UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3/A
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. [ ]
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>
Prospectus
[LOGO]
Planet Hollywood International, Inc.
10,000,000 Shares
Class A Common Stock
This prospectus relates solely to the offer and sale 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 sale by the
selling stockholder of the shares offered under this prospectus.
The selling stockholder may offer these shares for sale 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
January 11, 1999, the closing price for our common stock as reported by
the NYSE was $2.50 per share.
Consider carefully the risk factors beginning on page 4 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 date of this prospectus is January 13, 1999.
<PAGE>
TABLE OF CONTENTS
The Company.....................................................1
Risk Factors....................................................4
Where You Can Find More Information............................11
Incorporation of Certain Documents
By Reference...................................................11
Note Regarding Forward-Looking
Statements.....................................................12
Use of Proceeds................................................12
Selling Stockholder............................................12
Plan of Distribution...........................................13
Legal Matters..................................................14
Experts........................................................14
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>
THE COMPANY
As used in this prospectus, the terms "we", "us" and "our" refer 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 for all periods before January 1,
1995. References to a fiscal year refer to the year ending on the Sunday
closest to December 31 of each year.
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. To date, we have
promoted our brands primarily through the operation of theme restaurants,
most notably Planet Hollywood and the Official All Star Cafe. 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 and net income in fiscal 1997 of approximately $475.1
million and $8.3 million, respectively.
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.
We recently unveiled our third restaurant 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., to help promote and develop the Sound Republic
brand. Our first unit in Leicester Square in London held its grand opening
to the public on October 17, 1998. This restaurant features live
performances by a broad range of musical artists, both in a connected club
facility and in an integrated stage area within the restaurant itself.
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. Units prominently display
celebrity memorabilia and offer merchandise. 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
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:
<PAGE>
* Planet Movies by AMC. We have formed a 50/50 joint venture with
AMC Entertainment, Inc., 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.
* Official All Star Hotel. In the Fall of 1997, we acquired a 20%
equity interest in a joint venture with Vornado Realty Trust. The
joint venture has acquired the Hotel Pennsylvania, a 20-story,
1,700-room hotel located directly opposite the entrance to New York
City's famed Madison Square Garden. While continuing its normal
operations, the hotel 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. It is expected that the hotel will also contain
approximately 400,000 square feet of rentable retail space. 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 Official All Star name and logo.
* 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 and Fall
of 1998, we opened our first three Cool Planet units in Santa
Monica, Irvine and Anaheim, California. In June 1998, we announced
that we 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 up to ten
Cool Planet locations in select airports, travel plazas and mall
locations.
Other Recent Developments
On March 25, 1998, we issued $250.0 million of our 12% Senior
Subordinated notes due 2005. 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
issue additional debt and preferred stock, pay dividends and sell assets.
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. Robert Earl will continue as our
Chief Executive Officer.
On September 17, 1998, at a regular meeting of the our Board of
Directors, the Board of Directors increased the number of directors 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
our Board of Directors. At a special Board of Directors meeting held on
November 10, 1998, our Board of Directors elected Robert Earl to serve as
the new Chairman. Mr. Barish remains as a member of our Board of Directors.
In November and December of 1998, we reduced our overhead staff by
approximately 70 employees in our corporate offices worldwide in an effort
to cut down our general and administrative expenses.
Effective December 8, 1998, we amended our existing $65.0 million
multi-currency revolving credit facility and $35.0 million LIBOR-based
leveraged lease facility with SunTrust Bank, Central Florida, N.A. and
other lenders. The revolving credit portion of the old credit facility has
been terminated and the credit facility now provides for a $35.0 million
LIBOR-based leveraged lease facility and up tp $2.0 million coverage under
an interest rate swap arrangement which provides hedging against interest
rate movements under the leveraged lease facility. Interest rates are
variable, with either prime or LIBOR indexes. The credit facility matures
on June 30, 1999. Principal payments under the leveraged lease facility
were or are required in the amounts of (a) $10.0 million by December 8,
1998, (b) $12.5 million by March 31, 1999 and (c) the balance by June 30,
1999. We are also required to commence marketing both our headquarters
property and the New York property underlying the leveraged lease and if
such properties are sold, the proceeds will be applied as additional
principal payments. Our obligations under the credit facility are
guaranteed by each of our material subsidiaries and will be secured by a
pledge of our stock in our subsidiaries and a mortgage of our executive
office building. A copy of the credit facility is filed as an exhibit to
the registration statement of which this prospectus is a part. See "Risk
Factors - We are Subject to Restrictive Debt Covenants and There Is A Risk
of Noncompliance" beginning on page 5 for a description of our prior
noncompliance with certain financial covenants under the old credit
facility.
We and a subsidiary of Aladdin Gaming Holdings, LLC previously
announced an intention to form a joint venture to construct, own and
operate a music-themed hotel, casino and entertainment center based on our
Sound Republic brand in Las Vegas, Nevada. In September 1998, Aladdin
announced that it had not yet concluded its negotiations with us concerning
such project and that it intended to pursue other prospective joint venture
partners, however Aladdin did state that it would renew discussions with us
if and when it was appropriate. In December 1998, Aladdin informed us that
it does not expect to renew such negotiations or pursue the project with
us.
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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 making an
investment in our common stock. The following are the most significant risk
factors that we believe are material to investors who purchase or own our
common stock.
Our Large Amount of Debt May Limit Our Ability To Operate Our
Business. 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:
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 will depend upon our future operating performance, which
may be affected by prevailing economic conditions and financial, business
and other factors, many of which are beyond our control. We currently
anticipate that our operating cash flow will be sufficient to meet our
operating expenses and to service our debt obligations as they become due.
If we are unable to service our indebtedness, we will be forced to adopt
one or more other strategies that may include actions such as reducing or
delaying capital expenditures, selling assets, restructuring or refinancing
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.
We Have Experienced Increasing Declines In "Same Unit" Revenues And
May Continue To Experience Such Declines. We operate in an increasingly
competitive environment with numerous competing themed restaurants entering
many of our existing markets and, as we continue to expand into smaller
markets, revenues of company-owned units have declined on a "same unit"
basis:
Approximate Decline in
Comparable Period "Same Unit" Revenues
Fiscal 1997 to Fiscal 1996 11%
1st Quarter Fiscal 1998 to 1st Quarter Fiscal 1997 13%
2nd Quarter Fiscal 1998 to 2nd Quarter Fiscal 1997 17%
3rd Quarter Fiscal 1998 to 3rd Quarter Fiscal 1997 20%
Although we are undertaking several initiatives to improve our
performance, you cannot be sure that these initiatives will be successful
and that "same unit" revenues will not continue to decline. In addition,
during the initial six to twelve months following its opening, a new unit
typically realizes higher revenues than in subsequent periods of operation.
The first six months of a unit's operations are not included in the "same
unit" analysis.
In fiscal 1997, 18 of our 53 company-owned units were included in
the "same unit" analysis and we expect 26 units to be included in fiscal
1998. Our 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.
<PAGE>
If We Cannot Respond to Consumer Tastes and Other Competitive
Factors, Our Stock Price Could Be Adversely Affected. Our ability, or
inability, to respond to various competitive factors affecting the
restaurant, retail and motion picture industries may have an effect on the
market price of our common stock.
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. You cannot
be sure that we will be able to respond to various competitive factors
affecting the restaurant and retail industries.
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.
We Are Subject To Restrictive Debt Covenants Which, If Not
Complied With, Could Limit Our Ability To Operate Our Business. The credit
facility and the documents governing the notes contain a number of
customary representations and warranties, affirmative covenants and
restrictive covenants that, among other things, limit our indebtedness,
liens, guarantee obligations, mergers, sales of assets, leases, dividends
and other payments in respect of our capital stock, capital expenditures,
investments, optional payments and modifications of subordinated and other
debt instruments, transactions with affiliates, sale leasebacks and
negative pledge arrangements.
The credit facility contains certain financial covenants including,
but not limited to, minimum interest coverage and maximum leverage and
customary events of default, including nonpayment of principal, interest or
fees, material inaccuracy of representations and warranties, violation of
covenants, cross-default, bankruptcy events, material judgments, ERISA,
actual or asserted invalidity of collateral documents and a change of
control.
Under the terms of the old credit facility, we were also required
to meet certain minimum quarterly net worth, interest coverage and various
other financial ratios. As a result of operating losses experienced through
the third quarter of fiscal 1998, we were not in compliance with two of the
financial covenants as of September 27, 1998. In December 1998, the lenders
amended the old credit facility, modified certain financial covenants and
waived our violation retroactively to September 27, 1998.
If we are unable to comply with the covenants of the credit
facility (as amended) or the notes, there would be a default under our
existing agreements. Such a default, if not waived, would require us to
adopt one or more other strategies that may include actions such as
reducing or delaying capital expenditures, selling assets, restructuring or
refinancing our indebtedness or seeking additional equity capital. You
cannot be sure that we could effect any of these strategies on satisfactory
terms, if at all.
We Have Continuing Obligations Due To Our Participation In Joint
Ventures, Which May Limit Our Ability To Operate Our Business. We have
begun, and we intend to continue, investing a substantial portion of the
proceeds of our March 1998
<PAGE>
$250.0 million subordinated 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:
(1) Planet Movies by AMC,
(2) the Official All Star Hotel and
(3) the Planet Hollywood Hotel.
In addition, we may incur obligations to third parties under
guarantees of indebtedness and other obligations of various joint venture
entities. Certain of these entities have incurred and, in the future, may
incur indebtedness that contains terms limiting or prohibiting the payment
of dividends or distributions to the equity investors in such entities
(including us). In addition, because we do not control distributions by
these entities, there can be no assurance that, even if funds were
available for distribution by these entities, we will receive any
distributions from these entities.
There Is A Risk That Our New Ventures Will Not Succeed Or May Not
Continue As Planned. Our new Sound Republic concept and our various new
strategic ventures are unproven. We cannot assure you that Sound Republic
or any new strategic venture pursued by us will be successful or that any
such strategic venture will contribute to our revenues and cash flow. Our
Official All Star Cafe theme concept remains in a relatively early stage of
development and has not yet met our original expectations. In light of
Aladdin's recent announcements regarding the failure to conclude
negotiations with us concerning a Las Vegas hotel/casino project, it is
very likely that such venture will not be pursued. See "The Company - Other
Recent Developments" beginning on page 3 for a description of why such
venture will not likely be pursued.
Furthermore, in connection with Mr. Baumhauer's appointment as our
President and Chief Operating Officer, all of our activities and strategic
initiatives are being reviewed in connection with an attempt to identify
opportunities for cost savings and increased operating efficiencies. Such
cost saving opportunities will include us seeking additional joint venture
partners for, or the divestiture of, certain activities or ventures,
including the Official All Star Hotel and our Sound Republic and Official
All Star Cafe concepts. You cannot be sure, therefore, that any of our
concepts or ventures will continue as planned.
We Have Experienced Strains On Our Management Because Of Past Rapid
Growth And There Are Continued Risks Associated With Our Ability To Manage
Growth. We have experienced substantial growth in a relatively short period
of time, including an increase in the number of company-owned and
franchised units. This rapid rate of growth has imposed, and our new Sound
Republic concept and strategic ventures may continue to impose, significant
strains on our management. Our failure to adequately manage our growth, or
unexpected difficulties encountered during expansion of our activities,
could have a material adverse impact on our results of operations and
financial condition.
Currency, Political And Other Risks Associated With Our
International Operations Could Negatively Impact Our Business. We may
experience adverse results in our foreign operations and you cannot be sure
that significant currency fluctuations will not adversely affect our
reported results. Our 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.
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.
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
<PAGE>
unit in South Africa). Uncertain economic conditions in certain foreign
markets also may adversely affect the operating results of franchised units
in those markets as well as the collectibility of receivables from those
units.
