<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
AMC ENTERTAINMENT INC.
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(Name of Issuer)
COMMON STOCK, 66 2/3 CENTS PAR VALUE
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(Title of Class of Securities)
001669 10 0
--------------------------------------------------------
(CUSIP Number)
Raymond F. Beagle, Jr.
GAGE & TUCKER
2345 Grand Avenue
P.O. Box 418200
Kansas City, Missouri 64141
(816) 292-2129
--------------------------------------------------------
(Name, Address and Telephone Number)
of Person Authorized to Receive
Notices and Communications)
January 24, 1994
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(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box / /.
Check the following box if a fee is being paid with this statement /X/.
<PAGE>
CUSIP NO. 001669 10 0
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(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Durwood, Inc., 44-0521700
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(2) Check the Appropriate Box if a Member (a) / /
of a Group (See Instructions) (b) /X/
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(3) SEC Use Only
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(4) Source of Funds (See Instructions)
00
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) / /
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(6) Citizenship or Place of Organization
Missouri
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Number of Shares (7) Sole Voting
Beneficially Owned Power 2,641,951
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 0
--------------------------------------------------
(9) Sole Dispositive
Power 2,641,951
--------------------------------------------------
(10) Shared Dispositive
Power 0
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,641,951
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions) / /
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(13) Percent of Class Represented by Amount in Row (11)
50.2%
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(14) Type of Reporting Person (See Instructions)
CO
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<PAGE>
ITEM 1. SECURITY AND ISSUER.
This statement relates to the Common Stock, par value 66 2/3 CENTS per
share, of AMC Entertainment Inc., a Delaware corporation ("AMCE"). AMCE's
Common Stock, par value 66 2/3 CENTS per share, is referred to herein as
"Common Stock". AMCE's principal executive offices are located at 106 West
14th Street, Kansas City, Missouri 64105.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is filed by Durwood, Inc., a Missouri corporation ("DI"),
and contains information respecting DI, Stanley H. Durwood, President and
treasurer and a director of DI, American Associated Enterprises, a Missouri
limited partnership ("AAE") and Edward D. Durwood, Executive Vice President and
a director of DI. Stanley H. Durwood and Edward D. Durwood constitute the
executive officers of DI. Stanley H. Durwood and Edward D. Durwood constitute
the directors of DI.
A revocable inter-vivos trust established by Stanley H. Durwood for the
benefit of Stanley H. Durwood holds approximately 75% of the voting power of
the outstanding capital stock of DI. AAE, in which Stanley H. Durwood is the
limited partner and his children are the general partners (on whose behalf
Edward D. Durwood has voting authority), holds approximately 25% of the voting
power of DI's outstanding capital stock. By virtue of such relationships,
Stanley H. Durwood, AAE, and Edward D. Durwood may be deemed controlling
persons of DI.
The following information is furnished with respect to DI:
(a) Name: Durwood, Inc.
(b) State of Organization: Missouri
(c) Principal Business: DI's principal business is that of a holding
company which owns capital stock of AMCE.
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(d) Address of Its Principal Business Office:
106 West 14th Street
Kansas City, Missouri 64105
(e) During the last five years, DI has not been convicted in any criminal
proceeding.
(f) During the last five years, DI has not been a party to any civil
proceeding of a judicial or administrative body of competent
jurisdiction which resulted in DI being subject to a judgment, decree
or final order enjoining future violations of, or prohibiting or
mandating activity subject to, federal or state securities laws or
finding any violation with respect to such laws.
The following information is furnished with respect to the individuals
whose names are listed above as being executive officers or directors of DI:
<TABLE>
<CAPTION>
Business Principal
(a) Name (b) Address (c) Occupation
---- -------- ----------
<S> <C> <C>
Stanley H. Durwood 106 W. 14th St. Chairman of Board
Kansas City, MO and Chief Executive
64105 Officer of AMCE
Edward D. Durwood 106 W. 14th St. President and Vice
Kansas City, MO Chairman of the
64105 Board of AMCE
</TABLE>
(d) None of the above individuals has been convicted in
a criminal proceeding (excluding traffic violations
or similar misdemeanors) during the last five years.
(e) None of the above individuals has, during the last
five years, been a party to a civil proceeding of a
judicial or administrative body of competent
jurisdiction resulting in any such individual being
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<PAGE>
subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state
securities laws or finding any violation with
respect to such laws.
(f) Each of the above individuals is a United States citizen.
The following information is furnished with respect to
AAE.
(a) Name: American Associated Enterprises
(b) State of Organization: Missouri
(c) Principal Business: owning capital stock of DI
(d) Address of Its Principal Business Office:
106 West 14th
Kansas City, Missouri 64105
(e) During the last five years, AAE has not been
convicted in any criminal proceeding.
(f) During the last five years, AAE has not been a party
to any civil proceeding of a judicial or adminis-
trative body of competent jurisdiction which re-
sulted in AAE being subject to a judgment, decree or
final order enjoining future violations of, or pro-
hibiting or mandating activity subject to, federal
or state securities laws or finding any violation
with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Prior to January 24, 1994, DI owned 2,068,951 shares of
Common Stock and 11,730,000 shares of Class B Stock, par value
66 2/3 CENTS per share (the 'Class B Stock') of AMCE. Under AMCE's
Certificate of Incorporation, each share of Class B Stock is
convertible into one share of Common Stock. On January 24,
1994 DI converted 573,000 shares of Class B Stock into 573,000
shares of Common Stock. The sole consideration for issuance
of the Common Stock was conversion of the Class B Stock and
the cancellation of the converted shares of Class B Stock.
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ITEM 4. PURPOSE OF TRANSACTION.
The purpose of the conversion was to permit approval by
DI without a stockholders' meeting of a Restated and Amended
Certificate of Incorporation (the 'Restated Certificate') for
AMCE. The purpose of the amendment is to clarify the
authority of AMCE's Board of Directors to establish powers,
preferences and rights with respect to voting and liquidation
of one or more series of preferred stock presently authorized
under AMCE's existing Certificate of Incorporation. The
existing Certificate of Incorporation is being amended and
restated in connection with an offering by AMCE pursuant to a
registration statement filed by AMCE with the Securities and
Exchange Commission with respect to up to 4,600,000 shares of
Cumulative Convertible Preferred Stock, par value 66 2/3 CENTS per
share (the 'Offering').
The Restated Certificate and the Offering are described
in more detail in the Information Statement on Schedule 14c
mailed on January 28, 1994 to all of the record owners of
Common Stock and Class B Stock as of the close of business on
January 26, 1994 (the 'Information Statement'). A copy of the
Information Statement is attached as Exhibit A to this
Schedule 13D, and the discussion therein under the caption "The
Offering" is incorporated herein by reference.
Except for the foregoing, neither DI nor to its knowledge any of the
persons referred to in Item 2 has any plans or proposals which relate to or
would result in:
(a) The acquisition by any person of
additional securities of AMCE, or the disposition of
securities of AMCE (other than pursuant to the exercise of employee
stock options);
(b) An extraordinary corporate transaction,
such as a merger, reorganization or liquidation,
involving AMCE or any of its subsidiaries;
(c) A sale or transfer of a material amount of
assets of AMCE or any of its subsidiaries;
(d) Any change in the present board of
directors or management of AMCE, including any plans
or proposals to change the number or term of
directors or to fill any existing vacancies on the
board;
(e) Any material change in the present
capitalization or dividend policy of AMCE (except for
the Offering);
(f) Any other material change in AMCE's
business or corporate structure;
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<PAGE>
(g) Changes in AMCE's charter, bylaws or
instruments corresponding thereto or other actions
which may impede the acquisition of control of AMCE
by any person;
(h) Causing a class of securities of AMCE to
be delisted from a national securities exchange or
to cease to be authorized to be quoted in an inter-
dealer quotation system of a registered national
securities association;
(i) A class of equity securities of AMCE
becoming eligible for termination of registration
pursuant to Section 12(g) (4) of the Act; or
(j) Any action similar to any of those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) DI owns 2,641,951 shares of Common Stock, which
constitutes 50.2% of all outstanding shares of Common Stock.
Stanley H. Durwood, individually, owns 150 shares of Common
Stock, which constitutes less than 1% of all outstanding
shares of Common Stock.
(b) DI has the sole power to vote and the sole power to
dispose of the 2,641,951 shares owned by DI. Stanley H.
Durwood has the sole power to vote and the sole power to
dispose of the 150 shares owned by him.
(c) Except for the conversion of shares of Class B
Stock described in Item 4 above, neither DI nor any of the
persons identified in Item 2 as controlling persons of DI has
effected any transactions in the Common Stock of AMCE during
the past 60 days.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS, WITH RESPECT
TO SECURITIES OF THE ISSUER.
Not Applicable
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<PAGE>
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Schedule 14C Information Statement mailed on January 28,
1994 to holders of record of Common Stock as of the close of
business on January 26, 1994.
After reasonable inquiry and to the best knowledge and
belief of the undersigned, the undersigned certifies that the
information set forth in this statement is true, complete and
accurate.
