UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(mark one)
[ X ] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended December 26, 1996
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from __________ to __________
Commission File Number 01-12429
AMC ENTERTAINMENT INC.
(Exact name of registrant as specified in its charter)
Delaware 43-1304369
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
106 West 14th Street
Kansas City, Missouri 64105-1977
(Address of principal executive offices) (Zip Code)
(816) 221-4000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes x No ________
Number of Shares Outstanding
Title of Each Class of Common Stock as of December 26, 1996
Common Stock, 66 2/3 cents par value 6,549,489
Class B Stock, 66 2/3 cents par value 11,157,000
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
INDEX
Page Number
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Consolidated Statements of Operations 3
Consolidated Balance Sheets 4
Consolidated Statements of Cash Flows 5-6
Notes to Consolidated Financial Statements 7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS 8-15
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS 16
ITEM 4. SUBMISSION OF MATTERS TO A VOTE
OF SECURITY HOLDERS 17
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 18
SIGNATURES 19
<PAGE>
<TABLE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share amounts)
<CAPTION>
Thirteen Thirty-nine
Weeks Ended Weeks Ended
December 26, December 28,December 26,December 28,
1996 1995 1996 1995
---- ---- ---- ----
(Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
Revenues
Admissions $104,588 $100,944 $344,699 $ 324,737
Concessions 47,584 45,484 159,355 148,323
Other 11,020 8,542 23,501 19,801
-------- -------- -------- --------
Total revenues 163,192 154,970 527,555 492,861
Expenses
Film rentals 52,752 50,761 177,340 166,054
Concession merchandise 8,195 7,218 26,275 22,891
Other 69,017 59,706 213,912 182,475
-------- -------- -------- --------
Total cost
of operations 129,964 117,685 417,527 371,420
Depreciation and
amortization 13,129 10,399 37,543 30,842
General and
administrative expenses 14,410 12,004 39,933 38,086
-------- -------- -------- --------
Total expenses 157,503 140,088 495,003 440,348
-------- -------- -------- --------
Operating income 5,689 14,882 32,552 52,513
Other expense (income)
Interest expense
Corporate borrowings 3,044 5,259 7,657 16,404
Capitalized leases 2,231 2,624 7,379 8,106
Investment income (343) (1,958) (664) (6,624)
Loss (gain) on
disposition of assets 53 (159) 84 (21)
-------- -------- -------- --------
Earnings before income taxes
and extraordinary item 704 9,116 18,096 34,648
Income tax provision 285 3,800 7,285 14,300
-------- -------- -------- --------
Net earnings before
extraordinary item 419 5,316 10,811 20,348
Extraordinary item
- Loss on early
extinguishment of debt
(net of income tax
benefit of $13,400) - (19,350) - (19,350)
-------- -------- -------- --------
Net earnings (loss) $ 419 $(14,034) $ 10,811 $ 998
======== ======== ======== ========
Preferred dividends 1,454 1,750 4,454 5,250
-------- -------- -------- --------
Net earnings (loss)
for common shares $ (1,035) $(15,784) $ 6,357 $ (4,252)
======== ======== ======== ========
Earnings (loss) per
share before
extraordinary item:
Primary $(.06) $ .21 $ .36 $ .90
======= ========= ======= =========
Fully diluted $(.06) $ .21 $ .36 $ .89
======== ========= ======= ========
Earnings (loss) per share:
Primary $(.06) $(.93) $ .36 $ (.25)
======== ======== ======== ========
Fully diluted $(.06) $(.93) $ .36 $ (.25)
======== ======== ======== ========
See Notes to Consoldidated Financial Statements.
</TABLE>
<PAGE>
<TABLE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except share amounts)
<CAPTION>
December 26, March 28,
1996 1996
---- ----
(Unaudited)
ASSETS
<S> <C> <C>
Current assets:
Cash and equivalents $ 18,436 $ 10,795
Receivables, net of allowance
for doubtful accounts of
$806 as of December 26, 1996, and $801
as of March 28, 1996 27,967 20,503
Other current assets 15,755 15,179
-------- --------
Total current assets 62,158 46,477
Property, net 487,326 355,485
Intangible assets, net 32,250 36,483
Other long-term assets 58,006 45,013
-------- --------
Total assets $639,740 $483,458
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 57,433 $ 59,353
Accrued expenses and other liabilities 46,315 43,319
Current maturities of corporate borrowings and
capital lease obligations 3,417 2,904
-------- --------
Total current liabilities 107,165 105,576
Corporate borrowing 271,112 126,127
Capital lease obligations 56,172 59,141
Other long-term liabilities 40,579 33,696
-------- --------
Total liabilities 475,028 324,540
Stockholders' equity:
Cumulative Convertible Preferred Stock;
3,323,600 shares issued and outstanding
as of December 26, 1996 and
4,000,000 shares issued and outstanding
as of March 28, 1996 (aggregate liquidation
preference of $83,090 as of
December 26, 1996, and $100,000
as of March 28, 1996) 2,216 2,667
Common Stock; 6,569,989 shares issued as of
December 26, 1996, and 5,388,880 shares
issued as of March 28, 1996 4,380 3,593
Convertible Class B Stock; 11,157,000 shares
issued and outstanding 7,438 7,438
Additional paid-in-capital 107,791 107,986
Foreign currency translation adjustment (619) -
Retained earnings 43,875 37,603
-------- --------
165,081 159,287
Less - Common Stock in treasury, at cost,
20,500 shares as of December 26, 1996
and March 28, 1996 369 369
-------- --------
Total stockholders' equity 164,712 158,918
-------- --------
Total liabilities and stockholders' equity $639,740 $483,458
======== ========
See Notes to Consoldidated Financial Statements.
