the meeting, a brief description of
the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest in such
business of such shareholder and the beneficial owner, if any, on whose
behalf the nomination or proposal is made; and (c) as to the shareholder
giving notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (i) the name and address of such
shareholder, as they appear on the Corporation's books, and of such
beneficial owner and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such shareholder and
beneficial owner. Notice of nominations which are proposed by the Board
shall be given by the Chairman, the 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
<PAGE>
shareholders, not less than 10 days prior to the date on which the
particular action requiring such determination of shareholders is to be
taken.
If the stock transfer books are not closed and no record date is
fixed for the determination of shareholders entitled to notice or to vote
at an annual or special meeting of shareholders, or shareholders entitled
to receive payment of a distribution, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board of
Directors declaring such distribution is adopted, as the case may be, shall
be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting
of shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof, unless the Board of
Directors fixes a new record date for the adjourned meeting. A new record
date must be fixed if the meeting is adjourned to a date more than 120 days
after the date fixed for the original meeting.
SECTION 8. Voting Record. The officers or agent having charge of the
stock transfer books for shares of the Corporation shall make, at least 10
days before each meeting of shareholders, a complete alphabetical list of
the shareholders entitled to vote at such meeting or any adjournment
thereof, arranged by voting group with the address of and the number and
class and series, if any, of shares held by each. The list, for a period of
10 days prior to such meeting, shall be available for inspection at the
principal office of the Corporation, or at the office of the transfer agent
or registrar of the Corporation or at a place identified in the meeting
notice in the city where the meeting will be held. Upon written demand to
the Corporation, any shareholder or his agent or attorney shall be entitled
to inspect the list at any time during usual business hours. The list shall
also be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any shareholder or his agent or
attorney at any time during the meeting.
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.
<PAGE>
SECTION 10. Voting of Shares. Each outstanding share of Class A
Common Stock shall be entitled to one vote on each matter submitted to a
vote at a meeting of shareholders. Except as required by applicable law,
shares of Class B Common Stock shall not be entitled to any votes for the
election of directors or on any matter presented to the shareholders.
Shares of stock of this Corporation owned directly or indirectly by
another corporation the majority of the voting stock of which is owned,
directly or indirectly, by this Corporation are not entitled to vote, and
shall not be counted in determining the total number of outstanding shares
at any given time.
A shareholder or the shareholder's attorney in fact may vote either
in person or by proxy executed in writing by the shareholder or his duly
authorized attorney-in-fact.
At each election for directors every shareholder entitled to vote at
such election shall have the right to vote, in person or by proxy, the
number of votes represented by the shares owned by him for as many persons
as there are directors to be elected at that time and for whose election he
has a right to vote.
Shares standing in the name of another corporation, domestic or
foreign, may be voted by the officer, agent, or proxy designated by the
by-laws of the corporate shareholder; or, in the absence of any applicable
by-law, by such person as the board of directors of the corporate
shareholder may designate. Proof of such designation may be made by
presentation of a certified copy of the by-laws or other instrument of the
corporate shareholder. In the absence of any such designation, or in case
of conflicting designation by the corporate shareholder, the Chairman of
the Board, 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.
<PAGE>
SECTION 11. Written Consent of Shareholders. Any action required or
permitted to be taken by the shareholders of the Corporation must be
effected at a duly called annual or special meeting of the shareholders,
unless such action is approved by a majority of the Board of Directors. In
the event of such approval, such action may be taken without a meeting,
without prior notice and without a vote if a consent in writing, setting
forth the action so taken, shall be signed by the holders of outstanding
shares having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting of shareholders at
which all shares entitled to vote thereon were present and voted, provided
that all requirements of law and the Restated Certificate of Incorporation
have been satisfied. To be effective, the executed written consent of the
shareholders must be delivered to the Corporation within 60 days of the
date the earliest written consent is received by the Corporation. If any
class of shares is entitled to vote thereon as a class, such written
consent shall be required of the holders of a majority of the shares of
each class of shares entitled to vote thereon.
After obtaining such authorization by written consent, notice shall
promptly be given to those shareholders who have not consented in writing
or who are not entitled to vote on the action. The notice shall fairly
summarize the material features of the authorized action and, if the action
be a merger, consolidation or sale or exchange of assets for which
dissenters rights are provided by law, the notice shall contain a clear
statement of the right of shareholders dissenting therefrom to be paid the
fair value of their shares upon compliance with further provisions of the
law regarding the rights of dissenting shareholders.