DURWOOD, INC.
February 2, 1994 BY ----------------------------------------
Stanley H. Durwood
President
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<PAGE>
INFORMATION STATEMENT
AMC Entertainment Inc.
106 West 14th Street
Kansas City, Missouri 64105
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE
REQUESTED NOT TO SEND US A PROXY
This Information Statement is furnished by the Board of Directors of AMC
Entertainment Inc., a Delaware corporation (the "Company"), to the holders of
record at the close of business on January 26, 1994 (the "Consent Record Date")
of the Company's outstanding Common Stock, par value 66 2/3 CENTS per share (the
"Common Stock") and of the Company's outstanding Class B Stock, par value
66 2/3 CENTS per share (the "Class B Stock") pursuant to Rule 14c-2 promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The
purpose of this Information Statement is to inform all such stockholders of
certain action that will be taken by the Company pursuant to approval of the
Board of Directors and by the written consent of the holders of a majority of
the outstanding shares of Common Stock and Class B Stock as to which votes are
entitled to be cast. This Information Statement is being mailed on or about
January 28, 1994 to the stockholders of record of the Company as of the Consent
Record Date.
As described in more detail in this Information Statement, the proposed
action involves the amendment and restatement (the "Amendment") of the Company's
existing Certificate of Incorporation, as amended (the "Certificate of
Incorporation") to clarify the authority of the Board of Directors to establish
powers, preferences and rights with respect to voting and liquidation of one or
more series of Preferred Stock presently authorized under the Company's
Certificate of Incorporation. The Amendment is described in more detail below
under the caption "Proposed Amendment and Restatement of Certificate of
Incorporation."
The Amendment is being made in connection with an offering (the "Offering")
by the Company pursuant to a registration statement filed by the Company with
the Securities and Exchange Commission with respect to up to 4,600,000 shares of
Cumulative Convertible Preferred Stock, par value 66 2/3 CENTS per share (the
"Convertible Preferred"). The Offering and certain of the proposed terms of the
Convertible Preferred are described in more detail below under the caption "The
Offering."
The Company is not seeking the consent, authorization or proxy of its
stockholders with respect to the Amendment. Pursuant to the Company's
Certificate of Incorporation, there are 45,000,000 shares of Common Stock and
30,000,000 shares of Class B Stock authorized for issuance. As of the Consent
Record Date, the Company had outstanding 5,261,830 shares of Common Stock and
11,157,000 shares of Class B Stock. The Common Stock and the Class B Stock are
the only outstanding issues of the Company's authorized securities.
The Amendment is subject to the approval of a majority of the holders of
Common Stock and Class B Stock voting as a single class, with the holders of
Common Stock receiving one vote per share and the holders of Class B Stock
receiving 10 votes per share, and to the approval of a majority of the holders
of Common Stock and Class B Stock, with each class voting separately. The
Amendment was approved by the Board of Directors on the Consent Record Date. It
is anticipated that the Amendment will be approved by the written consent of
Durwood, Inc. ("DI"), as holder of a majority of the outstanding shares of
Common Stock and Class B Stock, on or about February 17, 1994. Thereafter,
notice of such approval will be furnished stockholders and the Amendment will be
filed with the Secretary of State of Delaware.
<PAGE>
SECURITY OWNERSHIP OF BENEFICIAL OWNERS
The following table sets forth certain information as of the Consent Record
Date with respect to beneficial owners of five percent or more of any class of
the Company's capital stock:
<TABLE>
<CAPTION>
NUMBER OF SHARES
NAME AND ADDRESS BENEFICIALLY PERCENT
TITLE OF CLASS OF BENEFICIAL OWNER OWNED OF CLASS
- --------------------------------------- --------------------------------- ----------------- -----------
<S> <C> <C> <C>
Common Stock........................... Durwood, Inc.(1) 2,641,951(2) 50.2%(2)
106 West 14th Street
Kansas City, MO 64105
Wells Fargo Institutional 268,947(3) 5.1%(4)
Trust Company, N.A.(3)
45 Fremont Street, 17th Floor
San Francisco, CA 94105
David L. Babson & 417,500(5) 7.9%(6)
Company, Inc.(5)
One Memorial Drive
Cambridge, MA 02142
Class B Stock (7)...................... Durwood, Inc.(1) 11,157,000(2) 100%(2)
106 West 14th Street
Kansas City, MO 64105
<FN>
- ------------------------
(1) A revocable inter-vivos trust established by Mr. Stanley H. Durwood for
the benefit of Mr. Stanley H. Durwood holds approximately 75% of the
voting power of the outstanding capital stock of DI. American Associated
Enterprises, a Missouri limited partnership of which Mr. Stanley H.
Durwood is the limited partner and his children are the general partners
(on whose behalf Mr. Edward D. Durwood has voting authority), holds
approximately 25% of the voting power of DI's outstanding capital stock.
Mr. Stanley H. Durwood is Chairman of the Board, Chief Executive Officer
and a Director of the Company, and Mr. Edward D. Durwood is President,
Vice Chairman of the Board and a Director of the Company.
(2) Class B Stock is convertible into Common Stock on a share-for-share basis.
The stated percentage has been computed without giving effect to the
conversion option. Were all shares of Class B Stock converted there would
be 16,418,830 shares of Common Stock outstanding, of which DI would hold
13,798,951 shares, or 84% of the outstanding Common Stock. On January 25,
1994, DI converted 573,000 shares of Class B into Common Stock.
(3) As reported by Wells Fargo Institutional Trust Company, N.A., on Schedule
13G dated February 11, 1993.
(4) Because the number of outstanding shares of Common Stock has increased
since February 11, 1993, the number of shares of Common Stock disclosed in
such Schedule 13G constitutes 5.1% of the outstanding shares of Common
Stock as of the Consent Record Date.
(5) As reported by David L. Babson & Company, Inc. on Schedule 13G dated
January 22, 1993.
(6) Because the number of outstanding shares of Common Stock has increased
since January 22, 1993, the number of shares of Common Stock disclosed in
such Schedule 13G constitutes 7.9% of the outstanding Common Stock as of
the Consent Record Date.
(7) In the election of Directors, holders of Class B Stock are entitled to
elect four of the Company's six Directors. On other matters, holders of
Class B Stock vote as a class with holders of Common Stock, with each
share of Class B Stock being entitled to ten votes per share.
</TABLE>
2
<PAGE>
BENEFICIAL OWNERSHIP OF DIRECTORS AND OFFICERS
The following table sets forth certain information as of the Consent Record
Date with respect to beneficial ownership by Directors and Executive Officers of
the Company's Common Stock and Class B Stock.
<TABLE>
<CAPTION>
NAME OF AMOUNT AND NATURE OF PERCENT
TITLE OF CLASS BENEFICIAL OWNER BENEFICIAL OWNERSHIP OF CLASS
- ---------------------------------- ----------------------------------- -------------------- -----------
<S> <C> <C> <C>
Common Stock...................... Stanley H. Durwood 2,642,101(1) 50.2%
Edward D. Durwood 200,000(2) *
Paul E. Vardeman 300 *
Philip M. Singleton 170,000(2) *
Peter C. Brown 150,000(2) *
Donald P. Harris 59,808(2) *
All Directors and Executive 3,396,689(2) 56.9%
Officers as a group (13 persons,
including the individuals
named above)
Class B Stock (1)................. Stanley H. Durwood 11,157,000(1) 100%(1)
<FN>
- ------------------------
* Less than one percent.
(1) See Notes 1 and 2 under "Security Ownership of Beneficial Owners." Mr.
Stanley H. Durwood also directly owns 150 shares of the Company's Common
Stock.
(2) Includes shares subject to options to purchase Common Stock under the
Company's 1984 Stock Option Plan which are deemed to be beneficially owned
pursuant to the rules and regulations of the Securities and Exchange
Commission, as follows: Edward D. Durwood -- 200,000 shares; Philip M.
Singleton -- 150,000 shares; Peter C. Brown -- 150,000 shares; Donald P.
Harris -- 57,000 shares; and all executive officers as a group -- 707,000
shares.
</TABLE>
PROPOSED AMENDMENT AND RESTATEMENT OF THE COMPANY'S
CERTIFICATE OF INCORPORATION
EXISTING PROVISIONS AFFECTED BY AMENDMENT
Under the Company's existing Certificate of Incorporation, the Board of
Directors is authorized to establish by resolution one or more series of
Preferred Stock, the number of shares of each series, and the powers,
preferences, rights, qualifications, limitations and restrictions of each
series. However, the Company has been advised by counsel that a possible
conflict exists between certain provisions of the Certificate of Incorporation
respecting the Common Stock and the Class B Stock and those empowering the Board
to set the terms of Preferred Stock which may be issued. The Company proposes to
amend and restate its Certificate of Incorporation to eliminate the conflict and
clarify the authority of the Board of Directors to establish the powers,
preferences, rights, qualifications, limitations and restrictions of Preferred
Stock which may be issued. As proposed to be amended pursuant to the Amendment,
the Company's Restated and Amended Certificate of Incorporation will provide
that the rights of holders of Common Stock and Class B Stock with respect to
voting and liquidation will be subject to rights which may be granted to holders
of Preferred Stock by the Board of Directors. It is also proposed that the
Certificate of Incorporation be amended to (i) delete references to Cumulative
Preferred Stock, 14% Series of 1988, no shares of which are outstanding, (ii)
limit the application of certain provisions in the Certificate of Incorporation
addressing vacancies on the Board to the Class B and Common Stock, and (iii)
make other nonsubstantive modifications, such as changing the enumeration of
certain sections.