</TABLE>
<PAGE>
<TABLE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
<CAPTION>
Thirty-nine
Weeks Ended
December 26, December 28,
1996 1995
---- ----
<S> <C> <C>
(Unaudited)
INCREASE (DECREASE) IN CASH AND EQUIVALENTS
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings $ 10,811 $ 998
Adjustments to reconcile net earnings to
net cash provided by operating activities:
Depreciation and amortization 37,543 30,842
Loss (gain) on sale of other long-term assets 84 (21)
Extraordinary item - 19,350
Change in assets and liabilities:
Receivables (7,464) (10,144)
Other current assets (576) 3,737
Accounts payable 7,012 9,400
Accrued expenses and other liabilities 8,891 4,517
Other, net 274 2,887
-------- --------
Total adjustments 45,764 60,568
-------- --------
Net cash provided by operating activities 56,575 61,566
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (163,645) (72,496)
Purchase of real estate held for sale (7,692) -
Purchases of available for sale investments - (424,134)
Proceeds from maturities of available for
sale investments - 493,278
Proceeds from disposition of other
long-term assets 1,129 949
Other, net (8,678) (6,790)
-------- --------
Net cash used in investing activities (178,886) (9,193)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Repurchase of Senior and Senior
Subordinated Notes - (220,734)
Net borrowings under revolving
credit facility 145,000 130,000
Principal payments under capital
lease obligations and other (2,119) (2,243)
Cash overdrafts (8,133) -
Proceeds from exercise of stock options 141 878
Dividends paid on preferred stock (4,539) (5,250)
Deferred financing costs and other - (3,570)
-------- --------
Net cash provided by (used in)
financing activities 130,350 (100,919)
-------- --------
Effect of exchange rate changes on
cash and equivalents (398) -
-------- --------
NET INCREASE (DECREASE) IN CASH AND EQUIVALENTS 7,641 (48,546)
CASH AND EQUIVALENTS AT BEGINNING OF PERIOD 10,795 71,233
-------- --------
CASH AND EQUIVALENTS AT END OF PERIOD $ 18,436 $ 22,687
======== ========
</TABLE>
<PAGE>
<TABLE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
<CAPTION>
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Thirty-nine
Weeks Ended
December 26, December 28,
1996 1995
---- ----
(Unaudited)
<S> <C> <C>
Cash paid during the period for:
Interest (net of amounts capitalized
of $1,955 and $2,260) $ 16,134 $ 29,291
Income taxes paid 5,327 9,295
See Notes to Consoldidated Financial Statements.
</TABLE>
<PAGE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 26, 1996
(Unaudited)
NOTE 1 - BASIS OF PRESENTATION
AMC Entertainment Inc. ("AMCE") is a holding company which, through
its direct and indirect subsidiaries, including American Multi-Cinema, Inc.
("AMC") and its subsidiaries (collectively with AMCE, unless the context
otherwise requires, the "Company"), is principally involved in the operation
of motion picture theatres throughout the United States and in Japan and
Portugal. The Company is also involved in the business of providing on-screen
advertising and other services to AMC and other theatre circuits through a
wholly-owned subsidiary, National Cinema Network, Inc. ("NCN").
The accompanying unaudited consolidated financial statements have been
prepared in response to the requirements of Form 10-Q and should be read in
conjunction with the Company's annual report on Form 10-K for the year (52
weeks) ended March 28, 1996. In the opinion of management, these interim
financial statements reflect all adjustments (consisting of normal recurring
adjustments) necessary for a fair presentation of the Company's financial
position and results of operations. Due to the seasonal nature of the
Company's business, results for the thirty-nine weeks ended December 26, 1996,
are not necessarily indicative of the results to be expected for the fiscal
year (53 weeks) ending April 3, 1997.
The year-end consolidated balance sheet data was derived from audited
financial statements, but does not include all disclosures required by
generally accepted accounting principles.
Certain amounts have been reclassified from prior period consolidated
financial statements to conform with the current year presentation.
NOTE 2 - EARNINGS PER SHARE
Primary earnings per share is computed by dividing net earnings less
preferred dividends by the sum of the weighted average number of common shares
outstanding and outstanding stock options, when their effect is dilutive. The
average shares used in the computations were 17,706,000 and 17,659,000 for the
thirteen and thirty-nine weeks ended December 26, 1996, respectively, and
16,902,000 and 16,795,000 for the thirteen and thirty-nine weeks ended
December 28, 1995. On a fully diluted basis, net earnings and shares
outstanding are adjusted to assume conversion of the Cumulative Convertible
Preferred Stock, if dilutive. The average shares used in the computations
were 17,706,000 and 17,861,000 for the thirteen and thirty-nine weeks ended
December 26, 1996, respectively, and 16,939,000 and 16,922,000 for the
thirteen and thirty-nine weeks ended December 28, 1995, respectively.