SECTION 12. Waiver of Notice of Meetings of Shareholders. Notice of
a meeting of the shareholders need not be given to any shareholder who
signs a Waiver of Notice either before or after the meeting. Attendance of
a shareholder at a meeting shall constitute a waiver of notice of such
meeting and waiver of any and all objections to the place of the meeting,
the time of the meeting, the manner in which it has been called or
convened, or the matters considered at a meeting except when a shareholder
states, at the beginning of the meeting, any objection to the transaction
of business because the meeting is not lawfully called or convened, or
except when a shareholder objects to considering a particular matter that
is not within the purposes described in the meeting notice.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the shareholders need be specified in any
written Waiver of Notice of such meeting.
ARTICLE II
Directors
SECTION 1. Function. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the Corporation
shall be managed under the direction of, the Board of Directors.
SECTION 2. Qualification. Directors must be natural persons who are
18 years of age or older, but need not be residents of this state or
shareholders of this Corporation.
SECTION 3. Compensation. The Board of Directors shall have authority
to fix the compensation of directors.
<PAGE>
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.
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
<PAGE>
expire at the 1998 annual meeting of shareholders and the term of office of
the third class to expire at the 1999 annual meeting of shareholders, with
each director to hold office until his or her successor has been duly
elected and qualified. At each annual meeting of shareholders, commencing
with the 1997 annual meeting, (i) directors elected to succeed those
directors whose terms shall expire shall be elected for a term of office to
expire at the third succeeding annual meeting of shareholders after their
election, each director to hold office until his or her successor shall
have been duly elected and qualified, and (ii) if authorized by a
resolution of the Board of Directors, directors may be elected to fill any
vacancy on the Board of Directors, regardless of how such vacancy shall
have been created.
SECTION 7. Election of Directors. Except as may otherwise be
provided pursuant to the Restated Certificate of Incorporation in
connection with the rights to elect directors under specified circumstances
which may be granted to the holders of any series of Preferred Stock, and
except as otherwise provided pursuant to Section 8 of this Article II,
directors shall be elected by shareholders of the Corporation. Except as
otherwise provided by applicable law, at each election the persons
receiving the greatest number of votes, up to the number of directors then
to be elected, shall be the persons then elected. Each director shall serve
until his or her successor is elected and qualified or until his or her
death, resignation or removal. The election of directors is subject to any
provisions relating thereto contained in the Restated Certificate of
Incorporation.
SECTION 8. Vacancies. Except as may otherwise be provided pursuant
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.
<PAGE>
The act of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
SECTION 12. Director Conflicts of Interest. No contract or other
transaction between this Corporation and one or more of its directors or
any other corporation, firm, association or entity in which one or more of
the directors are directors or officers or are financially interested,
shall be either void or voidable because of such relationship or interest
or because such director or directors are present at the meeting of the
Board of Directors or a committee thereof which authorizes, approves or
ratifies such contract or transaction or because his or their votes are
counted for such purpose, if:
(a) the fact of such relationship or interest is disclosed or known
to the Board of Directors or committee which authorizes, approves or
ratifies the contract or transaction by a vote or consent sufficient for
the purpose without counting the votes or consents of such interested
directors; or
(b) the fact of such relationship or interest is disclosed or known
to the shareholders entitled to vote and they authorize, approve or ratify
such contract or transaction by vote or written consent; or
(c) the contract or transaction is fair and reasonable as to the
Corporation at the time it is authorized by the Board, a committee or the
shareholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors of a committee
thereof which authorizes, approves or ratifies such contract or
transaction.
SECTION 13. Executive and Other Committees. The Board of Directors,
by resolution adopted by a majority of the full Board of Directors, may
designate from among its members an executive committee and one or more
other committees each of which, to the extent provided in such resolution,
shall have and may exercise all the authority of the Board of Directors,
except that no committee shall have the authority to:
(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
<PAGE>
any contract therefor, and, in the case of a series, the designation
thereof, may, pursuant to a general formula or method specified by the
Board of Directors, by resolution or by adoption of a stock option or other
plan, authorize a committee to fix the terms of any contract for the sale
of the shares and to fix the terms upon which such shares may be issued or
sold, including the price, the rate or manner of payment of dividends,
provisions for redemption, sinking fund, conversion, voting or preferential
rights, and provisions for other features of a class of shares, or a series
of a class of shares, with full power in such committee to adopt any final
resolution setting forth all the terms thereof and to authorize the
statement of the terms of a series for filing with the office of the
Secretary of State.