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<PAGE>
The following is a summary of existing provisions of the Company's
Certificate of Incorporation with respect to the voting and liquidation rights
of Common Stock and Class B Stock that will be substantively changed by the
Amendment.
VOTING RIGHTS. The holders of Common Stock are entitled to one vote per
share and, except for the election of directors, vote together as a single
class with the Class B Stock, subject to the right to vote as a separate
class on certain charter amendments affecting the Common Stock and as
required by law. The holders of Class B Stock are entitled to ten votes per
share and, except for the election of directors, vote together with the
Common Stock as a single class, subject to the right to vote as a separate
class on certain charter amendments affecting the Class B Stock and as
required by law.
Holders of Common Stock, voting separately as a class, with each share
having one vote for such purpose, generally have the right to elect 25% of
the Board of Directors. So long as any shares of Class B Stock remain
outstanding, holders of Class B Stock, voting separately as a single class,
with each share of Class B Stock having one vote for such purpose, generally
have the right to elect 75% of the Board of Directors. If the total number
of shares of Class B Stock outstanding becomes less than 12 1/2% of the
aggregate number of shares of Common Stock and Class B Stock outstanding,
then so long as shares of Common Stock are listed on the American Stock
Exchange, the 75% of the Board of Directors otherwise elected by holders of
Class B Stock will be elected by holders of Common Stock and Class B Stock
voting together as a single class, with each share of Common Stock having
one vote per share and each share of Class B Stock having ten votes per
share. In the event that no shares of Class B Stock remain outstanding, the
holders of Common Stock may elect all of the Board of Directors, with each
share having one vote for such purpose. Holders of Common Stock and Class B
Stock do not have cumulative voting rights in elections of directors.
The Certificate of Incorporation also states that except as provided
therein or by law, all rights to vote on matters to be voted upon by
stockholders is vested in the holders of the Class B and Common Stock.
As a result of the existing provisions of the Certificate of
Incorporation, there may be a question whether the Board of Directors, when
establishing terms of the Preferred Stock, may grant voting rights to
holders of Preferred Stock in the election of directors or as to other
matters.
LIQUIDATION RIGHTS. Upon any liquidation, dissolution or winding-up of
the Company, holders of Common Stock and Class B Stock are entitled to
receive, pro rata per share, any remaining assets of the Company available
for distribution to stockholders. As a result of these provisions, there may
be a question whether Preferred Stock may have any liquidation rights under
the Certificate of Incorporation.
PROPOSED AMENDMENTS
As proposed, the provisions of Article Fourth of the Restated and Amended
Certificate of Incorporation will provide that the rights of holders of Common
Stock and Class B Stock as to voting, including the rights of such holders to
elect members of the Company's Board of Directors, and as to liquidation, will
be subject to such rights, powers and preferences as may be granted to holders
of Preferred Stock. To the extent that the Board of Directors in the future
authorizes series of Preferred Stock with rights as to voting and liquidation,
the rights of holders of Common Stock and Class B Stock may be reduced. Without
limiting the preceding, holders of Preferred Stock may be granted the right to
elect members of the Board of Directors, to vote on other matters, such as
mergers and the authorization or issuance of other series of stock, and may be
granted preferences upon liquidation of the Company.
It is also proposed that the Certificate of Incorporation be amended to (i)
delete references to Cumulative Preferred Stock, 14% Series of 1988, no shares
of which are outstanding, (ii) provide that only directors elected by holders of
Class B Stock and Common Stock may fill vacancies on the Board allocable to
Class B Stock when there are no Class B shares outstanding, and (iii) make other
nonsubstantive modifications, such as changing the enumeration of certain
sections.
4
<PAGE>
The amendment referred to in clause (ii) of the preceding paragraph, which
is found in ARTICLE FOURTH, Section (c)(v)(E) of the Proposed Restated and
Amended Certificate of Incorporation, preserves for directors elected by holders
of Class B Stock and Common Stock the power to fill vacancies on the Board
allocable to Class B Stock at times when no shares of Class B Stock are
outstanding but shares of Preferred Stock having voting rights in the election
of directors are outstanding. Without such change, directors elected by holders
of Preferred Stock might be entitled to participate in filling a vacancy
allocable to Class B Stock.
The reason for the proposed Amendment is to facilitate the issuance of
Preferred Stock, particularly in connection with the Offering. Although the
Board of Directors is currently authorized to establish series of Preferred
Stock and to establish powers, rights, preferences, qualifications, limitations
and restrictions for such Preferred Stock, the existing Certificate of
Incorporation is unclear as to the effect on the rights of holders of Common
Stock and Class B Stock if the Board of Directors were to authorize Preferred
Stock with rights which conflict with or exceed those granted to holders of
Common Stock or Class B Stock. In the judgement of the Board of Directors, the
lack of clarity inhibits the Company's ability to issue Preferred Stock, the
holders of which will typically have the right to approve certain actions, such
as the issuance or authorization of senior or parity securities, to elect
members of the Board of Directors under certain circumstances and to have
certain preferences with respect to liquidation.
The preceding paragraphs contain only a summary description of the material
provisions of the proposed Amendment and are qualified in their entirety by
reference to the full text of the proposed Restated and Amended Certificate of
Incorporation, the form of which is set forth in Exhibit A hereto. To assist
stockholders, all changes from the Company's existing Certificate of
Incorporation are shown in the attached Exhibit A. Deleted language is preceded
and followed by a # sign and new language is underlined.
The Amendment will be effective following its approval by DI and upon filing
the Restated and Amended Certificate of Incorporation with the Secretary of
State of Delaware. Pursuant to Delaware law, such filing will not occur until
notice of such approval has been mailed to stockholders. The Company currently
anticipates that the proposed Amendment will be effective on or after February
17, 1994.
THE OFFERING
The Amendment is being made in connection with the Offering of 4,000,000
shares of the Convertible Preferred (4,600,000 shares if the Underwriters
exercise their over-allotment option). The Offering will be made in a public
offering, for cash, pursuant to a registration statement filed with the
Securities and Exchange Commission.
The net proceeds to the Company from the sale of the Convertible Preferred
are estimated to be approximately $96 million, assuming the over-allotment
option is not exercised. The Company intends to use such proceeds (i) to improve
its domestic theatre circuit through the addition of screens at, or remodeling
of, existing theatres, the construction of new theatres and the acquisition of
existing theatres from other circuits, (ii) to finance the construction or
acquisition of theatres in foreign markets and (iii) for general corporate
purposes. Such new theatres and screens may be acquired pursuant to lease
agreements or through acquisition of fee ownership and may be constructed by the
Company on a stand-alone basis or through partnerships or other arrangements
with third parties. The Company also may use a portion of the net proceeds from
the Offering to repurchase and retire a portion of the Company's outstanding
11 7/8% Senior Notes Due 2000 and/or 12 5/8% Senior Subordinated Notes Due 2002
(collectively, the "Notes") pursuant to open market or privately negotiated
purchases or otherwise. The Company's determination to acquire Notes will depend
on many factors, including factors beyond its control such as prevailing market
prices for the Notes, and may be subject to limitations in debt instruments to
which it is a party.
The actual number of screens which the Company might build or acquire with
proceeds of the Offering or otherwise will depend on a number of factors,
including geographic location, whether the Company acquires fee as opposed to
leasehold interests in the theatres and theatre sites and the availability of
5
<PAGE>
development partners or other outside financing sources. Presently the Company
is not engaged in discussions with any person respecting the possible
acquisition of existing theatres or theatre circuits, and there can be no
assurances that any acquisition will occur. Pending their use for the purposes
set forth above, the Company will invest the net proceeds of the Offering in
interest-bearing instruments or other securities.
Certain provisions of the Convertible Preferred relating to dividend rates,
redemption prices and conversion prices are not presently known and will be
established subsequently by the Board of Directors in connection with the
Offering. Set forth below is a summary of the other material terms of the
Convertible Preferred.
GENERAL. When issued, the Convertible Preferred will be fully paid and
nonassessable. The holders of the Convertible Preferred will have no preemptive
rights with respect to any shares of capital stock of the Company or any other
securities of the Company convertible into, or carrying rights or options to
purchase, any such shares. The Convertible Preferred will not be subject to any
sinking fund or other obligation of the Company to redeem or retire the
Convertible Preferred. Unless redeemed by the Company or converted, the
Convertible Preferred will be perpetual. United Missouri Bank, N.A., will be the
registrar, transfer agent, conversion agent and dividend disbursing agent for
the Convertible Preferred.