NOTE 3 - MERGER WITH PARENT
In May 1996, the Company announced that it was negotiating with its
majority stockholder, Durwood, Inc. ("DI"), to merge DI into the Company with
the Company remaining as the surviving entity. As currently proposed,
stockholders of DI would exchange their shares of DI stock for shares of the
Company's stock. Although the outstanding shares of the Company's Common
Stock will increase and the outstanding shares of its Class B Stock will
decrease if the merger is effected, no aggregate increase in total outstanding
shares is expected because the shares of the Company owned by DI will be
canceled and the shares of the Company held by other stockholders would not
be exchanged in the merger. The Company has appointed a special committee of
non-management directors to consider and negotiate the proposed merger. A
condition to the transaction will be that it be approved by the holders of a
majority of the shares of Common Stock, other than DI, members of the Durwood
family and officers and directors of the Company.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
Operating Results
Set forth in the table below is a summary of revenues, cost of
operations, depreciation and amortization, and general and administrative
expenses attributable to the Company's domestic and international theatrical
exhibition operations and the Company's on-screen advertising business.
<TABLE>
<CAPTION>
Thirteen Weeks Ended Thirty-nine Weeks Ended
12/26/96 12/28/95 % Change 12/26/96 12/28/95 % Change
-------- --------- -------- -------- -------- --------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
REVENUES
Domestic
Admissions $101,962 $100,944 1.0% $337,528 $324,737 3.9%
Concessions 47,198 45,484 3.8 158,322 148,323 6.7
Other 6,846 5,293 29.3 12,549 10,691 17.4
-------- -------- ----- -------- -------- -----
156,006 151,721 2.8 508,399 483,751 5.1
International
Admissions 2,626 - - 7,171 - -
Concessions 386 - - 1,033 - -
Other - - - 2 - -
-------- -------- ----- -------- -------- -----
3,012 - - 8,206 - -
On-screen advertising
and other 4,174 3,249 28.5 10,950 9,110 20.2
-------- -------- ----- -------- -------- -----
Total revenues $163,192 $154,970 5.3% $527,555 $492,861 7.0%
======== ======== ===== ======== ======== =====
COST OF OPERATIONS
Domestic
Film rentals $ 51,176 $ 50,761 0.8% $173,009 $166,054 4.2%
Concession merchandise 8,037 7,218 11.3 25,966 22,891 13.4
Rent 18,475 15,759 17.2 54,288 47,979 13.1
Other 45,775 42,180 8.5 145,582 128,974 12.9
-------- -------- ----- -------- -------- -----
123,463 115,918 6.5 398,845 365,898 9.0
International
Film rentals 1,576 - - 4,331 - -
Concession merchandise 158 - - 309 - -
Rent 1,176 - - 3,222 - -
Other 1,053 - - 3,290 - -
-------- -------- ----- -------- -------- -----
3,963 - - 11,152 - -
On-screen advertising
and other 2,538 1,767 43.6 7,530 5,522 36.4
-------- -------- ----- -------- -------- -----
Total cost of
operations $129,964 $117,685 10.4% $417,527 $371,420 12.4%
======== ======== ===== ======== ======== =====
DEPRECIATION AND
AMORTIZATION
Domestic and
corporate $ 12,445 $ 10,203 22.0% $ 35,618 $ 29,940 19.0%
International 237 - - 647 - -
On-screen advertising
and other 447 196 128.1 1,278 902 41.7
-------- -------- ----- -------- -------- -----
Total depreciation
and amortization $ 13,129 $ 10,399 26.3% $ 37,543 $ 30,842 21.7%
======== ======== ===== ======== ======== =====
GENERAL AND ADMINISTRATIVE
Domestic and
corporate $ 10,887 $9,566 13.8% $ 30,452 $ 31,799 (4.2)%
International 1,952 1,071 82.3 4,890 2,756 77.4
On-screen advertising
and other 1,571 1,367 14.9 4,591 3,531 30.0
-------- -------- ----- -------- -------- -----
Total general and
administrative
expenses $ 14,410 $ 12,004 20.0% $ 39,933 $ 38,086 4.8%
======== ======== ===== ======== ======== =====
</TABLE>
<PAGE>
Thirteen Weeks Ended December 26, 1996 and December 28, 1995
Revenues
Total revenues increased 5.3%, or $8,222,000, during the thirteen weeks
ended December 26, 1996 compared to the thirteen weeks ended December 28,
1995.
Total domestic revenues increased 2.8% from the prior year. Admissions
revenues increased 1.0% due to a 2.9% increase in average ticket prices, which
was partially offset by a 1.8% decrease in attendance. The decrease in
attendance during the period occurred primarily as a result of a decrease in
attendance at same theatres (theatres opened prior to the third quarter of
fiscal 1996), which caused a 12.9% decrease in admissions revenues at same
theatres. Additionally, attendance decreased due to closed theatres.These
decreases in attendance were partially offset by attendance at new theatres,
primarily megaplexes. The decline in attendance at same theatres was due to
competitive factors and a lack of popular films from the Company's key
suppliers when compared to the prior year. Concessions revenues increased by
3.8% due to a 5.7% increase in average concessions per patron, which was
partially offset by the decrease in total attendance. The increase in average
concessions per patron is attributable to higher consumption at new megaplex
theatres and new concession products.