In addition, our international operations expose us to fluctuations
between the U.S. dollar, which is the reporting currency in our financial
statements, and the local currencies in which units outside the United
States transact business and on which royalties from franchises located
outside the United States are based. We have not historically engaged in
any significant hedging activities with respect to our non-U.S. dollar
operations.
Four Stockholders Control A Substantial Amount Of Our Stock And
May, Therefore, Influence Our Affairs. Three of our directors, including
the selling stockholder, and Kingdom Planet Hollywood, Ltd. beneficially
own the percentages of our outstanding common stock set forth in the
following table. Information concerning the named individuals has been
summarized from our most recent proxy statement on file with the SEC, a
document which is incorporated by reference into this prospectus. We refer
you to such proxy statement for a more detailed description of these stock
holdings.
Approximate Percentage
Beneficially Owned
Person/Entity and Position Prior to this Offering
- -------------------------- ----------------------
Robert Earl - Chief Executive Officer, 23%
Chairman of the Board and Director
Keith Barish - Director, selling stockholder 23%
Ong Beng Seng - Director 13%
Kingdom Planet Hollywood, Ltd. 16%
Accordingly, until there is a substantial decrease in the
percentage of the outstanding shares of common stock held by such
stockholders, they will continue to have significant influence over our
affairs, and if they choose to act together, will be able to elect all the
members of our Board of Directors and influence significantly the approval
of important corporate transactions and other matters requiring stockholder
approval without the approval of minority stockholders.
Exposure Of Our Brands, And Possibly Our Revenues, Could Decrease
If Direct Merchandise Sales Do Not Continue. 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.
Our Stock Price Could Be Adversely Affected By Sales Of
Unregistered Shares Or Other Shares Eligible For Future Sale. Sales of
substantial amounts of previously unregistered shares of our common stock
in the public market, or the perception that such sales could occur, could
adversely affect prevailing market prices of our common stock.
At January 1, 1999, we had approximately 97,221,632 shares of
common stock outstanding. Of the shares of common stock currently
outstanding, we estimate that there are approximately 43,000,000
unregistered shares of common stock outstanding, excluding the registered
shares, some of which may be freely traded or may be traded under certain
volume and other restrictions set forth in Rule 144 promulgated under the
Securities Act. In some circumstances, Mr. Barish may sell up to 1,000,000
additional shares of our common stock not offered by this prospectus
pursuant to Rule 144 under the Securities Act. See "Plan of Distribution"
below for a further description of this right.
<PAGE>
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 December 23, 1998, approximately 9,168,000 shares were subject
to outstanding options with a weighted average exercise price of
approximately $7.82 per share. Since both of the incentive plans have been
registered on Form S-8 with the SEC, shares of our common stock issued in
conjunction with the incentive plans are generally eligible for sale in the
open market.
We cannot predict what effect, if any, sales of shares of our
common stock under Rule 144 or otherwise, or the future availability of
such shares for sale, will have on the market price of our common stock.
Our Business Has Been Subject To Fluctuations In Quarterly Results
And Continued Fluctuations Could Negatively Impact Our Stock Price. The
market price of our common stock could be subject to wide fluctuations in
response to quarterly variations in operating results. Revenues and results
of operations are difficult to predict and may fluctuate substantially from
quarter to quarter. As we enter new markets and develop new concepts,
quarterly results may fluctuate more significantly. Moreover, as a result
of the revenues associated with each new company-owned unit and the
recognition of franchise fees, the timing of new unit openings may result
in significant fluctuations in quarterly results. In addition, our revenues
have generally been seasonal due to the greater number of tourists who
patronize our units during the summer and year-end holiday seasons.
Although units in certain locations are affected by different seasonal
influences, we have historically experienced our strongest operating
results from June through August. You cannot be sure, however, that such
trend will continue.
Our Stock Price Has Been, And May Continue To Be Subject To Large
Price Swings Which We May Or May Not Be Able To Control. Companies such as
ours, involved in the theme restaurant industry, have experienced
substantial price volatility in the market prices of their stock, 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 the market
price of our common stock:
o fluctuations in our operating results,
o announcements of new ventures or products by us or our
competitors,
o the perception by others of our ability 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 us and
o general market conditions.
We Have Previously Entered Into Transactions With Related Parties
Which May Pose Potential Conflicts of Interest. Certain related party
transactions between us and some of our directors and principal
stockholders may involve inherent conflicts of interest. In the past, we
have entered into business transactions with certain of our principal
stockholders, and may continue to enter into such transactions in the
future. We have no current plans to enter into any additional related party
transactions and our policy is not to enter into transactions with related
persons unless
<PAGE>
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.
There Is A Risk That The Value Of Our Trademarks And Other
Proprietary Rights Could Be Diminished By Improper Use By Others. We
believe that our trademarks and other proprietary rights are important to
our success and our competitive position. Accordingly, we devote
substantial resources to the establishment and protection of our trademarks
and proprietary rights. However, the actions taken by us to establish and
protect our trademarks and other proprietary rights may be inadequate to
prevent imitation of our products by others or to prevent others from
claiming violations of their trademarks and proprietary rights by us.
We May Not Be Able To Retain Our Founding Stockholders And Key
Executives. Our success has depended to a significant extent upon the
contributions of two of our founding and principal stockholders:
Position Expiration of Current Term
Name (other than stockholder) of Employment Agreement
Robert Earl Chief Executive Officer, December 2001
Chairman of the Board and
Director
Keith Barish Director No Current Agreement
Mr. Barish resigned as Chairman of the Board of Directors effective
November 10, 1998. Mr. Barish, who will continue as a director, cited the
recent addition of William Baumhauer as a timely opportunity for him to
step down as Chairman. The Board has subsequently elected Robert Earl to
serve as our Chairman of the Board of Directors. In connection with his
resignation, Mr. Barish terminated his employment agreement with us. You
cannot be sure that Mr. Barish will remain as one of our Directors.
We also believe that our ability to successfully implement our
business strategy and operate profitably depends on the continued
employment of our senior management team led by William Baumhauer, our
President, Chief Operating Officer and a Director. Mr. Baumhauer's
employment agreement with us expires in July 2001.
In the event of any of these individuals' or any of the other
senior executives' departure from us, you cannot be sure that we would be
able to attract or retain suitable successors. Any such departure could
materially adversely affect us. For example, pursuant to certain of our key
contractual arrangements, including the lease for the Planet Hollywood unit
in Orlando, Florida, upon the death, physical or mental incapacitation or
retirement of Mr. Earl, we may lose certain of the substantial benefits
that have contributed to our success or that are expected to contribute to
any of our future growth. We have obtained a $25 million key man life
insurance policy covering Mr. Earl, but you cannot be sure that the
coverage provided by such policy will be sufficient to compensate us for
the loss of Mr. Earl's services. Our future success will depend, in part,
on our continuing ability to attract, retain and motivate qualified
personnel.
Our Failure, Or The Failure of Entities That Do Business With Us,
To Be Year 2000 Compliant Could Negatively Impact Our Business. Year 2000
compliance is the ability of computer hardware and software to respond to
the problems posed by the fact that computer programs have traditionally
been written using two digits rather than four to define the applicable
year. As a consequence, unless modified, computer systems will not be able
to differentiate between the year 2000 and 1900. Failure to address this
problem could result in system failures and the generation of erroneous
data. In 1997, we assessed our own year 2000 compliance and, based on such
assessment, we expect to upgrade our critical computer systems to make them
year 2000 compliant before the end of fiscal 1999 without material
expenditures. We may, however, be adversely affected to the extent that
other entities that do business with us, particularly credit card
processors, are unable to achieve year 2000 compliance on a timely basis.
<PAGE>
We Are Subject To Extensive Government Regulation Which Could
Negatively Impact Our Business. 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
Any change in the current status of such regulations, including an increase
in the minimum wage, employee benefit costs, workers' compensation
insurance rates or other costs associated with employees, could
substantially increase our compliance and labor costs.
We may also be subject in certain states to "dram-shop" statutes,
which generally provide a person who is injured by an intoxicated person
the right to recover damages from an establishment that wrongfully served
alcoholic beverages to the intoxicated person.
Our Charter Documents And Delaware Law May Inhibit A Takeover. 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. Our certificate of incorporation and bylaws contain
certain provisions that may discourage other persons from attempting to
acquire control of us. These provisions include, but are not limited to:
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
our 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 restated
certificate.
In addition, our certificate of incorporation and the bylaws permit
special meetings of the stockholders to be called only by our Chief
Executive Officer or upon the request of a majority of the Board of
Directors, and deny stockholders the ability to call such meetings. Such
provisions, as well as the provisions of Section 203 of the Delaware
General Corporation Law (to which we are subject), could impede a merger,
consolidation, takeover or other business combination involving us or
discourage a potential acquiror from making a tender offer or otherwise
attempting to obtain control of us.
The Fact That We Do Not Expect To Pay Dividends May Lead To
Decreased Prices For Our Stock. We have never paid cash dividends on our
common stock and we do not anticipate paying any cash dividends in the
foreseeable future. In addition, the credit facility and the documents
governing the notes contain restrictions on our ability to declare and pay
cash dividends. Accordingly, any future determination to pay cash dividends
would be subject to such restrictions
<PAGE>
and would be dependent upon our financial condition, results of operations,
capital requirements and such other factors as our Board of Directors deems
relevant.
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:
o 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);
o Current Report on Form 8-K dated March 25, 1998 (filed March
26, 1998);
o Current Reports on Form 8-K dated March 9, 1998 (each filed
March 10, 1998);
o Definitive Proxy Statement dated April 20, 1998, filed in
connection with the Company's 1998 Annual Meeting of
Stockholders (filed April 14, 1998);
o Registration Statement on Form S-4, as amended, dated May 1,
1998 (Registration No. 333-51655);
o Quarterly Report on Form 10-Q for the quarterly period ended
March 29, 1998 (filed on May 13, 1998);
o Current Report on Form 8-K dated July 27, 1998 (filed on July
30, 1998);
o Current Report on Form 8-K dated November 10, 1998 (filed on
November 12, 1998);
o Quarterly Report on Form 10-Q for the quarterly period ended
June 28, 1998 (filed on August 11, 1998);
<PAGE>
o Quarterly Report on Form 10-Q for the quarterly period ended
September 27, 1998 (filed on November 12, 1998); and
o 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.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares
offered hereby nor will such proceeds be available for our use or benefit.
All proceeds from the sale of such shares will be for the account of the
selling stockholder. See "Selling Stockholder" and "Plan of Distribution"
below.
SELLING STOCKHOLDER
The selling stockholder under this prospectus is Keith Barish, one
of our co-founders and directors.
Mr. Barish recently resigned as Chairman of the Board of Directors.
Mr. Barish cited the recent appointment of Mr. Baumhauer to the positions
of President and Chief Operating Officer as a timely opportunity for him to
step down as Chairman. Mr. Barish remains as a member of the Board of
Directors. 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
<PAGE>
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 have filed our agreement with Mr. Barish, as amended on December
14, 1998, as an exhibit to the registration statement of which this
prospectus is a part. 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 Ownership after
shares of our Number of offering (3)
common stock before shares being
offering (1) offered
------------------------ -----------------------
Name of
Selling Number of Number of
Stockholder 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 January
1, 1999.
(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 sale 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:
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 us and
<PAGE>
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 our written approval. 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.
Subject to the same restrictions set forth above, Mr. Barish may
also sell, in one transaction, 1,000,000 additional shares of our common
stock not offered by this prospectus pursuant to Rule 144 under the
Securities Act; provided, however, that
o Mr. Barish may sell less than 1,000,000 shares in such
transaction if the volume limitations of Rule 144
require him to sell fewer than 1,000,000 shares,
o such transaction may only occur concurrently with or
subsequent to the sale of all the shares offered by
this prospectus and
o any rejection by us of a prospective purchaser for such
shares will count toward the maximum number of
rejections allowed before Mr. Barish's termination
rights are triggered.