The Board of Directors, by resolution adopted in accordance with
this section, may designate one or more directors as alternate members of
any such committee, who may act in the place and stead of any absent member
or members at any meeting of such committee.
SECTION 14. Changes in Committees; Resignations, Removals and
Vacancies. The Board of Directors shall have power at any time to change or
remove the members of, to fill vacancies in, and to discharge any committee
created pursuant to these By-laws, either with or without cause. Any member
of any such committee may resign at any time by giving written notice to
the Board or the Chairman of the Board or the Secretary. Such resignation
shall take effect upon receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, acceptance of
such resignation shall not be necessary to make it effective. Any vacancy
in any committee, whether arising from death, resignation, an increase in
the number of committee members or any other cause, shall be filled by the
Board of Directors in the manner prescribed in these By-laws for the
original appointment of the members of such committee.
SECTION 15. Place of Meetings. Regular and special meetings by the
Board of Directors may be held within or without the State of Delaware.
SECTION 16. Time, Notice and Call of Meetings. Regular meetings of
the Board of Directors shall be held at times and places specified by the
Board of Directors without notice of the date, time, place or purpose of
the meeting. Written notice of the date, time and place of special meetings
of the Board of Directors shall be given to each director at least 2 days
before the meeting. The notice need not describe the purpose of the special
meeting. In addition to any other regular meetings, a regular meeting of
the Board of Directors shall be held, without other notice than this
by-law, immediately after and at the same place as the annual meeting of
shareholders.
Notice of a meeting of the Board of Directors need not be given to
any director who signs a waiver of notice either before or after the
meeting. Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting and waiver of any and all objections to the place of
the meeting, the time of the meeting, or the manner in which it has been
called or convened, except when a director states, at the beginning of the
meeting, any objection to the transaction of business because the meeting
is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in
the notice or waiver of notice of such meeting.
<PAGE>
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
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.
<PAGE>
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.
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
<PAGE>
relates to whether the shares are validly issued, fully paid and
nonassessable. When it cannot be determined that outstanding shares are
fully paid and nonassessable, there shall be a conclusive presumption that
such shares are fully paid and nonassessable if the Board of Directors
makes a good faith determination that there is no substantial evidence that
the full consideration for such shares has not been paid.
When the Corporation receives the consideration for which the Board
of Directors authorized the issuance of shares, the shares issued therefor
are fully paid and nonassessable. Consideration in the form of a promise to
pay money or a promise to perform services is received by the Corporation
at the time of the making of the promise, unless the agreement specifically
provides otherwise.
SECTION 2. Form. Certificates representing shares in this
Corporation shall be signed by the 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 books of the
Corporation shall be deemed by the Corporation to be the owner thereof for
all purposes.
<PAGE>
SECTION 4. Lost, Stolen, or Destroyed Certificates. The Corporation
shall issue a new stock certificate in the place of any certificate
previously issued if the holder of record of the certificate (a) makes
proof in affidavit form that it has been lost, destroyed or wrongfully
taken; (b) requests the issue of a new certificate before the Corporation
has notice that the certificate has been acquired by a purchaser for value
in good faith and without notice of any adverse claim; (c) gives bond in
such form as the Corporation may direct to indemnify the Corporation, the
transfer agent and registrar against any claim that may be made on account
of the alleged loss, destruction or theft of a certificate; and (d)
satisfies any other reasonable requirements imposed by the Corporation.
ARTICLE V
Contracts, Loans, Checks and Deposits
SECTION 1. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute
and deliver any instrument in the name of and on behalf of the Corporation,
and such authority may be general or confined to specific instances.
SECTION 2. Loans. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name
unless authorized by a resolution of the Board of Directors. Such authority
may be general or confined to specific instances.
SECTION 3. Checks, Drafts, etc. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued
in the name of the Corporation shall be signed by such officer or officers,
agent or agents, of the Corporation and in such manner as shall from time
to time be determined by resolution of the Board of Directors.
SECTION 4. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositories as the
Board of Directors may select.
