AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PLANET HOLLYWOOD INTERNATIONAL, INC.
The undersigned, being the President and Chief Executive
Officer of Planet Hollywood International, Inc., a Delaware corporation (the
"Corporation"), originally incorporated in the State of Delaware on December 14,
1994, for the purpose of amending and restating the Certificate of
Incorporation, hereby certifies that the following amended and restated
certificate of incorporation has been duly adopted in accordance with the
provisions of Sections 242, 245 and 303 of the General Corporation Law of the
State of Delaware:
ARTICLE I
Name
The name of the Corporation is PLANET HOLLYWOOD INTERNATIONAL,
INC.
ARTICLE II
Registered Office and Agent
The street address of the registered office of the Corporation
in the State of Delaware is 1013 Centre Road, in the City of Wilmington, County
of New Castle, Delaware 19805.
The name of the registered agent of the Corporation at that
address is Corporation Service Company.
ARTICLE III
Mailing Address
The mailing address of the Corporation is 8669 Commodity
Circle, Orlando, Florida 32819.
ARTICLE IV
Duration
This Corporation shall exist perpetually.
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ARTICLE V
Purpose
The purpose or purposes of the Corporation are:
(1) To conduct any lawful business, to exercise any lawful
purpose and power, and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware; and
(2) In general, to possess and exercise all the powers and
privileges granted by the General Corporation Law of Delaware or any other law
of Delaware or by this Amended and Restated Certificate of Incorporation
together with any power incidental thereto, so far as such powers and privileges
are necessary or convenient to the conduct, promotion or attainment of the
business or purposes of the Corporation.
ARTICLE VI
Capital Stock
SECTION 1. The maximum number of shares of capital stock which
this Corporation shall have authority to issue is Two Hundred Twenty-Five
Million (225,000,000), consisting of One Hundred Million (100,000,000) shares of
Class A Common Stock, $.01 par value, Twenty-Five Million (25,000,000) shares of
Class B Common Stock, $.01 par value, and One Hundred Million (100,000,000)
shares of Preferred Stock, $.01 par value. The Class A Common Stock and the
Class B Common Stock are hereinafter referred to collectively as the "Common
Stock".
Notwithstanding anything to the contrary set forth in this
Article VI, the Corporation shall not issue any non-voting equity securities;
provided, however, that this provision, included in this Amended and Restated
Certificate of Incorporation in compliance with Section 1123(a)(6) of the United
States Bankruptcy Code of 1978, as amended (the "Bankruptcy Code"), shall have
no force and effect beyond that required by Section 1123(a)(6) of the Bankruptcy
Code and shall be effective only for so long as Section 1123(a)(6) of the
Bankruptcy Code is in effect and applicable to the Corporation.
Upon the filing in the Office of the Secretary of State of the
State of Delaware of this Amended and Restated Certificate of Incorporation, the
shares of Class A Common Stock, par value $.01 per share, and the shares of
Class B Common Stock, par value $.01 per share (collectively, the "Old Common
Stock"), of the Corporation issued and outstanding immediately prior to the time
when this Amended and Restated Certificate of Incorporation becomes effective
are hereby automatically canceled and extinguished. Upon the filing in the
Office of the Secretary of State of the State of Delaware of this Amended and
Restated Certificate of Incorporation, each certificate which prior to such
filing evidenced Old Common Stock shall be deemed canceled and extinguished.