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 us 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>
[LOGO]
<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.............................. 6,000.00
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............................................. $ 40,479.80
==========
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 insurance on behalf of any person who is
or was a director, officer, employee or agent of the
<PAGE>
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
4.1** Amended Credit Agreement, dated as of December 8, 1998, among the
Registrant, SunTrust Bank and certain other lenders (the "credit
facility")
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, as amended on December 14, 1998
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)
** Filed herewith
*** Previously filed
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.
<PAGE>
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) 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 duly caused this Amendment No. 1 to 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 11th day of
January, 1999.
Planet Hollywood International, Inc.
Registrant
By: /s/ William H. Baumhauer
---------------------------- Date: January 12, 1999
William H. Baumhauer
President and Chief
Operating Officer
By: /s/ Thomas Avallone
---------------------------- Date: January 12, 1999
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
* Chairman of the Board of January 12, 1999
- ---------------------- Directors, Director and
Robert Earl Chief Executive Officer
*
- ---------------------- Director, President and January 12, 1999
William Baumhauer Chief Operating Officer
/s/ Thomas Avallone Director, Executive Vice January 12, 1999
- ---------------------- President and Chief
Thomas Avallone Financial Officer
* Director January 12, 1999
- ----------------------
Keith Barish
* Director January 12, 1999
- ----------------------
Claudio Gonzalez
* Director January 12, 1999
- ----------------------
Mark McCormack
* Director January 12, 1999
- ----------------------
Michael Montague
* Director January 12, 1999
- ----------------------
Ong Beng Seng
* Director January 12, 1999
- ----------------------
Isadore Sharp
* Director January 12, 1999
- ----------------------
Michael Tarnopol
---------------------
* The undersigned, by signing his name hereto, does hereby sign this
registration statement or amendment thereto on behalf of the above
indicated directors and officers of Planet Hollywood International,
Inc. pursuant to powers of attorney executed on behalf of each such
director and officer.
By: /s/ Thomas Avallone
-----------------------------------
Thomas Avallone
Attorney-in-Fact
<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
4.1** Amended Credit Agreement, dated as of December 8, 1998,
among the Registrant, SunTrust Bank and certain other
lenders (the "credit facility")
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, as amended on December 14, 1998
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)
** Filed herewith
*** Previously filed
*****************************************************
EXHIBIT 4.1
FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (the "First Amendment") dated as of December 8, 1998 by and among
PLANET HOLLYWOOD INTERNATIONAL, INC., a Delaware corporation, ("Borrower")
and SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, ("SunTrust"), a
national banking association, THE BANK OF NOVA SCOTIA, ("Scotia Bank"), a
Canadian chartered bank, (collectively, the "Lenders", and individually, a
"Lender") and SunTrust, as Administrative Agent for the Lenders, Scotia
Bank as Syndication Agent for the Lenders, and SunTrust and Scotia Bank as
Agents for the Lenders.
W I T N E S S E T H
WHEREAS, on or about March 25, 1998, the Borrower, the Agents and
the Lenders entered into a certain Amended and Restated Revolving Credit
Agreement (the "Initial Loan Agreement") dated March 25, 1998 pursuant to
which the Lenders and the Borrower restructured the then existing credit
facilities which had been extended to the Borrower into a single Total
Revolving Loan in the aggregate amount of $65,000,000 (the "Revolving
Loans"); and
WHEREAS, as a part of the Revolving Loans, but separate
therefrom, the Lenders also extended for and on behalf of the Borrower
through one of its subsidiaries a Credit Facility in the nature of a
Synthetic Lease in the aggregate face amount of $35,000,000 (the "Synthetic
Lease"). For the purposes of the Initial Loan Agreement and the other
Credit Documents, the Borrower shall be deemed to be the person primarily
obligated under the Synthetic Lease, although the primary obligor is a
subsidiary of the Borrower; and
WHEREAS, in connection with the Synthetic Lease, SunTrust Bank,
Atlanta (the "Creditor"), an affiliate of SunTrust and the Borrower entered
into an interest rate swap so as to fix the interest rate in connection
with the obligations due and owing under the Synthetic Lease, which
obligation, although contingent, would become due and payable at such time
as the Synthetic Lease is "unwound" (the "Interest Rate Swap"). For the
purposes of the Interest Rate Swap, the Creditor shall be deemed to be a
Lender for the purposes of the Initial Loan Agreement and the other Credit
Documents, even though the Creditor may not be a party signatory to all the
Credit Documents; and
WHEREAS, the Borrower, the Agents, and the Lenders have reached an
agreement to modify and restructure the Revolving Loans, the Synthetic
Lease, and the Interest Rate Swap (collectively, the "Credit Facilities")
so as to provide for, among other matters:
<PAGE>
A. In regard to the Credit Facilities:
(i) Pay off any outstanding balance due on the
Revolving Loans with a further provision that no further
Advances may be extended as a Revolving Loan. Those Letters
of Credit which are outstanding may remain but will be
separately secured by certain Cash Collateral (as defined
below). Outstanding Letters of Credit may only be renewed
with the consent of the Required Lenders; and
(ii) Restructure the payment dates and amounts due
under the Synthetic Lease; and
(iii) Confirm the obligations of the Borrower in
connection with the Interest Rate Swap, with provisions for
satisfying said obligation as and when payments are made on
the Synthetic Lease.
B. Amend and modify various provisions of the Initial Loan
Agreement and other Credit Documents including, by way of
limitation, the Maturity Date for the Loans, the financial
covenants, and the collateral provisions, and the parties hereto
wish to set forth said changes in this First Amendment.
NOW, THEREFORE, for and in consideration of the above premises
and the mutual covenants and agreements contained herein, the Borrower, the
Agent, and the Lenders agree as follows:
1. DEFINITIONS. Unless defined or re-defined in this First
Amendment, capitalized terms contained herein shall have the meanings
defined and set forth in the Initial Loan Agreement.
2. ADDITIONAL DEFINITIONS. There is hereby added to Section 1.1
of the Initial Loan Agreement the following additional definitions:
"Cash Collateral" shall mean for each Letter of Credit, a
Certificate of Deposit (in paperless form), with the amount of
each Certificate of Deposit to be agreed upon between SunTrust
and the Borrower.
"Creditor" shall mean SunTrust Bank, Atlanta, an affiliate
of SunTrust, and the entity which has extended Facility C. For
the purposes of the Agreement and each and every other Credit
Document, SunTrust Bank, Atlanta, shall be deemed to be a
"Lender" and entitled to all the benefits and privileges of said
Credit Document, notwithstanding that it is not a signatory to
said other Credit Document. The purpose of this definition is to
provide to SunTrust Bank, Atlanta, the benefits as a Lender in
connection with Facility C. Notwithstanding the foregoing, the
consent of SunTrust Bank, Atlanta shall not be required in
connection with any Credit Document, as the only consent will be
that of the Required Lenders (being SunTrust and Scotia Bank),
except in connection with the Interest Rate Swap, for which any
change would require the consent of SunTrust Bank, Atlanta.
<PAGE>
"Equity Component" shall mean in regard to the Synthetic
Lease, the Lessor's Invested Amount (as defined in the Master
Agreement) in the amount of $1,050,000.
"Facility A" shall mean the Revolving Loans (which includes
all Letters of Credit).
"Facility B" shall mean the Synthetic Lease.
"Facility C" shall mean the Interest Rate Swap.
"Interest Rate Swap" shall mean the Interest Rate Swap
Agreement entered into between the Borrower and SunTrust to fix
the interest rate due under the Synthetic Lease.
"Master Agreement" shall mean the Master Agreement, dated as
of November 24, 1997, among Planet Hollywood (Region III), Inc.,
as Lessee, the Borrower as Guarantor, Atlantic Financial Group,
Ltd., as Lessor, certain financial institutions parties thereto,
as Lenders, The Bank of Nova Scotia, as Documentation Agent, and
SunTrust, as Agent, as such agreement has heretofore been, may
contemporaneously herewith be or may hereafter be amended or
supplemented.
"New York Property" shall mean the property described by and
covered by the Synthetic Lease.
"Synthetic Lease" shall mean the Lease, as defined in the
Master Agreement.
"Synthetic Lease Documents" shall mean the Operative
Documents as defined in the Master Agreement.
"Synthetic Lease Notes" shall collectively mean the
promissory notes issued in connection with the Synthetic Lease
including the following:
1. A Acquisition Note dated November 24, 1997 from the
Lessor to the Mortgagee, as Agent (the "Agent") in the face
amount of $16,400,000; and
2. B Acquisition Note dated November 24, 1997 from the
Lessor to the Agent in the face amount of $3,000,000; and
3. A Construction Note dated November 24, 1997 from the
Lessor to the Agent in the face amount of $12,300,000; and
4. B Construction Note dated November 24, 1997 from the
Lessor to the Agent in the face amount of $2,250,000.
3. AMENDMENT OF EXISTING DEFINITIONS. The following definitions
set forth in Section 1.1 of the Initial Loan Agreement are hereby amended
as follows:
<PAGE>
"Collateral" shall mean, except where otherwise directed by
the Administrative Agent, all tangible and intangible assets of
the Borrower, including, but not limited to, the Cash Collateral,
all Stock Collateral, notes from subsidiaries referenced on
Schedule 7.10, general intangibles such as franchises,
trademarks, brands, licenses, patents and other rights necessary
for the operation of its business, the Headquarters Property and
the New York Property. To the extent any general intangibles such
as franchises, trademarks, brands, licenses, patents and other
rights necessary for the operation of its business on a domestic
basis or located in a Subsidiary, then those assets in the
Subsidiary will also be included within the term "Collateral"
unless otherwise set forth by the Required Lenders.
"Consolidated EBITDA" shall mean an amount equal to the sum
of the Consolidated Companies' Consolidated Net Income (Loss),
plus, to the extent deducted in determining Consolidated Net
Income (Loss), (i) Consolidated Income Tax Expense, (ii)
Consolidated Interest Expense, (iii) depreciation and
amortization, and (iv) non-cash charges which were included in
determining the Consolidated Companies' net income for its fourth
quarter for its 1998 fiscal year. EBITDA shall be adjusted to
include the audited trailing twelve months EBITDA of any acquired
entity.
"Credit Documents" shall mean, collectively, the Agreement,
as amended from time to time, the Notes, the Pledge Agreement,
the Security Agreement, and all other Security Documents, the
Guaranty Agreements, and all other Guaranty Documents, the
Synthetic Lease Documents, together with all other documents,
agreements, certificates, schedules, notes, statements and
opinions, however described, referenced herein or delivered
pursuant hereto or in connection with or arising out of the Loans
or the transactions contemplated by this Agreement.
"Maturity Date" shall mean the earlier of (i) June 30, 1999,
or such later date as may be approved by the Agents and the
Lenders, in their sole discretion, or (ii) the occurrence of an
Event of Default.
"Obligations" shall mean all amounts owing to the Agents or
any Lender pursuant to the terms of this Agreement or any other
Credit Document (which, by definition, includes any and all
obligations due and owing under the Synthetic Lease and each
other Synthetic Lease Document (which includes all obligations in
regard to the Equity Component) and the Interest Rate Swap),
including without limitation, all Loans (including all principal
and interest payments due thereunder), all obligations in
connection with all Letters of Credit, interest rate cap
agreements, interest rate swap agreements, foreign currency
exchange agreements and other hedging agreements or arrangements,
fees, expenses, indemnification and reimbursement payments,
indebtedness, liabilities, and obligations of the Credit Parties,
direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising, together with
all renewals, extensions, modifications or refinancings thereof.
<PAGE>
"Revolving Loans" shall mean, collectively, the revolving
credit loans made to Borrower by the Lenders pursuant to Section
2.1, including all Letters of Credit.
"Total Revolving Loan Commitment" shall mean the sum of the
Revolving Loan Commitments of all the Lenders in the aggregate
amount of $6,797,357.34. This amount represents the face amounts
currently outstanding in U.S. dollars on the Letters of Credit.