RANKING. The Convertible Preferred will rank, with respect to dividend
rights and rights on liquidation, winding-up and dissolution, (i) senior to all
classes of common stock of the Company (including, without limitation, the
Common Stock and Class B Stock) and each other class of capital stock or series
of preferred stock established after the Offering by the Board of Directors of
the Company which does not expressly provide that it ranks senior to or on a
parity with the Convertible Preferred as to dividend rights and rights on
liquidation, winding-up and dissolution (collectively referred to with the
common stock of the Company as "Junior Securities"); (ii) on a parity with each
other class of capital stock or series of preferred stock established after the
Offering by the Board of Directors of the Company which expressly provides that
such series will rank on a parity with the Convertible Preferred as to dividend
rights and rights on liquidation, winding-up and dissolution (collectively
referred to as "Parity Securities"); and (iii) junior to each other class of
capital stock or series of preferred stock established after the Offering by the
Board of Directors of the Company which expressly provides that such series will
rank senior to the Convertible Preferred as to dividend rights and rights on
liquidation, winding-up and dissolution (collectively referred to as "Senior
Securities"). While any shares of Convertible Preferred are outstanding, the
Company may not issue, authorize or increase the authorized amount of, or issue
or authorize or increase any obligation or security convertible into or
evidencing a right to purchase any additional class or series of (x) Senior
Securities, without the vote or consent of the holders of two-thirds of the
outstanding shares of Convertible Preferred and any Parity Securities, voting as
a single class without regard to series, or (y) Parity Securities, without the
vote or consent of the holders of a majority of the outstanding shares of
Convertible Preferred and any Parity Securities, voting as a single class
without regard to series. However, the Company may create additional classes of
Junior Securities, increase the authorized number of shares of any Junior
Security or issue any Junior Securities without the consent of any holder of the
Convertible Preferred. See "-- Voting Rights."
DIVIDENDS. Holders of shares of the Convertible Preferred will be entitled
to receive, when, as and if declared by the Board of Directors of the Company
out of funds of the Company legally available for payment, cash dividends at an
annual rate per share of Convertible Preferred to be determined by the Board of
Directors, payable in arrears on March 15, June 15, September 15 and December 15
of each year, commencing on the first such date following issuance of the
Convertible Preferred (and, in the case of any accrued but unpaid dividends, at
such additional times and for such interim periods, if any, as determined by the
Board of Directors), except that if any such date is a Saturday, Sunday or legal
holiday, then such dividend shall be payable on the next day that is not a
Saturday, Sunday or legal holiday. Each dividend will be payable to holders of
record as they appear on the stock books of the Company on a record date fixed
by the Board of Directors which shall be not more than 60 nor less than ten days
before the payment date. Dividends will be cumulative from the date of original
issuance of the Convertible Preferred. Dividends payable on the Convertible
Preferred for each full dividend period will be computed by annualizing the
dividend rate and dividing by four. Dividends payable for any period less than a
full dividend period will be computed on the basis of a 360-day year consisting
of twelve 30-day months. The Convertible Preferred will
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not be entitled to any dividend, whether payable in cash, property or stock, in
excess of full cumulative dividends. No interest, or sum of money in lieu of
interest, will be payable in respect of any accrued and unpaid dividends.
No full dividends may be declared or paid or funds set apart for the payment
of dividends on any Parity Securities for any period unless full cumulative
dividends shall have been paid or set apart for such payment on the Convertible
Preferred. If full cumulative dividends are not paid in full, or declared in
full and sums set apart for the payment thereof, upon the Convertible Preferred
and upon any other Parity Securities, all dividends declared upon shares of
Convertible Preferred and any such Parity Securities will be declared and paid
pro rata so that in all cases the amount of dividends declared per share on the
Convertible Preferred and on such other Parity Securities will bear to each
other the same ratio that accrued and unpaid dividends per share on the shares
of Convertible Preferred and such other Parity Securities bear to each other. No
dividends may be paid or set apart for such payment on Junior Securities (except
dividends on Junior Securities payable in additional shares of Junior Securities
or rights to acquire Junior Securities) and no Junior Securities may be
repurchased, redeemed or otherwise retired, nor may funds be set apart for
payment with respect thereto, if full dividends for all prior periods have not
been paid on the Convertible Preferred. Accumulated unpaid dividends will not
bear interest.
Under Delaware law, the Company may declare and pay dividends on its capital
stock only out of surplus, as defined in the Delaware General Corporation Law
(the "DGCL") or, if there is no such surplus, out of its net profits for the
fiscal year in which the dividend is declared and/or the preceding fiscal year.
Surplus under the DGCL is generally defined to mean the excess, at any given
time, of the net assets of a corporation over the amount of the corporation's
capital. No dividends or distributions may be declared, paid or made if the
Company is or would be rendered insolvent by virtue of such dividend or
distribution, or if such declaration, payment or distribution would contravene
the Certificate of Incorporation.
LIQUIDATION RIGHTS. In the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company, before any payment or
distribution of assets is made on any Junior Securities, including, without
limitation, the Common Stock and Class B Stock of the Company, but after payment
or provision for payment of the Company's debts and other liabilities, the
holders of the Convertible Preferred shall receive a liquidation preference of
$25.00 per share and shall be entitled to receive all accrued and unpaid
dividends through the date of distribution, and the holders of any Parity
Securities shall be entitled to receive the full respective liquidation
preferences (including any premium) to which they are entitled and shall receive
all accrued and unpaid dividends with respect to their respective shares through
and including the date of distribution. If, upon such a voluntary or involuntary
liquidation, dissolution or winding-up of the Company, the assets of the Company
are insufficient to pay in full the amounts described above as payable with
respect to the Convertible Preferred and any Parity Securities, the holders of
the Convertible Preferred and such Parity Securities will share ratably in any
such distribution of assets of the Company, first in proportion to their
respective liquidation preferences, until such preferences are paid in full, and
then in proportion to their respective amounts of accrued but unpaid dividends.
After payment of any such liquidating preference and accrued dividends, the
shares of Convertible Preferred will not be entitled to any further
participation in any distribution of assets by the Company. Neither the sale or
transfer of all or substantially all the assets of the Company, nor the merger
or consolidation of the Company into or with any other corporation or a merger
of any other corporation with or into the Company, nor any dissolution,
liquidation, winding up, or reorganization of the Company immediately followed
by reincorporation of another corporation, will be deemed to be a liquidation,
dissolution or winding-up of the Company.
OPTIONAL REDEMPTION. Shares of the Convertible Preferred are not subject to
any mandatory redemption, sinking fund or other similar provision and may not be
redeemed at the option of the Company on or prior to January 1, 1997. After such
date the Convertible Preferred will be redeemable at the option of the Company
upon notice at any time, in whole or in part, at redemption prices per share to
be established by the Board of Directors (expressed as a percentage of the
$25.00 liquidation preference thereof), plus accrued and unpaid dividends, if
any, up to but excluding the date fixed for redemption.
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<PAGE>
If fewer than all of the outstanding shares of the Convertible Preferred are
to be redeemed, the shares to be redeemed will be determined pro rata or by lot.
In the event that any quarterly dividends payable on the Convertible Preferred
are in arrears, the Convertible Preferred may not be redeemed unless all
outstanding shares of Convertible Preferred are simultaneously redeemed or the
outstanding shares of the Convertible Preferred are redeemed on a pro rata
basis.
Notice of redemption will be given by first class mail, not less than 30
days nor more than 60 days prior to the date fixed for redemption thereof, to
each record holder of the shares of Convertible Preferred to be redeemed at the
address of such holder in the stock register of the Company. If a notice of
redemption has been given, from and after the specified redemption date (unless
the Company defaults in making payment of the redemption price), dividends on
the Convertible Preferred so called for redemption will cease to accrue, such
shares will no longer be deemed to be outstanding, and all rights of the holders
thereof as stockholders of the Company (except the right to receive the
redemption price) will cease.
The ability of the Company to redeem shares of Convertible Preferred is
restricted under the terms of the Company's existing credit facility and the
Notes.
VOTING RIGHTS. Except as indicated below or as expressly required by
applicable law, the holders of the Convertible Preferred will have no voting
rights. If the equivalent of six full quarterly dividends payable on the
Convertible Preferred are in arrears, the authorized number of directors of the
Company will be increased by two and the holders of the Convertible Preferred,
voting separately as a class with the holders of shares of any Parity Securities
upon which like voting rights have been conferred and are exercisable, will be
entitled to elect two directors, either by written consent or at any meeting at
which directors are to be elected, until all dividends in arrears on the
Convertible Preferred have been paid or declared and set apart for payment. Upon
payment or declaration and setting apart of funds for payment of all such
dividends in arrears, the term of office of each director elected will
immediately terminate and the number of directors constituting the entire Board
of Directors will be reduced by the number of directors elected by the holders
of the Convertible Preferred and any Parity Securities.