Total international revenues were the result of admissions and
concessions revenues from the Company's first theatre in Japan, the Canal City
13 located in Fukuoka, Japan, which opened during the first quarter of fiscal
1997. Admissions and concessions revenues accounted for 87% and 13% of total
international revenues, respectively.
On-screen advertising and other revenues increased 28.5% due primarily
to an increase in revenues generated by the Company's on-screen advertising
business, which resulted from an increase in the number of screens served.
Cost of Operations
Total cost of operations increased 10.4%, or $12,279,000, during the
thirteen weeks ended December 26, 1996 compared to the thirteen weeks ended
December 28, 1995.
Total domestic cost of operations increased 6.5% from the prior year.
Film rentals expense increased .8% due to higher admissions revenues. As a
percentage of admissions revenues, film rentals expense decreased from 50.3%
to 50.2%. The 11.3% increase in concession merchandise expense is
attributable to the increase in concessions revenues. As a percentage of
concessions revenues, concession merchandise expense increased from 15.9% to
17.0% due primarily to increases in raw popcorn costs and lower margins on
new concession products. Rent expense increased 17.2% due to the higher
number of screens in operation. Other cost of operations increased 8.5% from
the same period in the prior year due to the higher number of screens in
operation, $408,000 of advertising expenses associated with the opening of new
theatres and higher expenses associated with the Company's theatre management
development program.
Total international cost of operations were the result of expenses
associated with the Company's theatre in Japan. As a percentage of admissions
revenues, film rentals expense was 60.0% because film rentals in Japan are
generally higher than those domestically. Concession merchandise expense
was 40.9% of concessions revenues due to the high procurement costs of
concession products sourced from the United States. As a percentage of total
revenues, rent expense was 39.0% as a result of low attendance and admissions
revenues and the higher real estate costs in Japan.
On-screen advertising and other cost of operations increased 43.6% as a
result of the higher number of screens served and related start-up expenses.
Depreciation and Amortization
Depreciation and amortization increased 26.3%, or $2,730,000, during the
thirteen weeks ended December 26, 1996. This increase resulted from an
increase in employed theatre assets resulting from the Company's expansion
program.
General and Administrative Expenses
General and administrative expenses increased 20.0%, or $2,406,000,
during the thirteen weeks ended December 26, 1996.
General and administrative expenses associated with domestic and
corporate increased 13.8% primarily due to costs to investigate and pursue
potential new theatre sites which the Company has subsequently decided not to
pursue further.
International general and administrative expenses increased 82.3% due
primarily to payroll, rent and other expenses to support the Company's
international operations and costs associated with the Company's international
expansion program.
General and administrative expenses associated with on-screen advertising
and other increased 14.9% due primarily to an increase in payroll and
related costs.
Operating Income
Operating income decreased 61.8%, or $9,193,000, during the thirteen
weeks ended December 26, 1996. Operating income decreased due to a reduction
in operating income from same theatres, which was partially offset by an
increase in operating income from new theatres, primarily megaplexes, added
to the domestic circuit. Additionally, operating income was reduced by
operating losses from the Company's theatre in Japan, operating losses from
the Company's on-screen advertising business and increased general and
administrative expenses related to the Company's domestic and international
expansion program.
Interest Expense
Interest expense decreased 33.1%, or $2,608,000, during the thirteen
weeks ended December 26, 1996 compared to the prior year. The decrease in
interest expense resulted from lower rates under the Company's new Credit
Facility, which was partially offset by an increase in average outstanding
borrowings related to the Company's expansion program.
Investment Income
Investment income decreased 82.5%, or $1,615,000, during the thirteen
weeks ended December 26, 1996 due to a decrease in outstanding cash and
investments compared to the same period in the prior year. Cash and
investments decreased as a result of the Company's redemption of substantially
all of its 11 7/8% Senior Notes due 2000 (the "Senior Notes") and 12 5/8%
Senior Subordinated Notes due 2002 (the "Senior Subordinated Notes") on
December 28, 1995.
Net Earnings
Net earnings before extraordinary item decreased $4,897,000 during the
thirteen weeks ended December 26, 1996 to $419,000 from $5,316,000 in the
previous year. Net earnings for the period were $419,000 compared to a loss
of $14,034,000 in the previous year, which included an extraordinary item, a
loss of $19,350,000 in connection with the early extinguishment of debt. Net
earnings before extraordinary item per common share, after deducting preferred
dividends, was a loss of $.06 compared to earnings of $.21 for the same period
in the previous year. Net earnings per common share, after deducting
preferred dividends, was a loss of $.06 compared to a loss of $.93 for the
same period in the previous year.<PAGE>
Thirty-nine Weeks Ended December 26, 1996 and December 28, 1996
Revenues
Total revenues increased 7.0%, or $34,694,000, during the thirty-nine
weeks ended December 26, 1996 compared to the thirty-nine weeks ended December
28, 1995.