4. DELETION OF DEFINITIONS. The following definitions are deleted
from the Initial Loan Agreement:
"Lease" shall mean the lease to be entered into by and
between Atlantic Financial Group, Ltd., as the lessor, and the
Borrower, as the lessee, with respect to the New York Restaurant.
(NOTE: This definition is being deleted as it is being redefined
under paragraph 2 above as a "Synthetic Lease").
"Maximum Letter of Credit Amount" shall mean $10,000,000.00.
"Maximum Multicurrency Loan Amount" shall mean the U.S.
Dollar Equivalent of $25,000,000.00.
"Maximum Swing Line Amount" shall mean $5,000,000.00.
"Multicurrency Loans" shall mean Revolving Loans made in an
Available Foreign Currency and bearing interest at the Foreign
Currency Rate plus the Applicable Margin.
"Revolving Loans A" shall mean, collectively, the revolving
credit loans made to the Borrower by the Lenders pursuant to
Section 2.1, including multicurrency loans and swing line loans,
up to the aggregate principal amount of $100,000.00.
"Revolving Loans B" shall mean, collectively, the revolving
credit loans made to the Borrower by the Lenders pursuant to
Section 2.1, including multicurrency loans and swing line loans,
up to the aggregate amount of $64,900,000.00.
"Swing Line Advance" shall mean any Loan or Advance made or
outstanding hereunder made as a Swing Line Loan and bearing
interest based on the Swing Line Rate.
"Swing Line Commitment" shall mean the amount of such
commitment set forth under the Administrative Agent's name on the
signature page hereof, as the same may be increased or decreased
from time to time as a result of any amendment thereof pursuant
to Section 11.2.
<PAGE>
"Swing Line Lender" shall mean the Administrative Agent
subject, however, to the provisions of Section 2.1(i) below, in
which event, the term "Swing Line Lender" shall mean all the
Lenders.
"Swing Line Loan" shall mean those Revolving Loans which are
extended by the Swing Line Lender under the provisions of Section
2.1(i) below.
"Swing Line Rate" shall mean the absolute rate of interest
offered by the Swing Line Lender applicable to Swing Line
Advances.
"Swing Line Loans" shall mean the revolving credit loans
made to the Borrower by the Administrative Agent pursuant to
Section 2.1(i).
5. AMENDMENTS TO INITIAL LOAN AGREEMENT. The Initial Loan
Agreement is hereby amended as follows:
(a) In regard to Article II regarding the revolving loans
and the letters of credit, the Borrower has paid all amounts
currently outstanding on all revolving loans and has further
agreed that it shall have no further right to obtain any further
or additional Advances, Letters of Credit or other Borrowings of
any nature whatsoever under the Revolving Loans. As such, the
Lenders are under no further obligations of any nature whatsoever
to extend to the Borrower any credit as a Revolving Loan.
(b) In regard to Section 2.7 regarding General Provisions as
to Letters of Credit, there is hereby added the following
subsections (d) through (f):
"(d) As of the date hereof, Schedule 2.7 attached
hereto sets forth all the outstanding Letters of Credit.
(e) In connection with the outstanding Letters of
Credit, the following provisions shall apply:
(i) The Borrower shall pledge to and grant a security
interest in the Cash Collateral to secure any reimbursement
obligations to the Lenders in connection with the Letters of
Credit. The Cash Collateral shall secure all the Letters of
Credit.
(ii) The Borrower shall use all reasonable efforts to
cause the Letters of Credit to be terminated so that said
obligations shall no longer be outstanding. In this regard,
SunTrust shall be under no duty or obligation to renew or
extend any Letter of Credit and, to the extent permitted
under the terms of the Letter of Credit, SunTrust may notify
the holder of said Letter of Credit that it is being
canceled or terminated.
(f) The Cash Collateral to be pledged for each Letter
of Credit is set forth in Schedule 2.7 attached hereto. In
regard to those Letters of Credit which are issued in
foreign currency, the amount of the Cash Collateral is 125%
of the face amount of the Letter of Credit. If, due to
currency fluctuations, the amount of the Cash Collateral
should at any
<PAGE>
time and from time to time fall to 115% or less of the face
amount of the Letter of Credit, the Borrower shall pledge
additional Cash Collateral to bring said coverage back to
125%. "
(c) In regard to Article III (which was not applicable in
the Initial Loan Agreement), that Article is now applicable in
regard to the Synthetic Lease and related Interest Rate Swap as
follows:
"Section 3.1 Synthetic Lease Notes - Amounts Due. The
Borrower does hereby state and confirm that there is due and owing on the
Synthetic Lease Notes as of the date hereof the unpaid principal balance of
$34,808,910.88 together with interest on a quarterly basis from and after
November 24, 1998. The Borrower does further state and agree that said
amounts are absolutely and unconditionally due and owing on said Synthetic
Lease Notes, and are not subject to any claim, counter-claim, defense or
other right of offset.
Section 3.2 Payment of Synthetic Lease - Mandatory Payments.
The Borrower shall pay or cause to be paid the Synthetic Lease Notes and
the obligations owing under the Synthetic Lease as follows:
(a) Interest. Interest shall continue to be paid by the
Borrower (as Basic Rent under the Synthetic Lease) as and when
due and in accordance with the terms of the Synthetic Lease
Notes.
(b) Principal. The Borrower shall continue to make scheduled
principal payments due on the Synthetic Lease as and when due.
(c) Required Principal Reductions. The Borrower shall make
the following mandatory Basic Rent Payments on the Synthetic
Lease:
(i) Simultaneous with the execution of this First
Amendment, the Borrower has made a payment in the amount of
$10,000,000.
(ii) On or before March 31, 1999, the Borrower shall
make a further mandatory payment in the amount of
$12,500,000. Each payment shall be applied equally to
SunTrust and Scotia Bank.
(d) Maturity Date. Each Synthetic Lease Note and all other
obligations owing under the Synthetic Lease shall be due and
payable in full on June 30, 1999 (i.e. the Maturity Date).
Section 3.3 Interest Rate Swap. In regard to the Interest
Rate Swap:
(a) The Credit Facility under the Interest Rate Swap
has been extended by SunTrust Bank, Atlanta, an affiliate of
SunTrust. Notwithstanding that SunTrust Bank, Atlanta, may
not be a signatory to this Agreement or one or more other
Credit Documents, SunTrust Bank, Atlanta, shall be deemed to
be a Lender hereunder and be entitled to the benefits and
privileges set forth in this Agreement and each other Credit
Document. Specifically, the Collateral shall secure any
obligations due SunTrust Bank, Atlanta in connection with
the Interest Rate Swap, and
<PAGE>
any mortgage, security interest or other lien held by any
one or more of the Agents shall further be held to secure
Facility C due and owing to SunTrust Bank, Atlanta.
(b) As and when mandatory principal reductions are paid
on the Synthetic Lease as set forth in Section 3.2(c) above,
the Interest Rate Swap shall be "unwound" on a pro-rata
basis.
(c) The Interest Rate Swap will, in any event, be fully
unwound at such time as obligations due under the Synthetic
Lease (including, but not limited to, the Synthetic Lease
Notes) is paid in full but in no event later than the
Maturity Date.
As and when the Interest Rate Swap is "unwound" from time to
time, the Borrower shall pay to the Lender (in this case, SunTrust Bank,
Atlanta, which has provided this Facility) any obligation arising out of
said Interest Rate Swap.
(a) Subsection 5.1(s) regarding the mortgage is amended in
its entirety to read as follows:
"(s) The Mortgage has been recorded and otherwise
implemented so that the Lenders hold a first mortgage on the
Headquarters Property, which Mortgage shall secure all the
Obligations (including the Synthetic Lease and the Interest
Rate Swap), but not to exceed insofar as principal is
concerned the principal amount of $20,000,000. The Mortgage
shall further secure interest earned or due on said
principal, together with costs and collection expenses,
including attorney's fees, and other related expenses."
(b) There is hereby added to Section 5.1 the following
subsection (u):
"(u) The Borrower has executed all Security Documents
so as to grant to SunTrust (for the benefit of all the
Lenders) a first, security interest in the Cash Collateral."
(c) Section 7.8 regarding Financial Covenants is hereby
amended in its entirety to read as follows:
"Section 7.8 Financial Covenants
(a) Consolidated EBITDA. Maintain on the last day of
each calendar quarter, calculated on a rolling four-quarter
basis based upon the Borrower's financial statements for the
immediately preceding four quarters, Consolidated EBITDA of
$0.00 or greater. For the purposes of determining this
Financial Covenant, any cash payments or expenditures
incurred by the Borrower in connection with any
restructuring incurred after June 1, 1998 shall be deemed to
be an expense and included in determining this Financial
Covenant, with said cash payments or
<PAGE>
expenditures being deemed to have been "incurred" when said
cash payments or expenditures are actually made.
(b) Consolidated Net Worth. Maintain on the last day of
each calendar quarter consolidated net worth of at least
$125,000,000 . "
(d) There is hereby added to Article VII the new following
Section 7.14 regarding the marketing and sale of the Headquarters
Property and the New York Property:
"Section 7.14 Sale of Headquarters and New York Properties.
As a result of the restructuring of the Credit Facilities as reflected in
this First Amendment, the Borrower has agreed to exercise its best efforts
to dispose of the Headquarters Property (on which the $20,000,000 principal
mortgage has been imposed) and the New York Property (which is subject to
the Synthetic Lease). In that regard:
(a) The Borrower shall immediately undertake all
reasonable actions to dispose of said Facilities including
the engagement of an appropriate broker to list and assist
the Borrower in the sale of said properties.
(b) The Borrower shall use its best efforts in good
faith to follow all commercially reasonable practices in
order to sell and dispose of said Facilities.
(c) The Borrower shall keep the Lenders advised and
furnish them with copies of documents relating to said
efforts including copies of listing agreements, sales
materials, etc.
(d) No facilities may be disposed of without the prior
approval of the Required Lenders. If so approved, the net
proceeds due the Borrower shall be applied as an additional
principal reduction on the Synthetic Lease and shall be
applied to the last amounts coming due on the Synthetic
Lease.
6. MODIFICATION OF SCHEDULES. In regard to the Schedules attached
to the Initial Loan Agreement, the Borrower reaffirms each of said
Schedules except for the Schedules as set forth below, which Schedules are
so amended (as of the date hereof) in the form attached to this First
Amendment. In regard to those Schedules which have not been so amended as
set forth below, the Borrower does hereby reconfirm and ratify the
information contained in the Schedules attached to the Initial Loan
Agreement, except for changes thereto occurring only in the ordinary course
of business. By way of illustration, the Borrower confirms that there have
been no material changes to said Schedules and there have been no new
Material Subsidiaries:
Schedule 2.7 Outstanding Letters of Credit
7. LOAN AGREEMENT. From and after the date of this First
Amendment, the term "Loan Agreement", shall mean the Initial Loan Agreement
as modified by this First Amendment. Further, to the extent applicable, all
Loan Documents shall be deemed hereof to be automatically amended so as to
refer to and reflect the
<PAGE>
transactions contemplated by this First Amendment. This First Amendment
shall be deemed to be a permitted amendment to the Initial Loan Agreement
and, accordingly, shall be deemed to be a Loan Document. The Loan Agreement
shall not be incorporated into the Notes.
8. WAIVER OF PRIOR DEFAULT. Effective as of the date hereof, the
Required Lenders waive Borrower's compliance with Section 7.8 for all
periods prior to September 27, 1998, and further waive all known defaults
that arose out of Borrower's non-compliance with Section 7.8 for said prior
periods.
9. RATIFICATION. Except as set forth in this First Amendment, the
Borrower does hereby ratify and confirm the Initial Loan Agreement, along
with its existing schedules and all other Credit Documents. In that regard,
the Borrower does hereby agree with the Lenders that in regard to each
Credit Document, the Borrower has no claim, counterclaim, defense or other
right of offset whatsoever either upon the Credit Documents or against any
Lender, and, to the extent any such claim, counterclaim, defense or other
right or offset exists, whether known or unknown, said claim, counterclaim,
defense or other right of offset is hereby expressly unknowingly waived in
consideration for the amendment and modification of the Credit Facilities
as agreed to by the Lenders.