The vote or consent of the holders of two-thirds of the outstanding shares
of Convertible Preferred and any Parity Securities, voting as a single class
without regard to series, will be required to issue, authorize or increase the
authorized amount of, or issue or authorize or increase any obligation or
security convertible into or evidencing a right to purchase, any additional
class or series of Senior Securities. Furthermore, the vote or consent of the
holders of a majority of the outstanding shares of Convertible Preferred and any
Parity Securities, voting as a single class without regard to series, will be
required to issue, authorize or increase the authorized amount of, or issue or
authorize or increase any obligation or security convertible into or evidencing
a right to purchase, any additional class or series of Parity Securities.
However, the Company may create additional classes of Junior Securities,
increase the authorized number of shares of any Junior Security or issue any
Junior Securities without the consent of any holder of the Convertible
Preferred. No such vote or consent of the holders of the Convertible Preferred
is required if, at or prior to the time when the issuance of any such Senior or
Parity Securities is to be made or any such change is to take effect, as the
case may be, provision is made for the redemption of all of the Convertible
Preferred at the time outstanding pursuant to the terms of the Convertible
Preferred.
The vote or consent of the holders of two-thirds of the outstanding shares
of Convertible Preferred, voting as a class, will be required to authorize an
amendment to the Certificate of Incorporation, whether or not such holders are
entitled to vote thereon by the Certificate of Incorporation, if the amendment
would increase or decrease the aggregate number of authorized shares of such
class, increase or decrease the par value of the shares of such class, or alter
or change the powers, preferences or special rights of the shares of such class
so as to affect them adversely.
CONVERSION. Shares of the Convertible Preferred will be convertible at any
time at the option of the holder thereof into such number of whole shares of
Common Stock as is equal to the aggregate liquidation preference of the shares
of Convertible Preferred surrendered for conversion divided by an initial
conversion price established by the Board of Directors, subject to adjustment as
described below. Upon the surrender of any shares of Convertible Preferred for
conversion, in lieu of issuing the Common Stock
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<PAGE>
issuable upon conversion of the Convertible Preferred, the Company may, at its
option, pay to the holder of such shares of Convertible Preferred an amount in
cash equal to the then Market Value (as defined below) of the number of shares
of Common Stock into which such shares of Convertible Preferred are then
convertible. Notwithstanding the foregoing, the Company's ability to redeem for
cash the Convertible Preferred surrendered for conversion is restricted under
the terms of the Company's existing credit facility and Notes. Holders of the
Convertible Preferred will not be entitled to any payment or adjustment on
account of accrued and unpaid dividends upon conversion of the Convertible
Preferred. Shares of Convertible Preferred surrendered for conversion during the
period after any dividend payment record date and prior to the corresponding
dividend payment date must be accompanied by payment of an amount equal to the
dividend payable on such shares on such dividend payment date. Shares of
Convertible Preferred called for redemption will not be convertible after the
close of business on the business day preceding the date fixed for redemption
unless the Company defaults in payment of the redemption price. No fractional
shares of Common Stock will be issued as a result of conversion, but, in lieu
thereof, an amount equal to Market Value of such fractional interest will be
paid in cash by the Company.
The initial conversion price per share of Common Stock will be subject to
adjustment (under formulae to be set forth in the Certificate of Designations
for the Convertible Preferred) in certain events, including: (i) the issuance of
Common Stock as a dividend or distribution on the Common Stock of the Company;
(ii) certain subdivisions and combinations of the Common Stock; (iii) the
issuance to all holders of Common Stock of certain rights or warrants to
purchase Common Stock at a price per share less than the then current market
price per share; and (iv) the distribution to all holders of Common Stock of
shares of capital stock of the Company (other than Common Stock) or evidences of
indebtedness of the Company or other assets (including securities, but excluding
those rights, warrants, dividends and distributions referred to above and
dividends and distributions in connection with the liquidation, dissolution or
winding-up of the Company or paid in cash). No adjustment of the conversion
price will be made until cumulative adjustments amount to one percent or more of
the conversion price as last adjusted, but any such adjustment that would
otherwise be required to be made shall be carried forward and taken into account
in any subsequent adjustment.
The Company from time to time may decrease the conversion price by any
amount for any period of at least 20 days, in which case the Company shall give
at least 15 days' notice of such decrease. At its option, the Company also may
make such other reduction in the conversion price as the Board of Directors
deems advisable to avoid or diminish any income tax to holders of Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
In the event of (i) any recapitalization or reclassification of shares of
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, as a result of a subdivision or
combination of the Common Stock), (ii) any consolidation or merger of the
Company with or into another person or any merger of another person into the
Company (other than a merger that does not result in a reclassification,
conversion, exchange or cancellation of Common Stock), (iii) any sale or
transfer of all or substantially all of the assets of the Company, or (iv) any
compulsory share exchange, pursuant to which any holders of Common Stock shall
be entitled to receive other securities, cash or other property, then
appropriate provision shall be made so that the holder of each share of
Convertible Preferred then outstanding shall have the right thereafter to
convert such share only into the kind and amount of the securities, cash or
other property that would have been receivable upon such recapitalization,
reclassification, consolidation, merger, sale, transfer or share exchange by a
holder of the number of shares of Common Stock issuable upon conversion of such
share of Convertible Preferred immediately prior to such recapitalization,
reclassification, consolidation, merger, sale, transfer or share exchange. The
company formed by such consolidation or resulting from such merger or that
acquires such assets or that acquires the Company's shares, as the case may be,
shall make provisions in its certificate or articles of incorporation or other
constituent document to establish such right. Such certificate or articles of
incorporation or other constituent document shall provide for adjustments that,
for events subsequent to the effective date of such certificate or articles of
incorporation or other constituent documents, shall be as nearly equivalent as
may be practicable to the relevant adjustments provided for in the preceding two
paragraphs and in this paragraph.
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Holders of shares of Convertible Preferred desiring to convert the same into
Common Stock must surrender the shares being converted, accompanied by a written
notice of conversion specifying the number (in whole shares) of shares of
Convertible Preferred to be converted and the name or names in which such holder
wishes the certficate or certificates for Common Stock to be issued. Each
conversion will be deemed to have been effected immediately prior to the close
of business on the date on which the Company receives such shares of Convertible
Preferred and notice. Such conversion shall be at the conversion price in effect
on such conversion date. Each holder of Common Stock issuable upon the
conversion of the Convertible Preferred will be deemed a holder of record of
Common Stock at the close of business on such date of conversion unless the
stock transfer books of the Company shall be closed on that date, in which event
at the close of business on the next succeeding day on which such stock transfer
books are open.
SPECIAL CONVERSION RIGHTS. The Convertible Preferred has a special
conversion right that becomes effective upon the occurrence of certain types of
significant transactions affecting ownership or control of the Company or the
market for the Common Stock. The purpose of the special conversion right is to
provide (subject to certain exceptions) partial loss protection upon the
occurrence of a Change of Control or a Fundamental Change (each as defined
below) at a time when the Market Value of the Common Stock issuable upon
conversion by a holder is less than the then prevailing conversion price. In
such situations, the special conversion right would, for a limited period,
reduce the then prevailing conversion price to the higher of the Market Value of
the Common Stock or a minimum conversion price equal to 80% of the reported sale
price of the Common Stock as of the latest practicable date prior to the date of
the final Prospectus respecting the Convertible Preferred, subject to certain
adjustments (and increase the equivalent conversion ratio accordingly).
Consequently, to the extent that the Market Value of the Common Stock is less
than the minimum conversion price, a holder will have a lesser degree of
protection from loss upon exercise of a special conversion right.
The special conversion right is intended to provide limited loss protection
to investors in certain circumstances, while not giving holders a veto power
over significant transactions affecting ownership or control of the Company.
Although the special conversion right may render more costly or otherwise
inhibit certain proposed transactions, its purpose is not to inhibit or
discourage takeovers or other business combinations.
Each holder of the Convertible Preferred will be entitled to a special
conversion right if a Change of Control or Fundamental Change occurs. However,
if the majority of the value of the consideration received in a transaction by
holders of Common Stock is Marketable Stock (as defined below) or if the holders
of Voting Stock (as defined below) of the Company hold a majority of the Voting
Stock of the Company's successor, the transaction will not be a Fundamental
Change, and holders of the Convertible Preferred will not have special
conversion rights as the result of that transaction.
A special conversion right will permit a holder of the Convertible
Preferred, at the holder's option during the 30-day period described in the
following paragraph, to convert all, but not less than all, the holder's
Convertible Preferred at a conversion price equal to the Special Conversion
Price (as defined below). A holder exercising a special conversion right will
receive Common Stock if a Change of Control occurs and, if a Fundamental Change
occurs, will receive the same consideration received for the number of shares of
Common Stock into which the holder's Convertible Preferred would have been
convertible at the Special Conversion Price. In either case, however, the
Company or its successor may, at its option, elect to pay the holder cash equal
to the Market Value of the number of shares of Common Stock into which the
holder's Convertible Preferred is convertible at the Special Conversion Price.