Total domestic revenues increased 5.1% from the prior year. Admissions
revenues increased 3.9% due to a 3.5% increase in average ticket prices and
a .4% increase in attendance. Attendance and admissions revenue increased
during the period due to the addition of new theatres, primarily megaplexes.
This increase in attendance from new theatres was partially offset by a
decrease in attendance at same theatres (theatres opened prior to fiscal 1996)
which caused a 9.7% decrease in admissions revenues at same theatres.
Additionally, attendance decreased due to closed theatres. The decline in
attendance at same theatres was due to competitive factors and a lack of
popular films from the Company's key suppliers when compared to the prior
year. Concessions revenues at domestic theatres increased by 6.7% due to a
6.3% increase in average concessions per patron and the increase in total
attendance. The increase in average concessions per patron is attributable
to higher consumption at new megaplex theatres and new concession products.
Total international revenues were the result of admissions and
concessions revenues from the Company's first theatre in Japan, the Canal City
13 located in Fukuoka, Japan, which opened during the first quarter of fiscal
1997. Admissions and concessions revenues accounted for 87% and 13% of total
international revenues, respectively. The Company's initial attendnace
was negatively impacted by film distributors in Japan who restricted the
Company's ability to obtain film product until approximately two weeks
after its competitors had received it. This delay in releasing films to
the Company has generally been eliminated.
On-screen advertising and other revenues increased 20.2% due primarily
to an increase in revenues generated by the Company's on-screen advertising
business, which resulted from an increase in the number of screens served.
Cost of Operations
Total cost of operations increased 12.4%, or $46,107,000, during the
thirty-nine weeks ended December 26, 1996 compared to the thirty-nine weeks
ended December 28, 1995.
Total domestic cost of operations increased 9.0% from the prior year.
Film rentals expense increased 4.2% due to higher admissions revenues. As a
percentage of admissions revenues, film rentals expense increased from 51.1%
to 51.3%. The 13.4% increase in concession merchandise expense is
attributable to the increase in concessions revenues.As a percentage of
concessions revenues, concession merchandise expense increased from 15.4% to
16.4% due primarily to increases in raw popcorn costs and lower margins on new
concession products. Rent expense increased 13.1% due to the higher number
of screens in operation. Other cost of operations increased 12.9% from the
same period in the prior year due to the higher number of screens in
operation, $1,921,000 of advertising expenses associated with the opening of
new theatres and higher expenses associated with the Company's theatre
management development program.
Total international cost of operations were the result of expenses
associated with the Company's theatre in Japan. As a percentage of admissions
revenues, film rentals expense was 60.4% because film rentals in Japan are
generally higher than those domestically. Concession merchandise expense was
30.0% of concessions revenues due to the high procurement costs of concession
products sourced from the United States. As a percentage of total revenues,
rent expense was 39.3% as a result of low attendance and admissions revenues
and the higher real estate costs in Japan.
On-screen advertising and other cost of operations increased 36.4% as a
result of the higher number of screens served and related start-up expenses.
Depreciation and Amortization
Depreciation and amortization increased 21.7%, or $6,701,000, during the
thirty-nine weeks ended December 26, 1996. This increase resulted from an
increase in employed theatre assets resulting from the Company's expansion
program.
General and Administrative Expenses
General and administrative expenses increased 4.8%, or $1,847,000, during
the thirty-nine weeks ended December 26, 1996.
General and administrative expenses associated with domestic and
corporate decreased 4.2% primarily due to a decrease in the current year's
bonus expense related to the decline in the Company's operating performance
and severance payments for two former executive officers during the prior
year. These decreases in general and administrative expenses were partially
offset by increased expenses related to the Company's expansion program.
International general and administrative expenses increased 77.4% due
primarily to payroll, rent and other expenses to support the Company's
international operations and costs associated with the Company's international
expansion program.
General and administrative expenses associated with on-screen
advertising and other increased 30.0% due primarily to an increase in payroll
and related costs.
Operating Income
Operating income decreased 38.0%, or $19,961,000, during the thirty-nine
weeks ended December 26, 1996. Operating income decreased due to a reduction
of operating income from same theatres, which was partially offset by an
increase in operating income from new theatres, primarily megaplexes, added
to the domestic circuit, and a decrease in domestic and corporate general and
administrative expenses. Additionally, operating income was reduced by
operating losses from the Company's theatre in Japan, increases in
international general and administrative expenses and operating losses from
the Company's on-screen advertising business.
Interest Expense
Interest expense decreased 38.7%, or $9,474,000, during the thirty-nine
weeks ended December 26, 1996 compared to the prior year. The decrease in
interest expense resulted from lower rates under the Company's new Credit
Facility, which was partially offset by an increase in average outstanding
borrowings related to the Company's expansion program.
Investment Income
Investment income decreased 90.0%, or $5,960,000, during the thirty-nine
weeks ended December 26, 1996 due to a decrease in outstanding cash and
investments compared to the same period in the prior year. Cash and
investments decreased as a result of the Company's redemption of its Senior
Notes and Senior Subordinated Notes on December 28, 1995.