[Signatures Begin on Following Page]
<PAGE>
SIGNATURE PAGE TO
FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST BANK AND SCOTIA BANK, AS AGENTS
AND PLANET HOLLYWOOD INTERNATIONAL, INC.
BORROWER:
8669 Commodity Circle PLANET HOLLYWOOD
Orlando, Florida 32819 INTERNATIONAL, INC.
Telecopy No.: (407) 352-7310
Telephone No.: (407) 363-7827
By: /s/ Thomas Avallone
--------------------------
Thomas Avallone,
Executive Vice President
In the case of Notices to the Borrower, copies shall be sent to:
Byrd F. Marshall, Jr., Esquire
GRAY, HARRIS & ROBINSON, P.A.
201 East Pine Street
Suite 1200
Orlando, Florida 32801
Telephone No.: (407) 244-5690
Telecopy No.: (407) 843-8880
<PAGE>
SIGNATURE PAGE TO
FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST BANK AND SCOTIA BANK, AS AGENTS
AND PLANET HOLLYWOOD INTERNATIONAL, INC.
Address for Notices: SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION,
Individually and as Administrative
Agent and Agent
200 South Orange Avenue
6th Floor, SOAB
Post Office Box 3833
Orlando, Florida 32897 By: /s/ Vipul H. Patel
------------------------------
Vipul H. Patel,
First Vice President
Attention: Vipul H. Patel,
First Vice President
Telephone No.: (407) 237-5352
Telecopy No.: (407) 237-4076
Lending Office:
200 South Orange Avenue
6th Floor, SOAB
Post Office Box 3833
Orlando, FL 32897
Attention: Vipul H. Patel,
First Vice President
Telephone No.: (407) 237-5352
Telecopy No.: (407) 237-4076
- ---------------------------------
Revolving Loan Commitment(1): $3,398,678.67(2)
Pro Rata Share of Revolving Loan Commitment: 50.00%
(1) The Revolving Loan Commitment represents solely Letters of Credit
which are outstanding as of the date of this First Amendment. There is
no further obligation to extend any Advances (including any additional
Letters of Credit) under this Agreement.
(2) This represents 1/2 in U.S. dollars of all outstanding Letters of
Credit.
<PAGE>
SIGNATURE PAGE TO
FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST BANK AND SCOTIA BANK, AS AGENTS
AND PLANET HOLLYWOOD INTERNATIONAL, INC.
Address for Notices THE BANK OF NOVA SCOTIA
Individually and as
Atlanta Agency, Suite 2700 Syndication Agent and Agent
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
By:
---------------------------
Attention: Mr. Frank Sandler
Name:
----------------------------
Telephone No.: (404) 888-8998
Telecopy No.: (404) 877-1505
Title:
--------------------------
Payment Office
Atlanta Agency, Suite 2700
600 Peachtree Street, N.E.
Atlanta, GA 30308
Attention: Ms. Dorothy Legista,
Loan Administration
- ---------------------------------
Revolving Loan Commitment(1): $3,398,678.67(2)
Pro Rata Share of Revolving Loan Commitment: 50.00%
(1) The Revolving Loan Commitment represents solely Letters of Credit
which are outstanding as of the date of this First Amendment. There is
no further obligation to extend any Advances (including any additional
Letters of Credit) under this Agreement.
(2) This represents 1/2 in U.S. dollars of all outstanding Letters of
Credit.
<PAGE>
Schedule 2.7
SCHEDULE OF OUTSTANDING LETTERS OF CREDIT
Amount of
Amt in Local Expiry Amt in Collateral
L/C# Currency(1) Beneficiary Date USD(2) (3)(7)
F700340 F3000,000(4) BNP 7/20/99 $ 544,393.72 $ 687,500.00
F700416 $300,718.65 140 West 12/31/99 $ 300,718.65 $ 300,718.65
57th Street
F700488 $10,000.00 State of 06/26/99 $ 10,000.00 $ 10,000.00
Washington
F700576 DM 25000000(5) Bayerische 1/15/99 $1,491,824.80 $1,875,000.00
Landesbank
F700605 $1,600,000 Travelers 12/31/99 $1,600,000.00 $1,600,000.00
F700643 $1,800,000 Paramount 10/01/99 $1,800,000.00 $1,800,000.00
Leasehold
F700733 Fr.$1,500,000(6) Turintra & 10/31/99 $1,050,420.17 $1,375,000.00
Zurimo
Totals $6,797,357.34 $7,648,218.65
(1) This reflects the face amount of the Letter of Credit in local
currency (e.g. U.S. Dollars, French Francs, etc.).
(2) This represents the amount of the Letter of Credit in U.S. Dollars,
including for foreign currencies, the conversion to U.S. Dollars.
(3) This represents the amount of Cash Collateral in U.S. Dollars to be
pledged for each Letter of Credit.
(4) This Letter of Credit is in French Francs.
(5) This Letter of Credit is in Deutsche Marks.
(6) This Letter of Credit is in Swiss Francs.
(7) With respect to Letters of Credit which are in foreign currency, the
parties have agreed that the amount of the Cash Collateral will be
equal to 125% of the face amount of the letter of credit in U.S.
dollars. As set forth in Section 2.7(f) above, if by virtue of any
currency swings or adjustments, the amount of the collateral drops at
any time to 115% or less of the face amount of the Letter of Credit,
the Borrower will at that time pledge additional cash collateral to
bring said margin back up to 125% of the face amount of the Letters of
Credit.
CONFIDENTIAL SETTLEMENT MATERIAL
Planet Hollywood International, Inc.
8669 Commodity Circle
Orlando, Florida 32819
November 6, 1998
Mr. Keith Barish
One Central Park West
New York, NY 10023
Dear Mr. Barish:
This letter agreement is intended to set forth the agreements you
and we have reached in our discussions over the past few days.
1. You shall, upon the effectiveness of this letter agreement,
execute and deliver to the Company a letter of resignation as Chairman of
the Board of Directors (but not as a Director at this time) and as an
employee of the Company (the "Resignation Letter") in the form attached as
Annex A hereto.
2. You and we shall, and we shall cause Mr. Robert Earl to, upon
the effectiveness of this letter agreement, execute and deliver the
applicable releases (the "Releases") in the forms attached as Annex B-1 and
Annex B-2 hereto.
3. You and we shall, upon the effectiveness of this letter
agreement, execute and deliver a registration rights agreement (the
"Registration Rights Agreement") in the form attached as Annex C hereto.
4. You and we shall, upon the effectiveness of this letter
agreement, execute and deliver a lock-up letter (the "Lock-up Letter") in
the form attached hereto as Annex D.
5. Upon or as promptly as practicable after the effectiveness of
this letter agreement, the Company shall, in compliance with the procedures
of the New York Stock
<PAGE>
2
Exchange ("NYSE"), issue a press release (the "Press Release") in the form
attached hereto as Annex E.
6. Except for the Press Release, neither you nor we shall,
without the prior written consent of the other party hereto, issue or
publish any other public statement, in written, verbal or any electronic
format, concerning the substance of this letter agreement; provided,
however, that (i) you and we shall be entitled to make any disclosure
required by law without the other party's prior written consent and,
specifically, that the Company shall be entitled without your prior written
consent to (A) include in its filings with the Securities and Exchange
Commission (the "SEC") and the NYSE disclosure concerning this letter
agreement that is substantially similar to the disclosure in the Press
Release and (B) file copies of this letter agreement or any part hereof or
any of the documents referred to herein as an exhibit to any filings made
with the SEC and the NYSE and (ii) we shall be entitled, in response to
inquiries from or other conversations with analysts or investors, to make
any disclosure consistent with our customary practices and consistent with
the disclosure contained in the Press Release or this letter agreement and
the annexes hereto.
7. Neither you nor we shall make or publish any public statement,
or make any private statement to any shareholder of the Company or any
celebrity that promotes the Company's business, whether in written, verbal
or electronic format, that is designed or intended to disparage or
embarrass, the other party hereto (including, in the case of the Company,
any of its directors, officers, employees, participating celebrities or
shareholders). In furtherance of the foregoing, you shall not, in any
dealings with celebrities who promote the Company's restaurants and other
ventures, act in a way that is both designed or intended to, and which does
in fact, adversely affect the continuing involvement of such celebrities in
the promotion of the Company's business. The making of a true statement of
fact (i) in the scope of your responsibilities to the Company as a Director
or (ii) to a celebrity in response to an inquiry from such celebrity shall
not be construed to fall within the scope of the limitation in the
preceding sentence.
8. Each of the parties agrees that any violation of his or its
agreements set forth in paragraph 6 and 7 will be deemed to have caused
irreparable injury to the other party hereto and that there would in such
case be no adequate remedy at law. Accordingly, each of the parties agrees
that such agreements shall be enforceable by the other party through any
equitable remedy, including
<PAGE>
3
injunctive relief and specific performance. Notwithstanding the foregoing,
each party shall be entitled to seek any available remedy at law, and no
remedy shall be exclusive of any other remedy. In addition, each of the
parties shall cause his or its officers, directors, employees, agents,
family members, advisors and attorneys to comply with the provisions of
paragraphs 6 and 7 as fully as if such persons were signatories to this
letter agreement.
9. Any notice or communication pursuant to this letter agreement
shall be in writing and delivered in person or telecopied (with telephonic
confirmation) or delivered by overnight courier, addressed as follows:
if to Mr. Barish:
Mr. Keith Barish
One Central Park West
New York, NY 10023
Telecopy: 212-957-3915
with a copy to:
Robert Silver, Esq.
Christopher Boies, Esq.
Boies & Schiller LLP
80 Business Park Drive
Armonk, NY 10504
Telecopy: 914-273-9810
if to the Company:
Planet Hollywood International, Inc.
8669 Commodity Circle
Orlando, Florida 32819
Attention of General Counsel
Telecopy: 407-345-1115
with a copy to:
William J. Whelan, III, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Telecopy: 212-474-3700
11. This letter agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York, without
reference to its choice of law rules; provided, however, that matters of
corporate law
<PAGE>
4
shall be governed by, and construed in accordance with, the general
corporation laws of Delaware.
Each of you and the Company irrevocably and unconditionally
submits to the exclusive jurisdiction of any state or federal court sitting
in the County of New York, over any suit, action or proceeding arising out
of or relating to this letter agreement. Service of any process, summons,
notice or document by registered mail addressed to you or the Company, as
the case may be, shall be effective service of process against such person
for any suit, action or proceeding brought in any such court. Each of you
and the Company irrevocably and unconditionally waives any objection to the
laying of venue of any such suit, action or proceeding brought in any such
court and any claim that any such suit, action or proceeding has been
brought in an inconvenient forum. A final judgment in any such suit, action
or proceeding brought in any such court may be enforced in any other courts
to whose jurisdiction you or the Company, as the case may be, is or may be
subject, by suit upon judgment.
12. All references herein or in the Annexes hereto to this letter
agreement shall be deemed to include this letter agreement and the Annexes
hereto, which are hereby incorporated herein and made a part hereof. This
letter agreement contains the entire agreement between the parties relating
to the subject matter hereof and supersedes all oral statements and prior
writings with respect thereto. This letter agreement may not be amended or
modified except by a writing executed by each of the parties hereto. This
letter agreement is solely for the benefit of you and the Company and our
respective successors, heirs or personal representatives, and no other
person (except for Released Persons, as set forth in Annexes B-1 and B-2
hereto, and for Indemnified Parties, to the extent set forth in Annex C
hereto) shall acquire or have any rights under or by virtue of this letter
agreement. The agreements and obligations of a party in this letter
agreement shall bind its successors, heirs and personal representatives.