The Company will mail to each registered holder of the Convertible Preferred
a notice setting forth details of any special conversion right occasioned by a
Change of Control or Fundamental Change within 30 days after the event occurs. A
special conversion right may be exercised only within the 30-day period after
the notice is mailed and will expire at the end of that period. Exercise of a
special conversion right, to the extent permitted by law, is irrevocable, and
all the Convertible Preferred surrendered for conversion will be converted at
the end of the 30-day period mentioned in the preceding sentence. The Company,
in taking any
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action in connection with any Change of Control, Fundamental Change or related
special conversion right, will undertake to comply with all applicable federal
securities regulations including, to the extent applicable, Rules 13e-4 and
14e-1 under the Exchange Act.
The shares of Convertible Preferred that are not converted pursuant to a
special conversion right will continue to be convertible pursuant to the general
conversion rights described under the caption "-- Conversion" above.
The special conversion right is not intended to, and does not, protect
holders of the Convertible Preferred in all circumstances that might affect
ownership or control of the Company or the market for the Common Stock or that
might otherwise adversely affect the value of an investment in the Convertible
Preferred. The ability to control the Company may be obtained by a person even
if that person does not, as is required to constitute a Change of Control,
acquire more than 50% of the Company's voting power. The Company and the market
for the Common Stock may be affected by various transactions that do not
constitute a Fundamental Change. In particular, transactions involving the
transfer of substantially less than all of the Company's assets or the transfer
or conversion of less than 50% of the voting power may have a significant effect
on the Company and the market for the Common Stock, as could transactions in
which holders of Common Stock receive primarily Marketable Stock or in which
holders of Voting Stock (presently the Class B Stock) of the Company continue to
own a majority of the Voting Stock of the successor to the Company. In addition,
if the special conversion right does arise as the result of a Fundamental
Change, the special conversion right will allow a holder exercising a special
conversion right to receive the same type of consideration received by the
holders of Common Stock and, thus, the degree of protection afforded by the
special conversion right may be affected by the type of consideration received.
As used herein, a "Change of Control" with respect to the Company shall be
deemed to have occurred at the first time after the issuance of the Convertible
Preferred that (i) a majority of the Board of Directors of the Company, over a
two-year period, is replaced from the directors who constituted the Board of
Directors of the Company at the beginning of such period, which replacement
shall not have been approved by the Board of Directors of the Company (or
replacement directors approved by the Board of Directors of the Company), as
constituted at the beginning of such period, or (ii) a person or entity or group
of persons or entities acting in concert as a partnership or other group (other
than the DI affiliates (as defined below), any subsidiary of the Company, any
employee stock purchase plan, stock option plan or other stock incentive plan or
program, retirement plan or automatic reinvestment plan or any substantially
similar plan of the Company or any subsidiary of the Company or any person
holding securities of the Company for or pursuant to the terms of any such
employee benefit plan) shall, as a result of a tender or exchange offer, open
market purchases, privately negotiated purchases or otherwise, have become the
beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of
securities of the Company representing 50% or more of the combined voting power
of the then outstanding securities of the Company ordinarily (and apart from
rights accruing under special circumstances) having the right to vote in the
election of directors.
As used herein, the term "DI affiliates" means (i) Mr. Stanley H. Durwood,
his spouse and any of his lineal descendants and their respective spouses
(collectively the "Durwood Family"), (ii) any controlled affiliate of any member
of the Durwood Family and (iii) any trust solely for the benefit of one or more
members of the Durwood Family (whether or not any member of the Durwood Family
is a trustee of such trust).
As used herein, a "Fundamental Change" with respect to the Company means (i)
the occurrence of any transaction or event in connection with which (a) 66 2/3%
or more of the outstanding Common Stock or (b) securities of the Company
representing 50% or more of the combined voting power of the then outstanding
securities of the Company ordinarily (and apart from rights accruing under
special circumstances) having the right to vote in the election of directors is
exchanged for, converted into, acquired for or constitutes solely the right to
receive cash, securities, property or other assets (whether by means of an
exchange offer, liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise) or (ii) the conveyance, sale,
lease, assignment, transfer or other disposal of all or substantially all of the
Company's property, business or assets; provided, however, that a Fundamental
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Change will not be deemed to have occurred with respect to either of the
following transactions or events: (a) any transaction or event in which more
than 50% (by value as determined in good faith by the Board of Directors) of the
consideration received by holders of Common Stock consists of Marketable Stock
or (b) any consolidation or merger of the Company in which the holders of Voting
Stock of the Company immediately prior to such transaction own, directly or
indirectly, 50% or more of the Voting Stock of the sole surviving corporation
(or of the ultimate parent of such sole surviving corporation) outstanding at
the time immediately after such consolidation or merger. There is no established
meaning of what constitutes a sale of "all or substantially all" of a company's
property, business or assets. This uncertainty may make it difficult for a
holder to determine whether or not a Fundamental Change has occurred, and thus,
whether he is entitled to a special conversion right respecting the shares of
Convertible Preferred held by him.
As used herein, "Voting Stock" means, with respect to any person, capital
stock of such person, having general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or trustees of
such person (irrespective of whether or not at the time capital stock of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency). Because holders of Class B Stock presently are
entitled to elect more than 50% of the Company's Board of Directors, the Class B
Stock is presently the only Voting Stock of the Company for purposes of this
definition.
As used herein, "Special Conversion Price" means the higher of (i) the
Market Value of the Common Stock or (ii) a per share amount to be fixed by the
Board of Directors, which amount will be adjusted each time the conversion price
is adjusted so that the ratio of such amount to the conversion price, after
giving effect to any such adjustment, shall always be the same as the ratio of
such initial per share amount to the initial conversion price, without giving
effect to any such adjustment. As used herein, "Market Value" of the Common
Stock or any other Marketable Stock is the average of the last reported sales
prices of the Common Stock or such other Marketable Stock, as the case may be,
for the five trading days ending on the last trading day preceding the date of
the Fundamental Change or Change of Control.
As used herein, the term "Marketable Stock" means the Common Stock or common
stock of any corporation that is the successor to all or substantially all of
the business or assets of the Company as a result of a Fundamental Change or of
the ultimate parent of such successor, which is (or will, upon distribution
thereof, be) listed or quoted on the New York Stock Exchange, the American Stock
Exchange, the Nasdaq National Market or any similar system of automated
dissemination of quotations of securities prices in the United States.
OTHER MATTERS
The resolution that will be consented to by DI approving the Amendment will
provide that the Board of Directors may, with the consent of holders of a
majority of the outstanding Common Stock and Class B Stock, abandon the proposed
Amendment at any time before the proposed Amendment becomes effective if for any
reason the Board of Directors deems it advisable to do so.
Under Delaware law, the Company's stockholders are not entitled to appraisal
rights in connection with the Amendment.
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A registration statement with respect to the Convertible Preferred has been
filed with the Securities and Exchange Commission but has not yet become
effective. These securities may not be sold nor may offers to buy be accepted
prior to the time the registration statement becomes effective. This information
statement shall not constitute an offer to sell or the solicitation of an offer
to buy, nor shall there be any sale of these securities in any state in which
such offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such state. A written prospectus
relating to the Company's proposed Offering may be obtained from Donaldson,
Lufkin & Jenrette Securities Corporation, 140 Broadway, New York, New York
10005; Bear, Stearns & Co. Inc., 245 Park Avenue, New York, New York 10167; or
Smith Barney Shearson Inc., 1345 Avenue of the Americas, New York, New York
10105.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE
REQUESTED NOT TO SEND US A PROXY
By Order of the Board of Directors
Nancy L. Gallagher
SECRETARY
Kansas City, Missouri
January 28, 1994
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*EXHIBIT A*
*SET FORTH BELOW IS THE PROPOSED FORM OF THE RESTATED AND AMENDED
CERTIFICATE OF INCORPORATION OF AMC ENTERTAINMENT INC. PROVISIONS IN THE
EXISTING CERTIFICATE OF INCORPORATION THAT WILL BE ELIMINATED ARE PRECEDED AND
FOLLOWED BY THE "#" SIGN, AND PROVISIONS THAT WILL BE ADDED ARE UNDERLINED.*+
*PROPOSED RESTATED AND AMENDED* CERTIFICATE OF
INCORPORATION OF
AMC ENTERTAINMENT INC.
*AMC Entertainment Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "corporation"), does
hereby certify:*
*I.* *The corporation has issued and received payment for its stock.*
*II.* *The name of the corporation is AMC Entertainment Inc., which is
the name under which the corporation was originally incorporated. The
corporation's original Certificate of Incorporation was filed with the
Delaware Secretary of State on June 13, 1983.*
*III.* *This Restated and Amended Certificate of Incorporation was duly
adopted by the corporation's board of directors and stockholders in
accordance with *SectionSection242* and 245 of the Delaware General
Corporation Law. Written consent to the adoption hereof was given in
accordance with Section228 of the Delaware General Corporation Law. Written
notice of the action so taken in accordance with Section228 of the Delaware
General Corporation Law has been provided to all stockholders who did not
consent to the adoption hereof.*
*IV.* *The corporation's certificate of incorporation is hereby amended
and restated as follows:*
FIRST: The name of the corporation is AMC Entertainment Inc.