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The preferences, qualifications, limitations, restrictions and
the special or relative rights in respect of the shares of each class are as
follows:
SECTION 2. Preferred Stock. The Preferred Stock may be issued
from time to time in one or more series. All shares of Preferred Stock shall be
of equal rank and shall be identical, except in respect of the matters that may
be fixed and determined by the Board of Directors as hereinafter provided, and
each share of each series shall be identical with all other shares of such
series, except as to the date from which dividends are cumulative. The Board of
Directors hereby is authorized to cause such shares to be issued in one or more
classes or series and with respect to each such class or series to fix and
determine the designation, powers, preferences and rights of the shares of each
such series and the qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each
series shall include, but not be limited to, determination of the following:
(1) the number of shares constituting a series, the
distinctive designation of a series and the stated value of a series, if
different from the par value;
(2) whether the shares of a series are entitled to any fixed
or determinable dividends, the dividend rate (if any) on such shares, whether
the dividends are cumulative and the relative rights of priority of dividends on
shares of that series;
(3) whether a series has voting rights in addition to the
voting rights provided by law and the terms and conditions of such voting
rights;
(4) whether a series will have or receive conversion or
exchange privileges and the terms and conditions of such conversion or exchange
privileges;
(5) whether the shares of a series are redeemable and the
terms and conditions of such redemption, including the manner of selecting
shares for redemption if less than all shares are to be redeemed, the date or
dates on or after which the shares in the series will be redeemable and the
amount payable in case of redemption;
(6) whether a series will have a sinking fund for the
redemption or purchase of the shares in the series and the terms and the amount
of such sinking fund;
(7) the right of a series to the benefit of conditions and
restrictions on the creation of indebtedness of the Corporation or any
subsidiary, on the issuance of any additional capital stock (including
additional shares of such series or any other series) on the payment of
dividends or the making of other distributions on any outstanding stock of the
Corporation and the purchase, redemption or other acquisition by the
Corporation, or any subsidiary, of any outstanding stock of the Corporation;
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(8) the rights of a series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation and the
relative rights of priority of payment of a series; and
(9) any other relative, participating, optional or other
special rights, qualifications, limitations or restrictions of such series.
Dividends on outstanding shares of Preferred Stock shall be
paid or set apart for payment before any dividends shall be paid or declared or
set apart for payment on the Common Stock with respect to the same dividend
period.
If upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation the assets available for distribution to
holders of shares of Preferred Stock of all series shall be insufficient to pay
such holders the full preferential amount to which they are entitled, then such
assets shall be distributed ratably among the shares of all series in accordance
with the respective preferential amounts (including unpaid cumulative dividends,
if any, payable with respect thereto).
SECTION 3. Common Stock - General Provisions. The Common Stock
shall be subject to the express terms of the Preferred Stock and any series
thereof. Except as otherwise provided in this Amended and Restated Certificate
of Incorporation or as otherwise required by the Delaware General Corporation
Law, all shares of Class A Common Stock and Class B Common Stock shall be
identical and shall entitle the holders thereof to the same powers, preferences
and rights, and shall be subject to the same qualifications, limitations and
restrictions thereof.
Shares of Common Stock authorized hereby shall not be subject
to preemptive rights. The holders of shares of Common Stock now or hereafter
outstanding shall have no preemptive right to purchase or have offered to them
for purchase any of such authorized but unissued shares, or any shares of
Preferred Stock, Common Stock or other equity securities issued or to be issued
by the Corporation.
Subject to the preferential and other dividend rights
applicable to Preferred Stock, the holders of shares of Common Stock shall be
entitled to receive such dividends (payable in cash, stock or otherwise) as may
be declared on the Common Stock by the Board of Directors at any time or from
time to time out of any funds legally available therefor.
In the event of any voluntary or involuntary liquidation,
distribution or winding up of the Corporation, after distribution in full of the
preferential or other amounts to be distributed to the holders of shares of
Preferred Stock, the holders of shares of Common Stock shall be entitled to
receive all of the remaining assets of the Corporation available for
distribution to its stockholders, ratably in proportion to the number of shares
of Common Stock held by them.
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SECTION 4. Common Stock - Other Provisions.
(a) Voting Rights. Except as prescribed in this Amended and
Restated Certificate of Incorporation or as otherwise required by applicable
law, holders of Class A Common Stock and Class B Common Stock shall vote
together as a single class on all matters submitted to the stockholders for a
vote. With respect to all matters upon which stockholders are entitled to vote,
the holders of outstanding shares of Common Stock shall be entitled to one vote
in person or by proxy for each share of Common Stock standing in the name of
such stockholders on the record of stockholders.