If any term, provision, covenant or restriction in this letter
agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable or against public policy, the remainder of the terms,
provisions, covenants and restrictions contained herein shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated. Each of the parties hereto shall endeavor in good faith
negotiations to replace the invalid, void or unenforceable provisions with
valid provisions the
<PAGE>
5 effect of which comes as close as possible to that of the invalid, void
or unenforceable provisions.
This letter agreement may be executed in counterparts, each of
which will be deemed an original, but all of which taken together will
constitute one and the same instrument.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance of the terms hereof by signing in the appropriate
space below and returning to us the enclosed duplicate original hereof,
whereupon this letter shall become an effective, binding agreement between
us.
Very truly yours,
PLANET HOLLYWOOD
INTERNATIONAL, INC.,
By:
-----------------------------
Name:
Title:
Accepted and agreed to
as of the date first
written above,
- ----------------------------
Keith Barish
<PAGE>
ANNEX A
November 6, 1998
To The Board of Directors of Planet Hollywood International, Inc.
Gentlemen:
It has been my great pleasure over the last eight years to have served as
Chairman of the Board of Directors of Planet Hollywood International, Inc.
With the recent addition of William H. Baumhauer as President and Chief
Operating Officer, it is timely for me to step down as Chairman.
Accordingly, I am tendering my resignation as Chairman of the Board of
Directors of the Company effective November 10, 1998.
I shall continue to serve the Company as a member of the Board of Directors
and I look forward to seeing all of you at our December 3, 1998 meeting.
Thank you.
Sincerely,
Keith Barish
<PAGE>
Annex B-1
RELEASE
For valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Keith Barish ("Barish"), on behalf of himself, his
successors, assigns, affiliates, personal representatives and heirs, waives
and releases any and all existing and potential claims or causes of action,
actions, complaints and suits (collectively, "claims"), at law or in
equity, known or unknown, that each or all of them has, have, or may have
against, Planet Hollywood International, Inc., a Delaware corporation (the
"Company"), and its predecessors, successors, assigns, affiliates,
subsidiaries, each of their directors, officers, employees, shareholders
and attorneys, including Robert Earl (both in his individual capacity and
in his capacity as President, Chief Executive Officer and Director of the
Company) (collectively, the "Released Persons"), from the beginning of time
until the effectiveness of the letter agreement, dated November 6, 1998,
between Barish and the Company.
IN WITNESS WHEREOF, the undersigned has duly executed this
instrument as of the 6th day of November, 1998.
-----------------------------
Keith Barish
<PAGE>
Annex B-2
RELEASE
For valuable consideration, the receipt and adequacy of which are
hereby acknowledged, each of Planet Hollywood International, Inc., a
Delaware corporation (the "Company") and Robert Earl, on behalf of
themselves, their successors, assigns, affiliates, personal representatives
and heirs, waives and releases any and all existing and potential claims or
causes of action, actions, complaints and suits (collectively, "claims"),
at law or in equity, known or unknown, that each or all of them has, have,
or may have against Keith Barish ("Barish") (in his individual capacity, in
his capacity as Chairman of the Board of Directors of the Company and in
his capacity as a Director of the Company) and his successors, assigns,
affiliates, personal representatives, heirs, each of their directors,
officers, employees, shareholders and attorneys (collectively, the
"Released Persons"), from the beginning of time until the effectiveness of
the letter agreement, dated November 6, 1998, between Barish and the
Company.
IN WITNESS WHEREOF, each of the undersigned has duly executed
this instrument as of the 6th day of November, 1998.
PLANET HOLLYWOOD INTERNATIONAL, INC.
By:
-------------------------------
Name:
Title:
-------------------------------
Robert Earl
<PAGE>
Annex C
REGISTRATION RIGHTS AGREEMENT
November 6, 1998
Mr. Keith Barish
One Central Park West
New York, NY 10023
Dear Mr. Barish:
This Registration Rights Agreement is by and between Planet
Hollywood International, Inc., a Delaware corporation (the "Company"), and
Keith Barish (the "Seller"). This Agreement provides for the registration
rights of the Seller in up to 10,000,000 shares (the "Shares") of the
Company's Class A Common Stock, par value $.01 per share ("Class A Common
Stock") beneficially owned by the Seller. As of the date hereof, the Seller
beneficially owns 22,075,563 shares of Class A Common Stock. The Company
agrees with the Seller, for the benefit of the Seller or its permitted
successors in interest (together, the "Holders"), as follows:
1. Shelf Registration.
(a) The Company shall, at its cost, as promptly as
practicable (but in no event later than December 4 , 1998) file
with the Securities and Exchange Commission (the "Commission")
and thereafter shall use its best efforts to cause to be declared
effective as promptly as practicable a registration statement
(the "Shelf Registration Statement") on an appropriate form under
the Securities Act of 1933 (the "Securities Act") relating to the
offer and sale of 10,000,000 of the Shares by the Holders thereof
from time to time in accordance with the methods of distribution
described in Section 2(b) and Rule 415 under the Securities Act
(such a registration hereinafter referred to as the "Shelf
Registration"); provided, however, that no Holder (other than the
Seller) shall be entitled to have the Shares held by it covered
by the Shelf Registration Statement unless such Holder agrees in
writing to be bound by all the provisions of this Agreement
applicable to such Holder.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit
the prospectus included therein to be lawfully delivered by the
Holders of the relevant Shares, for a period of two years (or for
such longer period if extended pursuant to Section 2(i) or 2(n)
below) from the date of its effectiveness or such shorter period
that will terminate when all the Shares covered by the Shelf
Registration Statement have been sold pursuant thereto; provided,
however, that in the event that any Holder shall have failed to
comply in any material respect with the methods of distribution
described in Section 2(b), the Company shall be entitled to
withdraw the Shelf Registration Statement such that the Holders
would no longer be entitled to sell Shares thereunder.
(c) Notwithstanding any other provisions of this Agreement
to the contrary, the Company shall cause the Shelf Registration
Statement and the related prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf
Registration Statement, amendment or supplement, (i) to comply in
all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission
and (ii) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
2. Registration Procedures. In connection with the Shelf
Registration contemplated by Section 1 hereof, the following provisions
shall apply:
(a) The Company shall (i) furnish to the Seller, a
reasonable period of time prior to the filing thereof with the
Commission, a copy of the Shelf Registration Statement and each
amendment thereof and each supplement, if any, to the prospectus
included therein and give the Seller a
<PAGE>
2
reasonable opportunity to comment thereon, and (ii) include the
names of the Holders who propose to sell Shares pursuant to the
Shelf Registration Statement as selling securityholders. The
Company will also prepare and file a prospectus supplement or (if
required) an amendment to the Shelf Registration Statement
(including a post-effective amendment) to add as selling
securityholders any Holder that becomes a Holder after the Shelf
Registration Statement is initially filed.
(b) Holders shall dispose of Shares pursuant to the Shelf
Registration Statement only in privately negotiated transactions
of at least 1,000,000 shares per transaction with purchasers who
are identified by the selling Holder to the Company in advance of
such disposition as set forth below and only to a purchaser who
shall be a Permitted Transferee (as defined below). The Company
shall in good faith use its commercially reasonable efforts to
identify prospective purchasers for the Shares, including, as
soon as practicable, approaching the Company's current largest
stockholders to ascertain their interest in acquiring some or all
of the Shares from the Holders. At the request of a Holder who
has identified a prospective purchaser of Shares, the Company
shall cause its Chief Executive Officer or Chief Operating
Officer to be available on reasonable advance notice and at
reasonable times to meet with representatives of such Holder and
such identified purchaser to discuss the Company's business and
prospects. A "Permitted Transferee" shall mean any "accredited
investor" of the type described in Rule 501(a)(1) (other than a
broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934 (the "Exchange Act")), (2), (3)
or (7) that is approved in writing in advance by the Company's
Chief Operating Officer as set forth below, other than (i) a
person who is primarily engaged in a business that is directly
competitive with any of the businesses of the Company and (ii) a
person who, after giving effect to such prospective purchase of
Shares, would beneficially own more than 30% of the Company's
then outstanding voting common stock. Notwithstanding the
foregoing definition, nothing in this Section 2(b) shall preclude
a Holder from utilizing the services of a broker or dealer
registered pursuant to Section 15 of the Exchange Act to
facilitate the disposition of Shares to a Permitted Transferee.
In connection with any proposed disposition of Shares by a Holder
pursuant to the Shelf Registration Statement, such Holder shall
notify the Company on any Business Day in a writing (which may be
by facsimile) addressed to the Company's Chief Operating Officer
and the Company's General Counsel of the identification of the
proposed purchaser and the number of shares involved in the
proposed transaction, provided, however, that if the proposed
disposition of Shares is to a purchaser listed on Annex A
attached hereto, as such Annex may from time to time be amended
by the parties, such proposed purchaser shall automatically be
deemed to be approved by the Chief Operating Officer with no
notice required to be given by the Holder to the Company's Chief
Operating Officer and General Counsel. The Company's Chief
Operating Officer, acting in good faith, shall notify such Holder
not later than the close of business (New York time) on the
Business Day next succeeding the day on which notice is duly
given to the Company, whether such proposed purchaser is
approved, and if not approved, setting forth the reasonable basis
upon which approval was withheld. Failure to so notify within the
required time period shall constitute the approval of such
proposed purchaser. If the Company's Chief Operating Officer
shall have disapproved of a total of two separate proposed
purchasers (that otherwise meet the criteria for a Permitted
Transferee), the Seller shall have the unilateral right, by
giving written notice to the Company, to immediately terminate
this Agreement and the Lock-up Letter, dated November 6, 1998,
between the Company and the Seller (which will entitle the
Company to withdraw the Shelf Registration Statement), whereupon
the Seller shall be entitled to dispose of any shares of Common
Stock in any manner otherwise permitted by applicable law.
(c) The Company shall give written notice to the Seller and
any other Holders (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend the use
of the prospectus until the requisite changes have been made):
(i) when the Shelf Registration Statement or any
amendment thereto has been filed with the Commission and
when the Shelf Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the
prospectus included therein or for additional information;
<PAGE>
3
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company or its legal counsel
of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or
the initiation or threatening of any proceeding for such
purpose; and
(v) of the happening of any event that requires the
Company to make changes in the Shelf Registration Statement
or the prospectus in order that neither the Shelf
Registration Statement nor the prospectus contained therein
contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they
were made) not misleading.
(d) The Company shall use its best efforts to obtain the
withdrawal at the earliest possible time of any order suspending
the effectiveness of the Shelf Registration Statement.
(e) The Company shall furnish to each Holder of Shares
included within the coverage of the Shelf Registration, without
charge, at least one copy of the Shelf Registration Statement and
any post-effective amendment thereto, including financial
statements and schedules, and all exhibits thereto (including, if
the Holder so requests in writing, those, if any, incorporated by
reference).
(f) The Company shall, during the Shelf Registration period
set forth in Section 1(b), deliver to each Holder of Shares
included within the coverage of the Shelf Registration, without
charge, as many copies of the prospectus (including each
preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person
may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of
the Shares in connection with the offering and sale of the Shares
covered by the prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement.
(g) Prior to any public offering of the Shares pursuant to
the Shelf Registration Statement the Company shall use its best
efforts to (A) register or qualify the Shares to be included in
the Shelf Registration Statement under such other securities laws
or blue sky laws of such jurisdictions as the Holder shall
reasonably request in writing, (B) keep such registrations or
qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein in
such jurisdictions for so long as may be reasonably necessary to
enable such Holder to complete its distribution of the Shares
pursuant to the Shelf Registration Statement and (C) take any and
all such actions as may be reasonably necessary to enable such
Holder to consummate the disposition in such jurisdictions of
such Shares; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any
action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so subject.