Net Earnings
Net earnings before extraordinary item decreased $9,537,000 during the
thirty-nine weeks ended December 26, 1996 to $10,811,000 from $20,348,000 in
the previous year. Net earnings for the period were $10,811,000 compared to
$998,000 in the previous year, which included an extraordinary item, a loss
of $19,350,000 in connection with the early extinguishment of debt. Net
earnings before extraordinary item per common share, after deducting preferred
dividends, was $.36 compared to earnings of $.90 for the same period in the
previous year. Net earnings per common share, after deducting preferred
dividends, was $.36 compared to a loss of $.25 for the same period in the
previous year.<PAGE>
Liquidity and Capital Resources
The forward looking statements included in this section, which reflect
management's best judgment based on factors currently known, involve risks and
uncertainties. Actual results could differ materially from those anticipated
in the forward-looking statements included herein as a result of a number of
factors, including but not limited to the Company's ability to enter into
various financing programs, competition from other companies, changes in
economic climate, increase in demand for real estate, demographic changes,
changes in real estate, zoning and tax laws, the performance of films licensed
by the Company and other risks and uncertainties.
The Company's revenues are collected in cash, principally through box
office admissions and theatre concession sales. The Company has an operating
"float" which partially finances its operations and which generally permits
the Company to maintain a smaller amount of working capital capacity. This
float exists because admissions revenues are received in cash, while
exhibition costs (primarily film rentals) are ordinarily paid to distributors
from 30 to 45 days following receipt of box office admission revenues. The
Company is only occasionally required to make advance payments or
non-refundable guarantees of film rentals. Film distributors generally
release films which they anticipate will be the most successful during the
summer and holiday seasons. Consequently, the Company typically generates
higher revenues during such periods. Cash flows from operating activities,
as reflected in the Consolidated Statements of Cash Flows, was $56,575,000 and
$61,566,000 for the thirty-nine weeks ended December 26, 1996 and December 28,
1995, respectively.
During the current fiscal year, the Company continued its current
expansion program by opening 12 leased theatres with 200 screens, one owned
theatre with 30 screens and one theatre with 24 screens leased pursuant to a
ground lease. Included in these openings is the Company's first theatre in
Japan, the Canal City 13 in Fukuoka, Japan, and the Company's first theatre
in Portugal, the Arrabida 20 in Porto, Portugal which opened in late December.
In addition, the Company closed 7 leased theatres with 37 screens, resulting
in a circuit total of 1,936 screens in 233 theatres as of December 26, 1996.
The Company has under construction 7 new leased theatre locations totaling 120
screens, 3 new owned theatres with 70 screens, 1 theatre with 24 screens
leased pursuant to a ground lease and additions to 3 existing theatres for 22
new screens. All of these theatres and screens will be located in the United
States.
For the thirty-nine weeks ended December 26, 1996, the Company had
capital expenditures of $163,645,000, primarily for the development of new
theatres and the addition of screens at existing locations. The Company has
plans to open approximately 725 screens over the next fifteen months. If
these planned screens are opened as scheduled, the Company estimates that
total capital expenditures for the balance of fiscal 1997 will aggregate
approximately $84 million and for fiscal 1998 will aggregate approximately
$425 million. Included in these amounts are assets which the Company
anticipates placing into sale/leaseback or other comparable financing
programs which will have the effect of reducing the Company's net cash outlays
(see discussion below).
On December 28, 1995, the Company completed the redemption of
substantially all of its Senior Notes and Senior Subordinated Notes and
entered into a new loan agreement (the "Refinancing Plan"). The Company
redeemed $99,383,000 of its Senior Notes at a total price of $1,117.90 per
$1,000 principal amount and $95,096,000 of its outstanding Senior Subordinated
Notes at a total price of $1,144.95 per $1,000 principal amount. The Company
utilized cash and investments along with borrowings of $130,000,000 under a
new loan agreement to redeem the Senior Notes and Senior Subordinated Notes.
As a part of the Refinancing Plan, the Company entered into a new loan
agreement with several banks to provide a revolving credit facility of up to
$425,000,000 (the "Credit Facility"). The Credit Facility matures in 2002,
permits borrowings at interest rates based on either the bank's base rate or
LIBOR and requires an annual commitment fee based on margin ratios that could
result in a rate of .25% or .375% on the unused portion of the commitment.
As of December 26, 1996, the Company had outstanding borrowings of
$265,000,000 under the Credit Facility at an average rate of 6.33%.
The Credit Facility contains covenants that generally limit the Company's
capital expenditures, as defined in the loan agreement, to $150,000,000 per
year plus amounts for unused capital expenditures from the prior year
(approximately $34,000,000 from fiscal 1996) and proceeds received from
sale/leaseback transactions or other comparable financing programs. The
Company is currently negotiating a sale/leaseback transaction (the
"Sale/Leaseback Transaction") for certain of its theatres, including theatres
which are scheduled to open in fiscal 1998, which will allow the Company to
continue with its increased rate of capital expenditures and comply with the
terms of the Credit Facility. Assuming that the Sale/Leaseback Transaction
is consummated, the Company believes that cash generated from operations,
existing cash and equivalents, amounts which the Company anticipates receiving
for assets placed in other sale/leaseback programs and the unused commitment
amount under its Credit Facility will be sufficient to fund operations and
planned capital expenditures through the end of fiscal 1998. The Company's
expected capital expenditures for the current fiscal year will exceed
currently permitted levels under the Credit Facility unless the Sale/Leaseback
Transaction or other similar transactions close prior to the end of fiscal
1997. However, the Company has requested that its lenders amend the capital
expenditures covenant in the Credit Facility. The Company anticipates that
such an amendment will be granted. The Company is pursuing various financing
programs, in addition to the Sale/Leaseback Transaction, to allow it to
continue with its increased rate of capital expenditures and comply with the
terms of the Credit Facility.The Company anticipates that with such financing
programs, it will comply with the capital expenditures limits in the Credit
Facility in fiscal 1998.