(i) Except as otherwise provided in this Section 4, the
holders of Class B Common Stock shall be entitled, voting separately as a single
class by a plurality of the votes cast, to the exclusion of all other classes of
the Corporation's capital stock, to elect all members of the Corporation's Board
of Directors (the "Class B Directors"). Any one or more of the Class B Directors
may be removed with or without cause only by a vote of the holders of Class B
Common Stock, voting separately as a single class and holding not less than a
majority of the issued and outstanding shares of Class B Common Stock.
(ii) Notwithstanding the provisions of subparagraph (i) above,
after the payment in full of all of the Corporation's obligations under the
Deferrable Interest Notes, the holders of Class A Common Stock shall be
entitled, voting separately as a single class by a plurality of the votes cast,
to the exclusion of all other classes of the Corporation's capital stock, to
elect two (2) directors to serve on the Corporation's Board of Directors (the
"Class A Directors"). Any one or more of the Class A Directors may be removed
with or without cause only by a vote of the holders of Class A Common Stock,
voting separately as a single class and holding not less than a majority of the
issued and outstanding shares of Class A Common Stock.
(iii) At such time when there shall be no shares of Class B
Common Stock issued and outstanding, the holders of Class A Common Stock shall
be entitled to elect all members of the Corporation's Board of Directors.
Directors so elected by the holders of Class A Common Stock may be removed only
with cause by a vote of the holders of not less than a majority of the issued
and outstanding shares of Class A Common Stock.
(iv) In addition to any other vote that may be required by the
Delaware General Corporation Law or this Amended and Restated Certificate of
Incorporation, the vote or consent of the holders of any class of Common Stock
voting separately as a single class shall be required to amend or restate this
Amended and Restated Certificate of Incorporation in a manner that would alter
or change the powers, preferences or special rights of such class of Common
Stock, so as to affect them adversely.
(b) Dividends and Distributions. Except as otherwise provided
in this Amended and Restated Certificate of Incorporation, holders of Common
Stock shall be entitled to such dividends and other distributions in cash, stock
or property of the Corporation as may be declared thereon by the Board of
Directors from time to time out of assets or funds of the
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Corporation legally available therefor; provided, however, that in no event may
the rate of any dividend payable on outstanding shares of any class of Common
Stock be greater than the dividend rate payable on outstanding shares of the
other class of Common Stock. All dividends and distributions on the Class A
Common Stock payable in stock of the Corporation shall be made in shares of
Class A Common Stock, and all dividends and distributions on the Class B Common
Stock payable in stock of the Corporation shall be made at the same dividend
rate per share in shares of Class B Common Stock. In no event will shares of any
class of Common Stock be split, divided or combined unless the outstanding
shares of the other class of Common Stock shall be proportionately split,
divided or combined.
(c) Options, Rights or Warrants. The Corporation may make
offerings of options, rights or warrants to subscribe for shares of either class
of capital stock to all holders of one class of Common Stock if an identical
offering is made simultaneously to all the holders of the other class. All such
offerings of options, rights or warrants shall offer the respective holders of
Class A Common Stock and Class B Common Stock the right to subscribe at the same
rate per share.
SECTION 5. Conversion of Class B Common Stock.
(a) Automatic Conversion.
(i) Upon the transfer of shares of Class B Common Stock (other
than a transfer to a New Money Investor or an affiliate of a New Money
Investor), such shares of Class B Common Stock shall automatically convert into
an equal number of shares of Class A Common Stock.
(ii) In the event that all issued and outstanding shares of
Class B Common Stock constitute 10% or less of all issued and outstanding shares
of Common Stock, all issued and outstanding shares of Class B Common Stock shall
automatically convert into an equal number of shares of Class A Common Stock.