ARTICLE VI
Books and Records
SECTION 1. Books and Records. The Corporation shall keep as
permanent records, in accordance with applicable law, minutes of all
meetings of its shareholders and Board of Directors, a record of all
actions taken by the shareholders or Board of Directors without a meeting,
a record of all actions taken by a committee of the Board of Directors in
place of the Board of Directors on behalf of the Corporation, and such
books or records and accounts as may be necessary for the proper conduct of
the business of the Corporation.
SECTION 2. Inspection of Books and Records. The Board of Directors
and, unless otherwise specified by the Board, the Chairman of the Board,
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
<PAGE>
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.
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.
<PAGE>
If the Board of Directors does not fix the record date for determining
shareholders entitled to a share dividend, it is the date the Board of
Directors authorizes the share dividend.
SECTION 3. Share Options. Unless the Restated Certificate of
Incorporation provides otherwise, the Corporation may issue rights, options
or warrants for the purchase of its shares. The Board of Directors shall
determine the terms upon which the rights, options or warrants are issued,
their form and content, and the consideration for which the shares are to
be issued.
The terms and conditions of stock rights and options which are
created and issued by the Corporation, or its successor, and which entitle
the holders thereof to purchase from the Corporation shares of any class or
classes, whether authorized but unissued shares, treasury shares or shares
to be purchased or acquired by the Corporation, may include restrictions or
conditions that preclude or limit the exercise, transfer, receipt or
holding of such rights or options by any person or persons, including any
person or persons owning or offering to acquire a specified number or
percentage of the outstanding common shares or other securities of the
Corporation, or any transferee or transferees of any such person or
persons, or that invalidate or void such rights or options held by any such
person or persons or any such transferee or transferees.
ARTICLE VIII
Corporate Seal
The Board of Directors shall provide a corporate seal which shall
have inscribed thereon the name of the Corporation and such other words and
figures and in such design as may be prescribed by the Board of Directors,
and may be facsimile, engraved, printed or an impression, or other type
seal.
ARTICLE IX
Fiscal Year
The fiscal year of the Corporation shall, by resolution, be
determined by the Board of Directors.
ARTICLE X
Indemnification of Directors,
Officers, Employees and Agents
SECTION 1. Action Against Party Because of Corporate Position. The
Corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed claim, action,
suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the
Corporation as a director, partner, officer, employee or agent of another
Corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees inclusive of any appeal), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such claim, action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to any
criminal action or proceeding, had
A
<PAGE>
no reasonable cause to believe his conduct unlawful. The termination of any
claim, action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
SECTION 2. Action by or in the Right of Corporation. The Corporation
may indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed claim, action or suit by or
in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation
as a director, partner, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees inclusive of any appeal) actually and reasonably
incurred by him in connection with the defense or settlement of such claim,
action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation
and except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that a court of competent
jurisdiction (the "Court") in which such claim, action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
Court shall deem proper.
SECTION 3. Reimbursement If Successful. To the extent that a
director, officer, employee or agent of the Corporation has been successful
on the merits or otherwise in defense of any claim, action, suit or
proceeding referred to in Sections 1 or 2 of this Article X, or in defense
of any claims, issue or matter therein, he shall be indemnified against
expenses (including attorneys fees inclusive of any appeal) actually and
reasonably incurred by him in connection therewith, notwithstanding that he
has not been successful (on the merits or otherwise) on any other claim,
issue or matter in any such claim, action, suit or proceeding.
SECTION 4. Authorization. Any indemnification under Sections 1 and 2
of this Article X (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of conduct
set forth in Sections 1 and 2. Such determination shall be made (a) by the
Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (b) if such a
quorum is not obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(c) by the shareholders.
SECTION 5. Advanced Reimbursement. Expenses incurred in defending a
civil or criminal action, suit or proceeding may be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding as
authorized by the Board of Directors in the specific case upon receipt of
an undertaking by or on behalf of the director, officer, employee or agent
to repay such amount unless it shall
<PAGE>
ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this Article.
SECTION 6. Indemnification Not Exclusive. The indemnification
provided by this Article shall be deemed exclusive of any other rights to
which those indemnified may be entitled under any statute, rule of law,
provision of the Restated Certificate of Incorporation, by-law, agreement,
vote of shareholders or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another capacity, while
holding such office, and shall continue as to a person who has ceased to be
a director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person. Where such other
provision provides broader rights of indemnification than these by-laws,
said other provision shall control.
SECTION 7. Insurance. The Corporation shall have power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, partner, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not
the Corporation would have the power to indemnify him against such
liability under the provisions of this Article.