(h) The Company shall prepare and deliver certificates
representing the Shares to be sold pursuant to the Shelf
Registration Statement free of any restrictive legends and in
such denominations and registered in such names as the Holders
may request a reasonable period of time prior to sales of the
Shares pursuant to the Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 2(c) above during the
period for which the Company is required to maintain an effective
Shelf Registration Statement, the Company shall promptly prepare
and file a post-effective amendment to the Shelf Registration
Statement or a supplement to the related prospectus and any other
required document so that, as thereafter delivered to Holders of
the Shares or purchasers of Shares, the prospectus will not
contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Company notifies the
Seller and any other Holder in accordance with paragraphs (ii)
through (v) of Section 2(c) above to suspend
<PAGE>
4
the use of the prospectus until the requisite changes to the
prospectus have been made, then the Seller and such Holders shall
suspend use of such prospectus, and the period of effectiveness
of the Shelf Registration Statement provided for in Section 1(b)
above shall be extended by the number of days from and including
the date of the giving of such notice to and including the date
when the Seller and such Holders shall have received such amended
or supplemented prospectus pursuant to this Section 2(i).
(j) The Company will comply with all rules and regulations
of the Commission to the extent and so long as they are
applicable to the Shelf Registration and will make generally
available to its security holders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) an earnings
statement satisfying the provisions of Section 11(a) of the
Securities Act, no later than 45 days after the end of a 12-month
period (or 90 days, if such period is a fiscal year) beginning
with the first month of the Company's first fiscal quarter
commencing after the effective date of the Shelf Registration
Statement, which statement shall cover such 12-month period.
(k) The Company shall include in the Shelf Registration
Statement or any prospectus, prospectus supplement or
post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as a
Holder or agents or underwriters of a Holder may reasonably
specify should be included therein relating to the terms of the
sale of the Shares included thereunder, including information
with respect to the number of Shares being sold by such Holder or
agents or to such underwriters, the name and description of such
Holder, the offering price of such Shares and any discount,
commission or other compensation payable in respect thereof, the
purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Shares to be
sole in such offering; and make all required filings of such
prospectus, prospectus supplement or post-effective amendment
promptly after notification of the matters to be incorporated in
such prospectus, prospectus supplement or post-effective
amendment.
(l) The Company may require each Holder of Shares to be sold
pursuant to the Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the
distribution of the Shares as is reasonably required to be
included in the Shelf Registration Statement, and the Company may
exclude from the Shelf Registration Statement the Shares of any
Holder for so long as such Holder fails to furnish such
information.
(m) The Company shall (i) upon the written request of the
Seller, make reasonably available for inspection by the Holders
of the Shares and any attorney, accountant or other agent
retained by the Holders of the Shares all relevant financial and
other records, pertinent corporate documents and properties of
the Company and (ii) cause the Company's officers, directors,
employees, accountants and auditors to supply all relevant
information reasonably requested in writing by the Seller or any
such attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably
necessary to enable such persons to conduct a reasonable
investigation within the meaning of Section 11 of the Securities
Act; provided, however, that the foregoing inspection and
information gathering shall be subject to reasonable
confidentiality restrictions and shall be coordinated on behalf
of the Holders of the Shares by one counsel designated by and on
behalf of such parties as described in Section 3 hereof.
(n) In connection with any underwritten sale of shares of
Class A Common Stock by the Company, the Seller and each Holder
shall, at the written request of the managing underwriter for
such sale (which request may only be made once in any 12-month
period), agree not to effect any public or private sale or
distribution of Shares, including pursuant to the Shelf
Registration Statement, during the 15-day period prior to, and
during the 45-day period beginning on, the closing date of such
underwritten offering by the Company. In the event a managing
underwriter, pursuant to this subsection, requests that the
Seller and each Holder agree not to effect any public or private
sale or distribution of Shares for the periods specified
hereunder, the Company hereby agrees that the period of
effectiveness of the Shelf Registration Statement provided for in
Section 1(b) above shall be extended by the number of days that
the Seller and each Holder agree not to effect any sale or
distribution.
<PAGE>
5
3. Registration Expenses. Each of the Company, Seller and any
Holder shall bear all legal expenses incurred by it in connection with the
exercise of its rights or the performance of its obligations under Sections
1 and 2 hereof, whether or not the Shelf Registration Statement is filed or
becomes effective. Without limiting the generality of the foregoing, the
Company shall bear all legal and accounting expenses incurred by its
counsel and accountants, and the Holders shall bear all legal expenses
incurred by counsel engaged to act on their behalf. The Company shall be
responsible for the payment of all state and Federal fees payable in
connection with the registration of the Shares. All underwriting fees or
discounts and any other brokerage commission incurred in connection with
the sale of the Shares pursuant to the Shelf Registration shall be the sole
responsibility of the Holders of such Shares.
4. Additional Registration Rights. (a) If, at any time after the
date of this Agreement, the Company proposes to register any of its common
stock under the Securities Act on a registration statement on Form S-1,
Form S-2 or Form S-3 ( or an equivalent general registration form then in
effect) for purposes of an underwritten offering or sale by or on behalf of
the Company of common stock for its own account (a "primary offering") or
upon the request or for the account of any holder (a "Registering
Shareholder") of common stock (a "secondary offering"), or for purposes of
a combined primary and secondary offering (a "Combined offering"), then in
each such case the Company shall, either prior to or not later than 15 days
after the time when any such registration statement is filed with the
Commission, request the managing underwriter for such offering whether any
or all the Shares held by Holders could be included in such offering
without adversely affecting the marketing of the Company's intended
offering. If the managing underwriter indicates that some or all the Shares
could be so included, then the Company will promptly give written notice
thereof to each Holder of Shares. Such notice shall specify, at a minimum,
the estimated effective date of such registration statement, the proposed
means of distribution of such shares, the managing underwriter or
underwriters of such shares and a good faith estimate by the Company of the
proposed maximum offering price thereof, as such price appears, or is
proposed to appear, on the facing page of such registration statement. Upon
the written direction of any such Holder of Shares, given within 10 days of
the receipt by such Holder of any such written notice (which direction
shall specify that such Holder would like to include its pro rata number of
Shares (based on the total number of Shares that the Holders are entitled
to include in such offering) in such offering), the Company shall include
in such registration statement all of such pro rata Shares then owned by
such Holder. The expenses of counsel incurred by any such Holder, and any
underwriters discounts or commissions, shall be for the account of such
Holder. Any such Holder shall have the right to withdraw such direction by
giving written notice to the Company to such effect within 5 days after
giving such direction. Notwithstanding the foregoing, no Holder of Shares
shall have any right hereunder if the registration proposed to be effected
by the Company relates solely to shares of common stock which are issuable
solely to directors, officers, employees, celebrities and consultants of
the Company or any subsidiary thereof pursuant to a bona fide employee
stock option, bonus or other employee benefit plan or arrangement.
5. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder of the Shares and each person, if any, who controls
such Holder within the meaning of the Securities Act or the Exchange Act
and each person, if any, that acts as an agent for a Holder in facilitating
a disposition of Shares pursuant to the Shelf Registration Statement (each
Holder and such controlling and other persons are referred to collectively
as the "Indemnified Parties") from and against any losses, claims, damages
or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Shares) to which each
Indemnified Party may become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Shelf Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration, in any document
incorporated by reference into the foregoing, or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse, as incurred, the Indemnified Parties
for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action in respect thereof; provided, however, that (i) the Company shall
not be liable in any such case to the extent that such loss, claim, damage
or liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in the Shelf
Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to the Shelf Registration
or in any document incorporated by reference into the foregoing, in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by
<PAGE>
6
or on behalf of such Holder specifically for inclusion therein and (ii)
with respect to any untrue statement or omission or alleged untrue
statement or omission made in any prospectus, or any amendment or
supplement thereto, or any preliminary prospectus relating to the Shelf
Registration Statement or in any document incorporated by reference into
the foregoing, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Holder from whom the person asserting
any such losses, claims, damages or liabilities purchased the Shares
concerned to the extent that either (x) a prospectus relating to such
Shares was required to be delivered by such Holder under the Securities Act
in connection with such purchase and there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Shares
to such person, a copy of the final prospectus (in the case of any such
preliminary prospectus) or a prospectus amendment or supplement (in any
other case) if the Company had previously furnished copies thereof to such
Holder, and such untrue statement or omission or alleged untrue statement
or omission was corrected in such final prospectus or prospectus amendment
or supplement, or (y) at the time of such purchase such Holder had received
advice from the Company that the use of such prospectus, amendment,
supplement or preliminary prospectus was suspended as provided in Section
2(c); provided further, however, that this indemnity agreement will be in
addition to any liability which the Company may otherwise have to such
Indemnified Party.
(b) Each Holder of the Shares, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities or
any actions in respect thereof, to which the Company or any such
controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to the Shelf
Registration, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder
specifically for inclusion therein; and, subject to the limitation set
forth immediately preceding this clause, shall reimburse, as incurred, the
Company for any legal or other expenses reasonably incurred by the Company
or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof.
This indemnity agreement will be in addition to any liability which such
Holder may otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 5, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not, in any
event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in
connection with the defense thereof; provided, however, that if the
indemnifying party is a party to such action and the indemnified party
reasonably determines that the interests of the indemnified party and the
indemnifying party conflict with respect to such action, then the
indemnified party shall have the right to representation by separate
counsel at the expense of the indemnifying party. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
<PAGE>
7
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other
from the registration, offer and sale of the Shares pursuant to the Shelf
Registration Statement, or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties
on the one hand and the indemnified party on the other in connection with
the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative fault of the parties shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or such Holder or such other indemnified party, as
the case may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding any other provision of this Section 5(d),
the Holders of the Shares shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holders
from the sale of the Shares pursuant to the Shelf Registration Statement
exceeds the amount of damages which such Holders have otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this paragraph (d),
each person, if any, who controls such indemnified party within the meaning
of the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the
sale of the Shares pursuant to the Shelf Registration Statement and shall
remain in full force and effect, regardless of any termination or
cancelation of this Agreement or any investigation made by or on behalf of
any indemnified party.
6. Miscellaneous. (a) This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York,
without reference to its choice of law rules.
(b) Each Holder and the Company irrevocably and
unconditionally submits to the exclusive jurisdiction of any state or
federal court sitting in the County of New York over any suit, action or
proceeding arising out of or relating to this Agreement. Service of any
process, summons, notice or document by registered mail addressed to a
Holder or the Company, as the case may be, shall be effective service of
process against such person for any suit, action or proceeding brought in
any such court. Each Holder and the Company irrevocably and unconditionally
waives any objection to the laying of venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit,
action or proceeding has been brought in an inconvenient forum. A final
judgment in any such suit, action or proceeding brought in any such court
may be enforced in any other courts to whose jurisdiction such Holder or
the Company, as the case may be, is or may be subject, by suit upon
judgment. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
(c) Any notice or communication pursuant to this Agreement
shall be in writing and delivered in person or telecopied (with telephonic
confirmation) or delivered by overnight courier, addressed as follows:
If to a Holder (other than the Seller), at the most
current address given by such Holder to the Company.
if to the Seller:
<PAGE>
8
Mr. Keith Barish
One Central Park West
New York, NY 10023
Telecopy: 212-957-3915
with a copy to:
Robert Silver, Esq.
Christopher Boies, Esq.
Boies & Schiller LLP
80 Business Park Drive
Armonk, NY 10504
Telecopy: 914-273-9810
if to the Company:
Planet Hollywood International, Inc.
8669 Commodity Circle
Orlando, Florida 32819
Attention of General Counsel
Telecopy: 407-345-1115
with a copy to:
William J. Whelan, III, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Telecopy: 212-474-3700
(d) This Agreement contains the entire agreement between the
parties relating to the subject matter hereof and supersedes all oral
statements and prior writings with respect thereto. This Agreement may not
be amended or modified except by a writing executed by the Company and
Holders of a majority of the Shares subject to the Shelf Registration
Statement. This Agreement is solely for the benefit of the Holders and the
Company and their respective successors, heirs or personal representatives,
and no other person (except for Indemnified Parties) shall acquire or have
any rights under or by virtue of this Agreement. The agreements and
obligations of a party in this Agreement shall bind its successors, heirs
and personal representatives.