(iii) Upon the occurrence of any event set forth in clauses
(i) and (ii) above (each an "Automatic Conversion"), the conversion of the Class
B Common Stock affected thereby shall be effective without any further action on
the part of the Corporation or the holder or holders of Class B Common Stock.
Stock certificates formerly representing shares of Class B Common Stock held by
(A) the transferee of Class B Common Stock in the case of clause (i) above, or
(B) the record holders of then outstanding shares of Class B Common Stock in the
case of clause (ii) above, shall thereupon and thereafter be deemed to represent
a number of shares of Class A Common Stock equal to the number of shares of
Class B Common Stock represented by such certificates. Each holder of shares of
Class B Common Stock shall to deliver to the Corporation or any transfer agent
for shares of Class A Common Stock the certificates representing shares of Class
B Common Stock subject to Automatic Conversion, but the failure to deliver such
certificates shall not affect the validity of such Automatic Conversion. As
promptly as practicable after such surrender, the Corporation or its transfer
agent will deliver to, or upon the written order of, such holder, a certificate
or certificates representing the number of shares of Class A Common Stock
issuable upon such Automatic Conversion. The Board Directors of the
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Corporation shall have all power and authority necessary or advisable to
implement the provisions of this Section.
(b) Voluntary Conversion. All shares of Class B Common Stock
shall be convertible, at the option of the record holders of such shares, into
an equal number of validly issued, fully paid and nonassessable shares of Class
A Common Stock at any time after payment in full of the Deferrable Interest
Notes; provided that such optional conversion must include all then outstanding
shares of Class B Common Stock.
(c) Voluntary Conversion Procedure. At the time of the
voluntary conversion, if any, the record holders of the Class B Common Stock
shall deliver to the principal office of the Corporation or any transfer agent
for shares of the Class A Common Stock (i) the certificate or certificates
representing in the aggregate all shares of Class B Common Stock, duly endorsed
in blank or accompanied by proper instruments of transfer and (ii) written
notice to the Corporation stating that the record holders elect to convert all
outstanding shares of Class B Common Stock and stating the name or names (with
addresses) and denominations in which the certificate or certificates
representing the shares of Class A Common Stock issuable upon such conversion
are to be issued and including instructions for the delivery thereof. Conversion
shall be deemed to have been effected at the time when delivery is made to the
Corporation or its transfer agent of such written notice and the certificate or
certificates representing all outstanding shares of Class B Common Stock, and as
of such time each person named in such written notice as the person to whom a
certificate representing shares of Class A Common Stock is to be issued shall be
deemed to be the holder of record of the number of shares of Class A Common
Stock to be evidenced by that certificate. Upon such delivery, the Corporation
or its transfer agent shall promptly issue and deliver at such stated address to
such record holder of shares of Class A Common Stock a certificate or
certificates representing the number of shares of Class A Common Stock to which
such record holder is entitled by reason of such conversion, and shall cause
such shares of Class A Common Stock to be registered in the name of such record
holder.
(d) Reclassifications. In the event of a reclassification or
other similar transaction as a result of which the shares of Class A Common
Stock are converted into another security, then the holders of Class B Common
Stock shall be entitled to receive upon conversion the amount of such security
that such holders would have received if such conversion had occurred
immediately prior to the record date of such reclassification or other similar
transaction.
(e) Retired Shares. Shares of Class B Common Stock that are
converted into shares of Class A Common Stock as provided herein shall be
canceled and retired by the Corporation, such shares shall not be reissued and
the number of shares of Class B Common Stock which the Corporation shall have
authority to issue shall be decreased by the number of shares of Class B Common
Stock so converted. The Board of Directors shall take such steps as are required
to so retire such shares.