ARTICLE XI
Amendment
Except as otherwise provided herein, these By-laws may be altered,
amended or repealed or new by-laws may be adopted by the shareholders or by
the Board of Directors at any regular meeting of the shareholders or of the
Board of Directors or at any special meeting of the shareholders or of the
Board of Directors if notice of such alteration, amendment, repeal or
adoption of new by-laws be contained in the notice of such special meeting;
provided, however, that in the case of amendments by shareholders,
notwithstanding any other provisions of these By-laws or any other
provision of law which might otherwise permit a lesser vote or no vote, but
in addition to any affirmative vote of the holders of any particular class
or series of the capital stock required by law, the Restated Certificate of
Incorporation or these By-laws, the affirmative vote of the holders of at
least 66 2/3% of all then outstanding shares of voting stock of the
Corporation, voting together as a single class, shall be required to alter,
amend or repeal any provision of these Bylaws.
ARTICLE XII
Emergency By-laws
SECTION 1. Emergency By-laws. The Board of Directors may adopt
by-laws to be effective only in an emergency. An emergency exists for the
purposes of this section if a quorum of the Corporation's directors cannot
readily be assembled because of some catastrophic event. The emergency
by-laws, which are subject to amendment or repeal by the shareholders, may
make all provisions necessary for managing the Corporation during an
emergency, including:
(a) procedures for calling a meeting of the Board of Directors;
(b) quorum requirements for the meeting; and
<PAGE>
(c) designation of additional or substitute directors.
SECTION 2. Line of Succession. The Board of Directors, either before
or during such emergency, may provide, and from time to time modify, lines
of succession in the event that during such emergency any or all officers
or agents of the Corporation are for any reason rendered incapable of
discharging their duties.
SECTION 3. Governing By-laws. All provisions of these By-laws
consistent with the emergency by-laws remain effective during the
emergency. The emergency by-laws are not effective after the emergency
ends.
SECTION 4. Effect of 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.
973\planet\docs\bylaws.phi
[LETTERHEAD]
November 18, 1998
Planet Hollywood International, Inc.
8669 Commodity Circle
Orlando, Florida 32819
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Planet Hollywood International, Inc., a
Delaware corporation (the "Company"), and have examined the Registration
Statement on Form S-3 to be filed by the Company with the Securities and
Exchange Commission on or about November 18, 1998 (the "Registration
Statement") in connection with the registration under the Securities Act of
1933, as amended, of 10,000,000 shares of the Company's Class A Common
Stock, $0.01 par value per share (the "Shares"). As your counsel in
connection with this transaction, we have examined the proceedings proposed
to be taken in connection with said registration and sale of the Shares.
It is our opinion that, upon completion of the proceedings being taken
by us or other counsel for the Company, or contemplated by such parties, as
your counsel, to be taken prior to the sales, if any, of the Shares by the
selling stockholder, and upon completion of the proceedings being taken in
order to permit such transactions to be carried out in accordance with the
securities laws of the various states, where required, the Shares, when
sold in the manner referred to in the Registration Statement, will be
legally issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement, and further consent to the use of our name wherever
appearing in the Registration Statement, including the prospectus
constituting a part thereof, and any amendment thereto and any registration
statement for the same offering covered by the Registration Statement that
is to be effective upon filing pursuant to Rule 462(b) and all
post-effective amendments thereto.
Very truly yours,
GRAY, HARRIS & ROBINSON, P.A.
By: /s/ Byrd F. Marshall, Jr.
-------------------------
Byrd F. Marshall, Jr.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated March 3, 1998 appearing on page 33 of Planet Hollywood International,
Inc.'s Annual Report on Form 10-K, as amended, for the year ended December
28, 1997 and on page F-2 of Planet Hollywood International, Inc.'s
Registration Statement on Form S-4 (No. 333-51655), as amended. We also
consent to the reference to us under the heading "Experts" in such
Prospectus.
PRICEWATERHOUSECOOPERS LLP
Orlando, Florida
November 17, 1998
POWER OF ATTORNEY
PLANET HOLLYWOOD INTERNATIONAL, INC.