SECOND: The registered office of the corporation in the State of Delaware
is located at #100 West Tenth# *Corporation Trust Center, 1209 Orange* Street,
in the City of Wilmington, County of New Castle. The name of its registered
agent at such address is The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware General
Corporation Law.
FOURTH: *(a)* The aggregate number of shares of capital stock that the
corporation shall have authority to issue is 85,000,000 shares, consisting of
45,000,000 shares of Common Stock, par value 66 2/3 CENTS per share (the "Common
Stock"), 30,000,000 shares of Class B Stock, par value 66 2/3 CENTS per share
(the "Class B Stock"), and 10,000,000 shares of Preferred Stock, par value
66 2/3 CENTS per share (the "Preferred Stock").
#The outstanding shares of Cumulative Preferred Stock, 14% Series of 1988,
without par value, shall automatically and without further action have a par
value of 66 2/3 upon the effective date of this Amendment.#
*(b)* The board of directors is authorized to establish by resolution or
resolutions one or more series of the Preferred Stock, the number of shares of
each series, and the powers, preferences, rights, qualifications, limitations
and restrictions of each series of the Preferred Stock.
*(c)* The powers, preferences, rights, qualifications, limitations and
restrictions of the Common Stock and the Class B Stock are set forth below:
*(i)* #1.# DIVIDENDS. The holders of Common Stock and the holders of Class
B Stock shall receive, pro rata per share, such cash dividends, out of funds
legally available therefor, as from time to time may be declared *thereon* by
the board of directors.
*(ii)* #2.# STOCK DIVIDENDS, ETC. No stock dividend, stock split,
subscription right, combination, subdivision or exchange may be paid or issued
*to holders of Common Stock or the holders of Class B Stock* except in shares of
(or a right to subscribe to shares of) the same class, and only if such action
is taken at the same time with respect to the other class so that the number of
shares of #each class# *Common Stock and Class B Stock* outstanding (or subject
to a subscription right) is increased or decreased in like proportion. The
- ------------------------
+ For EDGAR filing, language that will be added is preceded and followed by the
"*" sign.
<PAGE>
corporation may not merge or consolidate unless the terms and conditions of the
merger or consolidation shall provide that all holders of Common Stock then
outstanding and all holders of Class B Stock then outstanding receive, pro rata
per share, consideration therein of equal value.
*(iii)* #3. LIQUIDATION. IN# *LIQUIDATION.* *Subject to such preferences
and rights on liquidation as may be granted by the board of directors in
resolutions establishing one or more series of Preferred Stock, in* the event of
any liquidation, dissolution, or winding up of the corporation, whether
voluntary or involuntary, the holders of shares of Common Stock then outstanding
and the holders of Class B Stock then outstanding shall receive, pro rata per
share, any remaining assets of the corporation available for distribution to its
stockholders.
*(iv)* #4.# CONVERSION.
*(A)* #(A)# OPTIONAL CONVERSION. Subject to and upon compliance with
the terms and provisions of this #Paragraph 4(a)# *paragraph (c)(iv)(A) of
Article Fourth*, each holder of Class B Stock shall be entitled at any time and
from time to time to convert all or any portion of such holder's shares of Class
B Stock into the same number of shares of Common Stock. Each conversion of
shares of Class B Stock into shares of Common Stock shall be effected by the
surrender of the certificate or certificates representing the shares to be
converted at the principal office of the Corporation at any time during normal
business hours, together with a written notice by the holder of such shares,
stating that such holder desires to convert such shares, or a stated number of
such shares, represented by such surrendered certificate or certificates into
shares of Common Stock, and the name or names (with addresses) and denominations
in which the certificate or certificates for shares to be issued in such
conversion shall be issued together with instructions for delivery thereof.
Promptly after such surrender and the receipt of such written notice, the
corporation will issue and deliver in accordance with such instructions
#(i)#*(1)* the certificate or certificates for the shares of Common Stock
issuable upon such conversion, and #(ii)#*(2)* a certificate representing the
number of shares of Class B Stock which were evidenced by the certificate or
certificates surrendered to the corporation in connection with such conversion
but which were not converted. Any such conversion shall be deemed to have been
effected as of the close of business on the date on which such certificate or
certificates shall have been surrendered and such notice shall have been
received by the corporation, and at such time the rights of such holder with
respect to the converted shares shall cease and the person or persons in whose
name or names the certificate or certificates for shares issued upon such
conversion are to be issued shall be deemed to have become the holder or holders
of the shares represented thereby.
*(B)* #(B)# AUTOMATIC CONVERSION. The holders of #a# Class B Stock
shall be entitled to vote at any annual meeting of stockholders or at a special
meeting called for such purpose or to consent thereto in writing with respect to
a resolution providing that a pro rata percentage of shares of Class B Stock of
each holder of record, as shall be specified in such resolution, shall be
automatically converted into and for all purposes shall be deemed to be the same
number of shares of Common Stock. Upon approval of such resolution by a majority
of the outstanding shares of Class B Stock or the receipt by the corporation of
a consent thereto signed by at least such a majority, the rights of each holder
to such percentage of shares of Class B Stock shall cease automatically, and the
holders thereof shall be entitled to all rights attendant to holders of such
shares of Common Stock.
*(C)* #(C)# NO CONVERSION CHARGES. Any issuance of certificates for
shares of Common Stock upon conversion (whether optional or automatic) of shares
of Class B *Stock* shall be made without charge to the holders of such shares
for any issuance tax in respect thereof or other cost incurred by the
corporation in connection with such conversion and the related issuance of
shares of Common Stock.
*(D)* #(D)# AVAILABLE COMMON STOCK. The corporation shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock, solely for the purpose of issue upon conversion of outstanding shares of
Class B Stock, such number of shares of Common Stock as shall then be issuable
upon a conversion of all of the outstanding shares of Class B Stock. The shares
of Common Stock so issuable shall, when so issued, be duly and validly issued,
fully paid and non-assessable.
*(v)* #5.# VOTING.
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*(A)* #(A)# GENERAL. Except as otherwise provided (1) by this
#Paragraph 5# *section (c)(v) of Article Fourth, (2) by the board of directors
in resolutions establishing one or more series of Preferred Stock,* or (3) by
law, the right to vote on all matters to be voted upon by the stockholders of
the corporation is vested in the holders of the outstanding shares of Common
Stock and Class B Stock, voting together as if a single class, with each
outstanding share of Common Stock having one vote per share for such purpose and
each outstanding share of Class B Stock having ten votes per share for such
purposes.
*(B)* #(B)# VOTE REGARDING AUTOMATIC CONVERSION. The holders of the
Class B Stock, having one vote #for# *per* share for such purpose, shall have
the exclusive right to vote with respect to an automatic conversion of Class B
Stock pursuant to #Paragraph 4(b)# *paragraph (c)(iv)(B) of Article Fourth*
hereof.
*(C)* #(C)# ELECTION OF DIRECTORS. The right to vote on the election of
directors of the corporation is subject to the following terms and conditions:
*(1)* #(i)# So long as any shares of Class B Stock shall be outstanding
(and not converted into shares of Common Stock pursuant to #paragraph 4#
*section (c)(iv) of Article Fourth* hereof), at any time that the holders of any
class of securities of the Corporation *generally having the right to vote in
the election of directors* shall take any action for the purpose of electing
directors, whether at an annual or special meeting of stockholders or otherwise,
the holders of the shares of Class B Stock then outstanding, voting separately
as a single class, with each outstanding share of Class B Stock having one vote
per share for such purpose, shall have the exclusive right to elect such number
of directors as shall equal 75% *of the members* of the board *of directors to
be elected by holders of shares generally having the right to vote in the
election* of directors; PROVIDED, HOWEVER, that if #the# *such* number of
directors is not an integral multiple of four, the holders of Class B Stock
shall have the exclusive right to elect such number of directors as shall equal
75% of the board *of directors to be elected by holders of shares generally
having the right to vote in the election* of directors with any fraction of
one-half or more rounded up and with any fraction of less than one-half
eliminated; and, PROVIDED FURTHER, HOWEVER, that so long as shares of Common
Stock are listed on the American Stock Exchange any such fraction shall be
eliminated. Notwithstanding anything herein to the contrary, in the event that
the total number of shares of Class B Stock outstanding is less than 12 1/2% of
the total number of shares of Class B Stock and Common Stock outstanding, then,
so long as shares of Common Stock are listed on the American Stock Exchange, the
right to elect the said 75% of the board of directors *to be elected by holders
of shares generally having the right to vote in the election of directors* shall
be vested in the holders of the outstanding shares of Common Stock and Class B
Stock, voting together as if a single class, with each outstanding share of
Common Stock having one vote per share for such purpose and each outstanding
share of Class B Stock having ten votes per share for such purpose.