(f) Reservation. The Corporation shall at all times reserve
and keep available, out of its authorized and unissued shares of Class A Common
Stock, for the purposes of effecting conversions, such number of duly authorized
shares of Class A Common Stock as shall from time
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to time be sufficient to effect the conversion of all outstanding shares of
Class B Common Stock; provided, however, that nothing contained herein shall be
construed to preclude the Corporation from satisfying its obligations in respect
of the conversion of the outstanding shares of Class B Common Stock by delivery
of purchased shares of Class A Common Stock which are held in treasury of the
Corporation. All the shares of Class A Common Stock so issuable shall, when so
issued, be duly and validly issued, fully paid and nonassessable, and free from
liens and charges with respect to the issue. The Corporation shall take all
actions as may be necessary to ensure that all such shares of Class A Common
Stock may be so issued without violation of any applicable law or regulation, or
of any requirements of any national securities exchange upon which the shares of
Class A Common Stock are or may be listed, or of any inter-dealer quotation
system of a registered national securities association upon which the shares of
Class A Common Stock are or may be listed.
(g) Taxes. The issuance of a certificate for shares of Class A
Common Stock upon conversion of shares of Class B Common Stock shall be made
without charge for any stamp or other similar tax in respect of such issuance.
However, if any such certificate is to be issued in a name other than that of
the holder of the shares of Class B Common Stock converted, the person or
persons requesting the issuance thereof shall pay to the Corporation the amount
of any tax which may be payable in respect of any transfer involved in such
issuance or shall establish to the satisfaction of the Corporation that such tax
has been paid or is not required to be paid.
ARTICLE VII
Board of Directors
SECTION 1. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors. In addition to
the powers and authorities herein or by statute expressly conferred upon it, the
Board of Directors may exercise all such powers and do all such acts and things
as may be exercised or done by the Corporation, subject, nevertheless, to the
provisions of the laws of the State of Delaware, or this Amended and Restated
Certificate of Incorporation and the By-laws of the Corporation.
SECTION 2. Number and Terms. The number of directors which
shall constitute the whole Board of Directors shall be determined in the manner
provided in the Bylaws of the Corporation. The Board of Directors shall be
divided into three classes, designated Class I, Class II and Class III, which
shall be as nearly equal in number as possible. The initial directors of Class I
shall hold office for a term expiring at the next succeeding annual meeting; the
initial directors of Class II shall be elected to hold office for a term
expiring at the second succeeding annual meeting and the initial directors of
Class III shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Beginning with the next succeeding annual meeting,
directors shall be chosen for a term of three years to succeed those whose terms
then expire and shall hold office until the third following annual meeting of
stockholders and until election of their respective successors.
SECTION 3. Vacancies. Any vacancy on the Board of Directors,
whether arising through death, resignation or removal of a director or through
an increase in the number of
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directors of any class, shall be filled in the following manner: (i) vacancies
in Class A directorships shall be filled by the holders of the issued and
outstanding shares of Class A Common Stock, voting separately as a single class;
and (ii) vacancies in Class B directorships shall be filled by the holders of
the issued and outstanding shares of Class B Common Stock, voting separately as
a single class. The term of office of any director elected to fill such a
vacancy shall expire at the expiration of the term of office of directors of the
class in which the vacancy occurred.
SECTION 4. Other Provisions. Notwithstanding any other
provision of this Article VII, and except as otherwise required by law, whenever
the holders of any one or more series of Preferred Stock or other securities of
the Corporation shall have the right, voting separately as a class, to elect one
or more directors of the Corporation, the term of office, the filling of
vacancies and other features of such directorships shall be governed by the
terms of this Amended and Restated Certificate of Incorporation applicable
thereto, and unless the terms of this Amended and Restated Certificate of
Incorporation expressly provide otherwise, such directorship shall be in
addition to the number of directors provided in the Bylaws and such directors
shall not be classified. Elections of directors need not be by written ballot
unless the Bylaws of the Corporation shall so provide.
ARTICLE VIII
Bylaws
The power to adopt, alter, amend or repeal the Bylaws of the
Corporation shall be vested in the Board of Directors. The stockholders of the
Corporation may adopt, amend or repeal the Bylaws of the Corporation only by the
affirmative vote of holders of at least 66 2/3% of the combined voting power of
the then outstanding shares of stock of all classes and series of the
Corporation entitled to vote generally on matters requiring the approval of
stockholders (the "Voting Stock").