The undersigned Directors of Planet Hollywood International, Inc. (the
"Company") hereby severally constitute and appoint Thomas Avallone and
Scott E. Johnson, and each of them singularly, as attorney to sign for me
and in my name, as a director of the Company, any and all documents,
registrations and other papers necessary in connection with the filing by
the Company with the Securities and Exchange Commission (the "Commission"),
under and in compliance with the provisions of the Securities Act of 1933
and any rules and regulations of the Commission, a Registration Statement
(the "Registration Statement") on Form S-3 with respect to the registration
for resale of 10,000,000 shares of the Company's Class A Common Stock
beneficially owned by Keith Barish and to file with the Commission any and
all amendments to any such Registration Statement with all exhibits
thereto, and any applications or other documents to be filed with the
Commission or any national securities exchange pertaining to such
securities or to such registration, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be
done, hereby ratifying and approving the acts of said attorney.
Dated November 10, 1998
/s/ Robert Earl
- -------------------------------
Robert Earl
Chairman of the Board of
Directors, Chief Executive
Officer and Director
/s/ Thomas Avallone
- -------------------------------
Thomas Avallone
Executive Vice President,
Chief Financial Officer
and Director
POWER OF ATTORNEY
PLANET HOLLYWOOD INTERNATIONAL, INC.
The undersigned Directors of Planet Hollywood International, Inc. (the
"Company") hereby severally constitute and appoint Thomas Avallone and
Scott E. Johnson, and each of them singularly, as attorney to sign for me
and in my name, as a director of the Company, any and all documents,
registrations and other papers necessary in connection with the filing by
the Company with the Securities and Exchange Commission (the "Commission"),
under and in compliance with the provisions of the Securities Act of 1933
and any rules and regulations of the Commission, a Registration Statement
(the "Registration Statement") on Form S-3 with respect to the registration
for resale of 10,000,000 shares of the Company's Class A Common Stock
beneficially owned by Keith Barish and to file with the Commission any and
all amendments to any such Registration Statement with all exhibits
thereto, and any applications or other documents to be filed with the
Commission or any national securities exchange pertaining to such
securities or to such registration, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be
done, hereby ratifying and approving the acts of said attorney.
Dated November 10, 1998
/s/ Mark McCormack
- -------------------------------
Mark McCormack
Director
POWER OF ATTORNEY
PLANET HOLLYWOOD INTERNATIONAL, INC.
The undersigned Directors of Planet Hollywood International, Inc. (the
"Company") hereby severally constitute and appoint Thomas Avallone and
Scott E. Johnson, and each of them singularly, as attorney to sign for me
and in my name, as a director of the Company, any and all documents,
registrations and other papers necessary in connection with the filing by
the Company with the Securities and Exchange Commission (the "Commission"),
under and in compliance with the provisions of the Securities Act of 1933
and any rules and regulations of the Commission, a Registration Statement
(the "Registration Statement") on Form S-3 with respect to the registration
for resale of 10,000,000 shares of the Company's Class A Common Stock
beneficially owned by Keith Barish and to file with the Commission any and
all amendments to any such Registration Statement with all exhibits
thereto, and any applications or other documents to be filed with the
Commission or any national securities exchange pertaining to such
securities or to such registration, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be
done, hereby ratifying and approving the acts of said attorney.
Dated November 10, 1998
/s/ Lord Michael Montague
- -------------------------------
Lord Michael Montague
Director
POWER OF ATTORNEY
PLANET HOLLYWOOD INTERNATIONAL, INC.
The undersigned Directors of Planet Hollywood International, Inc. (the
"Company") hereby severally constitute and appoint Thomas Avallone and
Scott E. Johnson, and each of them singularly, as attorney to sign for me
and in my name, as a director of the Company, any and all documents,
registrations and other papers necessary in connection with the filing by
the Company with the Securities and Exchange Commission (the "Commission"),
under and in compliance with the provisions of the Securities Act of 1933
and any rules and regulations of the Commission, a Registration Statement
(the "Registration Statement") on Form S-3 with respect to the registration
for resale of 10,000,000 shares of the Company's Class A Common Stock
beneficially owned by Keith Barish and to file with the Commission any and
all amendments to any such Registration Statement with all exhibits
thereto, and any applications or other documents to be filed with the
Commission or any national securities exchange pertaining to such
securities or to such registration, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be
done, hereby ratifying and approving the acts of said attorney.
Dated November 10, 1998
/s/ William H. Baumhauer
- -------------------------------
William H. Baumhauer
President, Chief Operating
Officer and Director
POWER OF ATTORNEY
PLANET HOLLYWOOD INTERNATIONAL, INC.