Other covenants of the Credit Facility impose limitations on the
incurrence of additional indebtedness, creation of liens, a change of control,
transactions with affiliates, mergers, investments, guaranties and asset
sales. The Company is required to maintain a maximum net indebtedness to
consolidated earnings before interest, taxes, depreciation and amortization
("EBITDA") ratio, as defined in the terms of the Credit Facility, of 4.50 to
1 during the first four years of the Credit Facility and a ratio of 4.0 to 1
thereafter, and a minimum cash flow coverage ratio, as defined in the terms
of the Credit Facility, of 1.40 to 1. As of December 26, 1996, the Company
was in compliance with all financial covenants relating to the Credit
Facility.
During the thirty-nine weeks ended December 26, 1996, various holders of
the Company's Cumulative Convertible Preferred Stock converted 676,400 shares
into 1,166,109 shares of Common Stock at a conversion rate of 1.724 shares
of Common Stock for each share of Convertible Preferred Stock. Preferred
Stock dividend payments decreased 13.5%, or $711,000, to $4,539,000 for the
thirty-nine weeks ended December 26, 1996 from $5,250,000 for the same
period in the previous year as a result of the conversions. Future
conversions will continue to reduce the amount of dividends paid by the
Company and increase the number of shares of Common Stock outstanding.
On January 10, 1997, the Company purchased the 20% minority interest in
the common stock of AMC Philadelphia, Inc., an 80% owned subsidiary, for
$7,400,000 in cash. The Company utilized borrowings on its $425 million
Credit Facility to finance the purchase. Management does not believe that the
acquisition will have a significant effect on the Company's results of
operations.
Other
In May 1996, the Company announced that it was negotiating with its
majority stockholder, Durwood, Inc. ("DI"), to merge DI into the Company with
the Company remaining as the surviving entity. As currently proposed,
stockholders of DI would exchange their shares of DI stock for shares of the
Company's stock. Although the outstanding shares of the Company's Common
Stock will increase and the outstanding shares of its Class B Stock will
decrease if the merger is effected, no aggregate increase in total outstanding
shares is expected because the shares of the Company owned by DI will be
canceled and the shares of the Company held by other stockholders would not
be exchanged in the merger. The Company has appointed a special committee of
non-management directors to consider and negotiate the proposed merger. A
condition to the transaction will be that it be approved by the holders
of a majority of the shares of Common Stock, other than DI, members of the
Durwood family and officers and directors of the Company.
DI is primarily a holding company with no significant operations or net
assets other than its majority ownership of shares of the Company. It is
anticipated that, prior to the merger, all assets and liabilities of DI, other
than DI's equity interest in the Company, will be distributed to the DI
stockholders.As a result, management expects that the merger will be accounted
for as a corporate reorganization and that, accordingly, the recorded balances
for consolidated assets, liabilities, total stockholders' equity and results
of operations of the Company would not be effected. As presently proposed,
the Company will be responsible for paying 50% of the costs in connection with
the proposed merger which are estimated at $2,000,000. Management does not
believe that the transaction will have a significant effect on the Company's
liquidity or capital resources.
Congress recently passed legislation to increase the federal minimum
hourly wage paid to hourly wage employees over a two year period. This recent
legislation will increase the aggregate average hourly wage paid by the
Company. The Company intends to relieve the cost pressure from the minimum
wage increase by pursuing better labor and operating efficiencies as well as
some price adjustments for theatres in certain markets. The effect of such
legislation is not expected to have a material adverse effect on the Company's
results of operations, liquidity or financial position.
<PAGE>
PART II.
ITEM 1. LEGAL PROCEEDINGS
The following paragraphs summarize significant litigation and proceedings
to which the Company is a party.
In Re: AMC Shareholder Derivative Litigation, Chancery Court For New
Castle County, Delaware (Civil Action No. 12855). On February 15, 1995, the
court ordered the consolidation of two derivative actions filed against four
persons who were then directors of the Company, Messrs. Stanley H. Durwood,
Edward D. Durwood, Paul E. Vardeman and Charles J. Egan, Jr., and one of its
former directors, Mr. Phillip Ean Cohen. The two cases were originally filed
on January 27, 1993, by Mr. Scott C. Wallace and on April 16, 1993, by Mr.
James M. Bird, respectively. On December 8, 1994, the court, pursuant to a
stipulation by the parties, entered an order approving Mr. Wallace's
withdrawal as a derivative plaintiff, granting the motion for intervention
filed by Mr. Philip J. Bogosian, Auginco, Mr. Norman M. Werther and Ms. Ellen
K. Werther, and authorizing the filing of the interveners' complaint. The
interveners' complaint includes substantially the same allegations as the
Wallace and Bird complaints. The two actions, as consolidated, are referred
to below as the "Derivative Action."