ARTICLE IX
Stockholder Meetings
Any action required or permitted to be taken by the
stockholders of the Corporation must be taken at a duly called and noticed
meeting of stockholders and may not be taken by consent in writing, unless such
action requiring or permitting stockholder approval is approved by a majority of
the directors then in office. An action required or permitted to be taken by the
stockholders which has been approved by a majority of the directors may be taken
by consent in writing if the consent is signed by the record holders of no less
than the Voting Stock that would otherwise be required for approval of such
action.
ARTICLE X
Indemnification
SECTION 1. The personal liability of the directors of the
Corporation is hereby eliminated to the fullest extent permitted by the
provisions of paragraph (7) of subsection (b) of Section 102 of the General
Corporation Law of the State of Delaware, as the same may be
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amended and supplemented (but any such amendment shall not be deemed to increase
the liability of any directors of the Corporation for past acts or omissions of
any such person insofar as such amendment decreases the extent of liability
protection that said law permitted the Corporation to provide prior to such
amendment).
SECTION 2. The Corporation shall, to the fullest extent
permitted by the provisions of Section 145 of the General Corporation Law of the
State of Delaware, as the same may be amended and supplemented (but any such
amendment shall not be deemed to limit or prohibit the rights of indemnification
hereunder for past acts or omissions of any such person insofar as such
amendment limits or prohibits the indemnification rights that said law permitted
the Corporation to provide prior to such amendment), indemnify any and all
persons whom it shall have the power to indemnify under said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in such person's official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such person.
SECTION 3. Any repeal or modification of this Article X shall
be prospective only and shall not adversely affect any right or protection of,
or any limitation of the liability of, a director or officer of the Corporation,
or any other person covered under this Article X, existing at, or arising out of
facts or incidents occurring prior to, the effective date of such repeal or
modification.
ARTICLE XI
Amendments
The provisions set forth in Articles VI, VII, VIII, IX, X and
in this Article XI may not be repealed, rescinded, altered or amended, and no
other provision may be adopted which is inconsistent therewith or impairs in any
way the operation or effect thereof, except by the affirmative vote of holders
of not less than 66 2/3% of the Voting Stock.
Consistent with the preceding sentence, the Corporation
reserves the right to adopt, repeal, rescind, alter or amend in any respect any
provision contained in this Amended and Restated Certificate of Incorporation as
prescribed by applicable law.
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ARTICLE XI
Definitions
The following terms used herein shall the meanings specified
below.
"Deferrable Interest Notes" shall mean the 10% Secured Deferrable
Interest Notes due 2005 issued by the Corporation pursuant to the Plan under the
Deferrable Interest Notes Indenture.
"Deferrable Interest Notes Indenture" means the Indenture among the
Corporation, as Issuer, the Subsidiary Guarantors named therein, and United
States Trust Company of New York, as trustee, which Indenture relates to the
Deferrable Interest Notes.
"New Class B Common Stock" means the 7,000,000 shares of Class B Common
Stock to be issued to the New Money Investors under the Plan.
"New Money Investors" means certain persons or entities that have
agreed to purchase 7,000,000 shares of New Class B Common Stock for an aggregate
purchase price of $30 million in accordance with the terms of the Plan.
"Plan" means the Joint Plan of Reorganization proposed by the
Corporation and certain of its subsidiaries, as it may be amended or modified
from time to time, and as confirmed by Order dated January 20, 2000 by the
United States Bankruptcy Court for the District of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Amended
and Restated Certificate of Incorporation to be executed in its corporate name
this ____ day of March, 2000.
PLANET HOLLYWOOD INTERNATIONAL, INC., a Delaware
corporation
By: _________________________
Name: Robert Earl
Title: President and Chief Executive Officer
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