*(2)* #(ii) The holders# *At any time that the holders of any class of
securities of the Corporation generally having the right to vote in the election
of directors shall take any action for the purpose of electing directors, the
holders* of the shares of Common Stock then outstanding, voting separately as a
single class, with each outstanding share of Common Stock having one vote per
share for such purpose, shall have the exclusive right to elect such number of
directors as shall equal 25% *of the members* of the board *of directors to be
elected by holders of shares generally having the right to vote in the election*
of directors; PROVIDED, HOWEVER, that if #the# *such* number of directors is not
an integral multiple of four, the holders of Common Stock shall have the
exclusive right to elect such number of directors as shall equal 25% of the
board *of directors to be elected by holders of shares generally having the
right to vote in the election* of directors with any fraction of more than
one-half rounded up and with any fraction of one-half or less eliminated; and
PROVIDED FURTHER, HOWEVER, that so long as shares of Common Stock are listed on
the American Stock Exchange any such fraction shall be rounded up.
(3) *The other provisions of this paragraph (c)(v) of Article Fourth
notwithstanding, the board of directors may provide special voting rights for
holders of Preferred Stock in resolutions establishing one or more series of
Preferred Stock. That number of directors authorized to be elected by holders of
Preferred Stock pursuant to such resolutions shall be in addition to that number
of directors provided for in the bylaws which are to be elected by holders of
stock generally having the right to vote in the election of directors.*
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(4) *Subject to voting rights granted by the board of directors in
resolutions establishing one or more series of Preferred Stock, in* #(iii) In#
the event that no shares of Class B Stock shall be outstanding (whether due to
any conversion pursuant to #Paragraph 4# *section (c)(iv) of Article Fourth* or
otherwise), the right to vote on the election of directors of the corporation is
vested exclusively in the holders of the outstanding shares of Common Stock,
with each outstanding share of Common Stock having one vote per share for such
purpose.
*(D)* #(D)# REMOVAL OF DIRECTORS. Any director elected pursuant to this
#Paragraph 5# *section (c)(v) of Article Fourth* may be removed either for or
without cause at any time by the affirmative vote of the holders of a majority
of all of the outstanding shares of the class of stock which elected such
director, at a special meeting of stockholders called for such purpose, and any
vacancy created by such removal may be filled, at such special meeting, by the
affirmative vote of the holders of a majority of all of the outstanding shares
entitled to vote on such removal; PROVIDED, HOWEVER, that if such director was
elected by the holders of the outstanding shares of Class B Stock and at or
prior to the time such special meeting is held no shares of Class B Stock shall
be outstanding (whether due to any conversion pursuant to #Paragraph 4# *section
(c)(iv) of Article Fourth* or otherwise), the affirmative vote of the holders of
a majority of all of the outstanding shares of Common Stock shall be required
for any such removal and the filling of any vacancy created by such removal.
*(E)* #(E)# VACANCIES. If prior to the end of the term of any director
#, a vacancy in the office of a director shall occur# *elected by the holders of
Common Stock or Class B Stock pursuant to this section (c)(v) of Article Fourth,
such director shall cease to be a director* by reason of death, resignation or
disability, #such# *the* vacancy *so created* shall be filled by the appointment
of a new director for the unexpired term of such former director by a majority
of the remaining directors elected by the holders of the same class of stock
which elected such former director or, as the case may be, by the sole remaining
director so elected; PROVIDED, HOWEVER, that if such former director was elected
by the holders of the outstanding shares of Class B Stock and at the time such
vacancy is created no shares of Class B Stock shall be outstanding (whether due
to any conversion pursuant to #Paragraph 4# *section (c)(iv) of Article Fourth*
or otherwise), such vacancy shall be filled by a majority of all the remaining
directors *elected by the holders of Common Stock and Class B Stock* or, as the
case may be, by the sole remaining director #. If either# *elected by* the
holders #of the shares# of Common Stock or *Class B Stock. If either the holders
of the shares of Common Stock or* the holders of the shares of Class B Stock
shall fail to elect such number of directors as such holders shall have the
right to elect pursuant to #this Paragraph 5# *section (c)(v)(C) of Article
Fourth,* the vacancy or vacancies created by such failure to elect may be filled
at any time prior to the end of the terms of the directors then in office by a
majority of the remaining directors elected by the holders of each such class
which so failed to elect, or as the case may be, by the sole remaining director
so elected; PROVIDED, HOWEVER, that if such vacancy or vacancies were created by
failure of the holders of outstanding shares of Class B Stock so to elect and at
the time such vacancy or vacancies are to be filled no shares of Class B Stock
shall be outstanding (whether due to any conversion pursuant to #Paragraph 4#
*section (c)(iv) of Article Fourth* or otherwise), such vacancy or vacancies
shall be filled by a majority of all of the remaining directors *elected by the
holders of Common Stock and Class B Stock* or, as the case may be, by the sole
remaining director *elected by the holders of Common Stock or Class B Stock.*
#6.#
*(F)* CERTAIN AMENDMENTS. The holders of the outstanding shares of #a
class# *Common Stock or Class B Stock* shall be entitled to vote separately as a
class upon any proposed amendment, if such amendment would increase or decrease
the aggregate number of authorized shares of such class, increase or decrease
the par value of the shares of such class, or alter or change the powers,
preferences or special rights of the shares of such class so as to affect them
adversely.
FIFTH: The business and affairs of the corporation shall be managed by or
under the direction of the board of directors, and the directors need not be
elected by ballot unless required by the by-laws of the corporation.
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SIXTH: In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the board of directors is expressly authorized to
make, amend and repeal the by-laws of the corporation.
SEVENTH: *(a)* Each person who was or is a party or is involuntarily made a
party threatened to be made a party to or is involuntarily involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative ("proceeding"), by reason of the fact that he or a person of whom
he is the legal representative is or was a director or officer of the
corporation or is or was serving at the request of the corporation as a director
or officer of another corporation, or as its representative in a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer or representative or in any other
capacity while serving as a director, officer or representative, shall be
indemnified and held harmless by the corporation to the fullest extent permitted
by the Delaware General Corporation law, as the same exists or may hereafter be
amended, against all expenses, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by him in connection therewith.
Such right shall be a contract right and shall include the right to be paid by
the corporation expenses incurred in defending any such proceeding in advance of
its final disposition upon delivery to the corporation of an undertaking, by or
on behalf of such person, to repay all amounts so advanced if it should be
determined ultimately that such person is not entitled to be indemnified under
this #section# *Article Seventh* or otherwise.
*(b)* If a claim under this #section# *Article Seventh* is not paid in full
by the corporation within ninety days after a written claim has been received by
the corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and if successful, in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking
has been tendered to the corporation) that the claimant has not met the
standards of conduct which make it permissible under the Delaware General
Corporation Law for the corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the corporation.
Neither the failure of the corporation (including its board of directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the corporation (including its board of directors, independent
legal counsel, or its stockholders) that the claimant had not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that claimant had not met the applicable standard of conduct.
*(c)* The rights conferred by this #section# *Article Seventh* shall not be
exclusive of any other right which such persons may have or hereafter acquire
under any statute, provision, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
*(d)* The corporation may maintain insurance, at its expense, to protect
itself and any such director, officer, or representative against any such
expense, liability or loss, whether or not the corporation would have the power
to indemnify him against such expense, liability or loss under the Delaware
General Corporation Law.
EIGHTH: The corporation reserves the right to amend and repeal any
provision contained in this Certificate of Incorporation in the manner from time
to time prescribed by the laws of the State of Delaware. All rights herein
conferred are granted subject to this reservation.
NINTH: #The incorporator is Mark B. Goldfus, whose mailing address is P.O.
Box 1347, Wilmington, Delaware 19899.#
#TENTH:# A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability #(i)#*(a)* for
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<PAGE>
any breach of the director's duty of loyalty to the corporation or its
stockholders, #(ii)#*(b)* for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, #(iii)#*(c)* under
Section 174 of the *Delaware* General Corporation Law #of the State of Delaware,
or (iv)#*, or (d)* for any transaction from which the director derived an
improper personal benefit. If the *Delaware* General Corporation Law #of the
State of Delaware# is amended to authorize the further elimination or limitation
of the personal liability of a director, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent permitted by
the *Delaware* General Corporation Law #of the State of Delaware#, as amended.
No amendment to or repeal of this Article #TENTH# *Ninth* shall apply to or have
any effect on the liability or alleged liability of any director of the
corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
#I, THE UNDERSIGNED, being the incorporator for the purpose of forming a
corporation under the laws of the State of Delaware do make, file and record
this# *IN WITNESS WHEREOF, AMC Entertainment Inc. has caused this Restated and
Amended* Certificate of Incorporation #, do certify that the facts herein stated
are true, and, accordingly, have hereto set my hand and seal this 13th day of
June, 1983.# *to be signed this day of , 1994.*
#/s/ Mark B. Goldfus (SEAL)#*(Corporation Seal)* *AMC ENTERTAINMENT INC.*
#Mark B. Goldfus# *By:*
-----------------------------------------------------------------
*Stanley H. Durwood
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER*
*ATTEST:*
*By:*
- -------------------------
*Nancy L. Gallagher
Secretary*
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