The undersigned Directors of Planet Hollywood International, Inc. (the
"Company") hereby severally constitute and appoint Thomas Avallone and
Scott E. Johnson, and each of them singularly, as attorney to sign for me
and in my name, as a director of the Company, any and all documents,
registrations and other papers necessary in connection with the filing by
the Company with the Securities and Exchange Commission (the "Commission"),
under and in compliance with the provisions of the Securities Act of 1933
and any rules and regulations of the Commission, a Registration Statement
(the "Registration Statement") on Form S-3 with respect to the registration
for resale of 10,000,000 shares of the Company's Class A Common Stock
beneficially owned by Keith Barish and to file with the Commission any and
all amendments to any such Registration Statement with all exhibits
thereto, and any applications or other documents to be filed with the
Commission or any national securities exchange pertaining to such
securities or to such registration, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be
done, hereby ratifying and approving the acts of said attorney.
Dated November 10, 1998
/s/ Ong Beng Seng
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Ong Beng Seng
Director
POWER OF ATTORNEY
PLANET HOLLYWOOD INTERNATIONAL, INC.
The undersigned Directors of Planet Hollywood International, Inc. (the
"Company") hereby severally constitute and appoint Thomas Avallone and
Scott E. Johnson, and each of them singularly, as attorney to sign for me
and in my name, as a director of the Company, any and all documents,
registrations and other papers necessary in connection with the filing by
the Company with the Securities and Exchange Commission (the "Commission"),
under and in compliance with the provisions of the Securities Act of 1933
and any rules and regulations of the Commission, a Registration Statement
(the "Registration Statement") on Form S-3 with respect to the registration
for resale of 10,000,000 shares of the Company's Class A Common Stock
beneficially owned by Keith Barish and to file with the Commission any and
all amendments to any such Registration Statement with all exhibits
thereto, and any applications or other documents to be filed with the
Commission or any national securities exchange pertaining to such
securities or to such registration, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be
done, hereby ratifying and approving the acts of said attorney.
Dated November 10, 1998
/s/ Keith Barish
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Keith Barish
Director
POWER OF ATTORNEY
PLANET HOLLYWOOD INTERNATIONAL, INC.
The undersigned Directors of Planet Hollywood International, Inc. (the
"Company") hereby severally constitute and appoint Thomas Avallone and
Scott E. Johnson, and each of them singularly, as attorney to sign for me
and in my name, as a director of the Company, any and all documents,
registrations and other papers necessary in connection with the filing by
the Company with the Securities and Exchange Commission (the "Commission"),
under and in compliance with the provisions of the Securities Act of 1933
and any rules and regulations of the Commission, a Registration Statement
(the "Registration Statement") on Form S-3 with respect to the registration
for resale of 10,000,000 shares of the Company's Class A Common Stock
beneficially owned by Keith Barish and to file with the Commission any and
all amendments to any such Registration Statement with all exhibits
thereto, and any applications or other documents to be filed with the
Commission or any national securities exchange pertaining to such
securities or to such registration, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be
done, hereby ratifying and approving the acts of said attorney.
Dated November 10, 1998
/s/ Isadore Sharp
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Isadore Sharp
Director
POWER OF ATTORNEY
PLANET HOLLYWOOD INTERNATIONAL, INC.
The undersigned Directors of Planet Hollywood International, Inc. (the
"Company") hereby severally constitute and appoint Thomas Avallone and
Scott E. Johnson, and each of them singularly, as attorney to sign for me
and in my name, as a director of the Company, any and all documents,
registrations and other papers necessary in connection with the filing by
the Company with the Securities and Exchange Commission (the "Commission"),
under and in compliance with the provisions of the Securities Act of 1933
and any rules and regulations of the Commission, a Registration Statement
(the "Registration Statement") on Form S-3 with respect to the registration
for resale of 10,000,000 shares of the Company's Class A Common Stock
beneficially owned by Keith Barish and to file with the Commission any and
all amendments to any such Registration Statement with all exhibits
thereto, and any applications or other documents to be filed with the
Commission or any national securities exchange pertaining to such
securities or to such registration, with full power and authority to do and
perform any and all acts and things whatsoever required and necessary to be
done, hereby ratifying and approving the acts of said attorney.
Dated November 10, 1998
/s/ Michael Tarnopol
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Michael Tarnopol
Director