(e) If any term, provision, covenant or restriction in this
Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable or against public policy, the remainder of the terms,
provisions, covenants and restrictions contained herein shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated. Each Holder and the Company shall endeavor in good faith
negotiations to replace the invalid, void or unenforceable provisions with
valid provisions the effect of which comes as close as possible to that of
the invalid, void or unenforceable provisions.
(f) This Agreement may be executed in counterparts, each of
which will be deemed an original, but all of which taken together will
constitute one and the same instrument.
<PAGE>
9
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a
binding agreement between the Seller and the Company in accordance with its
terms.
Very truly yours,
PLANET HOLLYWOOD INTERNATIONAL, INC.
by
-----------------------------
Name:
Title:
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
- ------------------------------------
Keith Barish
<PAGE>
10
ANNEX A
List of Approved Purchasers
FIDELITY
T. ROWE
NEUBERGER
LIPPER & CO.
OSCAR CAPITAL
DREYFUSS
DAWSON
FRANKLIN
SPEARS BENZAK
OPPENHEIMER CAPITAL
KRAMER
JOHN HANCOCK
MERRILL (Various Managed Funds)
HEARTLAND
GOLDMAN SACHS (Various Funds)
TCW NY
CAPITAL RESEARCH
TUTOR
BAIN CAPITAL
BROOK ASSET MANAGEMENT
ALLIANCE CAPITAL MANAGEMENT
<PAGE>
11
FEYEZ SAROFIM & CO.
GABRELLI FUNDS INC.
PUTNUM INVESTMENTS
WARBURG PINCUS ASSET MANAGEMENT
CHASE CAPITAL PARTNERS
LAZARD FRERES & CO.
CENTER PARTNERS MANAGEMENT
STATE OF WISCONSIN
OR
ANY STATE FUND (PENSION, RETIREMENT ETC.)
CHELSEY CAPITAL
PACIFIC HOLDING CO.
MARTIZ, WOLF & CO.
GARTMORE-LONDON
SOCIETE GENERALE-PARIS
ADIG-FRANKFURT
SUMITOMO BANK & TRUST-TOKYO
SWISS BANK-GENEVA
BRITANNIA-LONDON
<PAGE>
Annex D
November 6, 1998
Planet Hollywood International, Inc.
8669 Commodity Circle
Orlando, Florida 32819
Dear Sirs:
As an inducement to Planet Hollywood International,
Inc., a Delaware corporation (the "Company"), to execute a
letter agreement of even date herewith between the
undersigned and the Company (the "Letter Agreement"), the
undersigned hereby agrees that, until May 4, 2000, the
undersigned will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly (collectively,
"transfer"), any shares of common stock of the Company (the
"Common Stock") owned or held of record by the undersigned as
of the date hereof or securities convertible into or
exchangeable or exercisable for any shares of Common Stock,
or publicly disclose the intention to make any such transfer,
without the prior written consent of the Company; provided,
however, that:
(i) the restriction in this agreement shall not
apply to the transfer of, and the undersigned shall be
entitled to transfer, any and all shares of Common Stock
included in any registration statement filed with and
declared effective by the Securities and Exchange
Commission pursuant to and in compliance with the terms
of the Registration Rights Agreement (as defined in the
Letter Agreement);
(ii) if the Shelf Registration Statement (as
defined in the Registration Rights Agreement of even
date herewith between the Company and the undersigned
(the "Registration Rights Agreement")) is not declared
effective by the Securities and Exchange Commission on
or before such date as the Company publicly announces
its earnings results through September 30, 1998 (which
announcement date is expected to be on or before
November 11, 1998), then the restriction in this
agreement shall not apply to the transfer of, and the
undersigned shall be entitled to transfer, in one
transaction, any and all shares of Common Stock in
reliance on the exemption from the registration
requirements of the Securities Act provided by Rule 144
(a "144 Transaction"); provided, however, that (A) such
144 Transaction shall be effected only in the manner
described in Section 2(b) of the Registration Rights
Agreement, including obtaining the prior approval in
<PAGE>
2
writing by the Company's Chief Operating Officer of any
prospective purchaser, and shall be made only in
compliance with the internal rules of the Company
concerning the sale of Common Stock by affiliates;
provided, however, that in the event the volume
restrictions imposed on the undersigned pursuant to a
144 Transaction require the undersigned to sell a block
with less than 1,000,000 shares, the undersigned shall
be entitled to sell such smaller amount notwithstanding
any provision herein or in the Registration Rights
Agreement to the contrary; and provided, further, that
any rejection by the Chief Operating Officer of any
prospective purchaser hereunder shall count toward the
maximum number of rejections allowed before the
undersigned's termination rights are triggered pursuant
to Section 2(b) of the Registration Rights Agreement and
(B) the right of the undersigned to undertake such a 144
Transaction shall expire upon the effectiveness of the
Initial Shelf Registration Statement; and
(iii) the restriction in this agreement shall not
apply to the transfer of, and the undersigned shall be
entitled to transfer, any and all shares of Common Stock
to any Permitted Transferee (as defined in the
Registration Rights Agreement except for the purposes of
this clause (iii), the term Permitted Transferee shall
also include an "accredited investor" of the type
described in Rule 501(a)(4), (5) and (6) as well) who
shall, prior to such transfer, execute and deliver to
the Company an agreement in form and substance similar
to this agreement in all material respects; provided,
however, that the undersigned shall not be required to
obtain the approval of the Company's Chief Operating
Officer prior to such transfer.
In furtherance of the foregoing, the undersigned
acknowledges that the Company will authorize its transfer
agent and registrar to decline to make any transfer of shares
of Common Stock if such transfer would constitute a violation
or breach of this agreement.
By agreeing to and accepting this letter, you agree
that when the restrictions contained in this letter have
expired and when you have received an opinion of counsel
(which counsel shall be reasonably acceptable to you) to the
effect that the shares represented by such certificates may
be transferred without registration under the Securities Act
of 1933, you shall remove or cause your transfer agent to
remove all restrictive legends from any certificates
representing shares of Common Stock that are held by the
undersigned at the time of this letter.
<PAGE>
3
By agreeing to and accepting this letter, you also
agree that you will file any reports you are required to file
under the Exchange Act so as to enable the undersigned (or
any transferee of the undersigned permitted by this letter),
subject to the restrictions in this letter, to sell shares of
Common Stock without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144
under the Securities Act (as such Rule may be amended from
time to time), and that you will continue to file such
reports until restrictive legends are removed from all shares
of Common Stock held by the undersigned on the date of this
letter.
Notwithstanding any provision to the contrary, you
and the undersigned agree that as set forth in the
Registration Rights Agreement, the undersigned shall have the
unilateral right to terminate this letter agreement, which
termination shall be immediately effective upon delivery of
the notice contemplated in Section 2(b) of the Registration
Rights Agreement.
This agreement shall be binding on you and the
undersigned and the respective successors, heirs, personal
representatives and assigns of you and the undersigned.
Very truly yours,
---------------------------------
Keith Barish
Agreed and accepted:
PLANET HOLLYWOOD
INTERNATIONAL, INC.
By:
-----------------
Name:
Title:
<PAGE>
Annex E
ORLANDO, FL--PLANET HOLLYWOOD INTERNATIONAL, INC. ANNOUNCED
TODAY THAT EFFECTIVE NOVEMBER 10, 1998, ROBERT EARL, A
DIRECTOR AND THE COMPANY'S CHIEF EXECUTIVE OFFICER, HAS ALSO
BEEN ELECTED CHAIRMAN OF THE BOARD OF DIRECTORS. MR. EARL
SUCCEEDS KEITH BARISH WHO RESIGNED AS CHAIRMAN EFFECTIVE
NOVEMBER 10, 1998. MR. BARISH HAS STATED THAT "WITH THE
RECENT ADDITION OF WILLIAM H. BAUMHAUER AS PRESIDENT AND
CHIEF OPERATING OFFICER, IT IS TIMELY FOR ME TO STEP DOWN AS
CHAIRMAN." MR. BARISH WILL REMAIN A MEMBER OF THE BOARD OF
DIRECTORS.
THE DIRECTORS, ON BEHALF OF THE COMPANY AND ITS DEDICATED
EMPLOYEES, THANK MR. BARISH FOR HIS YEARS OF COMMITTED
SERVICE AS THE COMPANY'S CHAIRMAN AND LOOK FORWARD TO HIS
CONTINUED COUNSEL AS A DIRECTOR OF THE COMPANY.
Planet Hollywood is a creator and worldwide developer of
consumer brands that capitalize on the universal appeal of
movies, sports, music and other leisure-time activities. The
Company's worldwide operations offer products and services in
the retail, leisure, entertainment and lodging sectors.
Planet Hollywood's Class A common stock is listed under the
symbol "PHL" on the New York Stock Exchange.
<PAGE>
December , 1998
Planet Hollywood International, Inc.
8669 Commodity Circle
Orlando, Florida 32819
Dear Sirs:
Reference is made to the Lock-Up Letter dated
November 6, 1998 (the "Letter"), between you and the
undersigned, attached hereto as Exhibit A.
This letter amendment sets forth your and our
agreement to amend the Letter. Accordingly, the Letter is
hereby amended as follows:
Subparagraph (ii) is replaced in its entirety with
the following:
(ii) if the Shelf Registration Statement (as
defined in the Registration Rights Agreement of
even date herewith between the Company and the
undersigned (the "Registration Rights Agreement"))
is not declared effective by the Securities and
Exchange Commission (the "Commission") on or before
such date as the Company publicly announces its
earnings results through September 30, 1998 (which
announcement date is expected to be on or before
November 11, 1998), then the restriction in this
agreement shall not apply to the transfer of, and
the undersigned shall be entitled to transfer, in
one transaction, any and all shares of Common Stock
in reliance on the exemption from the registration
requirements of the Securities Act provided by Rule
144 (a "144 Transaction"); provided, however, that
(A) such 144 Transaction shall be effected only in
the manner described in Section 2(b) of the
Registration Rights Agreement, including obtaining
the prior approval in writing the Company's Chief
Operating Officer of any prospective purchaser, and
shall be made only in compliance with the internal
rules of the Company concerning the sale of Common
Stock by affiliates; provided, however, that in the
event the volume restrictions imposed on the
undersigned pursuant to a 144 Transaction require
the undersigned to sell shares in a block of less
than 1,000,000 shares, the undersigned shall be
entitled to sell such smaller amount
notwithstanding any provision
<PAGE>
herein or in the Registration Rights Agreement to
the contrary; and provided, further, that any
rejection by the Chief Operating Officer of any
prospective purchaser hereunder shall count toward
the maximum number of rejections allowed before the
undersigned's termination rights are triggered
pursuant to Section 2(b) of the Registration Rights
Agreement, and (B) such 144 transaction shall only
be permitted concurrently with or after the sale of
all the shares of Common Stock covered by the
registration statement filed with the Commission
pursuant to the Registration Rights Agreement; and
This amendment may be executed in counterparts,
each of which will be deemed an original, but all of which
taken together will constitute one and the same instrument.
Except as herein amended, the Letter shall
otherwise remain in full force and effect.
This letter amendment shall be governed by, and
construed in accordance with, the internal laws of the State
of New York, without reference to its choice of law rules.
IN WITNESS WHEREOF, each of the undersigned has
duly executed and delivered this letter amendment as of the
14th day of December, 1988.
Very truly yours,
PLANET HOLLYWOOD
INTERNATIONAL, INC.
By
-----------------------
Name:
Title:
- --------------------------
Keith Barish
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
January 12, 1999
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
<PAGE>
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/ Claudio Gonzalez
- -------------------------------
Claudio Gonzalez
Director
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
- -------------------------------
Ong Beng Seng
Director
<PAGE>
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
- -------------------------------
Keith Barish
Director
<PAGE>
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
- -------------------------------
Isadore Sharp
Director
<PAGE>
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
- -------------------------------
Michael Tarnopol
Director