In the Derivative Action, plaintiffs allege breach of fiduciary duties
of care, loyalty and candor, mismanagement, constructive fraud and waste of
assets in connection with, among other allegations, the provision of film
licensing, accounting and financial services to the Company by American
Associated Enterprises, a partnership beneficially owned by Mr. Stanley H.
Durwood and members of his family, certain other transactions with affiliates
of the Company, termination payments to a former officer of the Company,
certain transactions between the Company and National Cinema Supply
Corporation, and a fee paid by a subsidiary of the Company to Mr. Cohen in
connection with a transaction between the Company and TPI Entertainment, Inc.
The Derivative Action seeks unspecified money damages and equitable relief and
costs, including reasonable attorneys' fees.
On February 9, 1995, the defendants filed a motion to dismiss the
Derivative Action. Discovery has been stayed pending resolution of the motion
to dismiss.
On October 10, 1996, counsel for the parties in the Derivative Action
entered into a Stipulation and Agreement of Compromise and Settlement (the
"Settlement Agreement") providing for, among other things the discharge and
release of claims against the defendants, members of the Durwood family and
the Company. In consideration for, among other things, plaintiff's agreement,
defendants Stanley H. Durwood and Edward D. Durwood have entered into an
agreement with other Durwood family members providing for (i) the nomination
of two additional outside directors to serve on the Company's Board of
Directors and the voting of the shares of Common Stock owned by Durwood family
members for such nominees in the same proportion as votes cast by all
stockholders not affiliated with the Company, its directors and officers, (ii)
the dissolution of American Associated Enterprises, the merger of Durwood,
Inc. into AMCE and the sale, within 12 months thereafter, of 3 million shares
of common stock by members of the Durwood family in an underwritten secondary
offering (which will only be made by means of a prospectus), and (iv) the
payment by defendants of an aggregate of approximately $1.3 million to persons
who were holders of the Company's common stock on January 2, 1996, other than
the defendants, Durwood, Inc. or members of the Durwood family.
Under the Settlement Agreement, the obligation to nominate the additional
outside directors would continue for three years, and during this time such
directors would be empowered to approve, (i) certain transactions between the
Company and members of the Durwood family, and (ii) together with either Mr.
Egan or Mr. Vardeman, all other related-party transactions with other
officers, directors and 10% stockholders of the Company.
The Settlement Agreement requires court approval and is conditioned upon,
among other things, the consummation of the proposed merger between the
Company and Durwood, Inc., which is presently being negotiated.
<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(a) The Company held its Annual Meeting of Stockholders on November 14, 1996.
(b) At the meeting, the following matters were voted upon by the
stockholders:
(i) The election of Directors for the upcoming year;
(ii) A proposal to ratify the appointment of Coopers & Lybrand L.L.P. as
independent public accountants of the Company for the fiscal year
ending April 3, 1997; and
(iii) A proposal to approve certain proposed amendments to the AMC
Entertainment Inc. 1994 Stock Option and Incentive Plan.
The Board of Directors of the Company is composed of seven (7) members.
Five (5) of the directors are elected by the holders of Class B Stock, voting
as a class, and two (2) of the directors are elected by the holders of Common
Stock, voting as a class.
The following were the nominees of management voted upon and elected by
the holders of the Company's Class B Stock and Common Stock as of the record
date:
Class B Stock Common Stock
Stanley H. Durwood William T. Grant, II
Philip M. Singleton John P. Mascotte
Peter C. Brown
Charles J. Egan, Jr.
Paul E. Vardeman
All of the shares of Class B Stock (11,157,000 shares) were voted for the
nominees of management. In the election of directors by the holders of Common
stock, there were 6,089,522 votes "for" William T. Grant, II and 52,731 votes
"against" and 6,088,097 "for" John P. Mascotte and 54,156 "against".
The total votes cast concerning the ratification of the appointment of
Coopers & Lybrand L.L.P. were as follows: 117,659,370 voted "for" and 33,855
voted "against."
The total votes cast concerning the proposal to approve the proposed
amendments to the AMC Entertainment Inc. 1994 Stock Option and Incentive Plan
were as follows: 117,298,257 "for" and 336,469 "against."
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
*2.1. Stock Purchase, Release and Settlement Agreement dated January
10, 1997 between American Multi-Cinema, Inc. and H. Donald Busch
respecting AMC Philadelphia, Inc.
3.1. Amended and Restated Certificate of Incorporation of AMC
Entertainment Inc. (1)
3.2. Certificate of Designations relating to $1.75 Cumulative
Convertible Preferred Stock (2)
*3.3. Bylaws of AMC Entertainment Inc., as amended
*3.4. Articles of Incorporation, as amended, of American Multi-Cinema,
Inc.
*3.5. Bylaws of American Multi-Cinema, Inc., as amended
*3.6. Certificate of Incorporation, as amended, of AMC Philadelphia,
Inc.
3.7. Bylaws of AMC Philadelphia, Inc. (3)
3.8. Certificate of Incorporation, as amended, of AMC Realty, Inc.
(3)
3.9. Bylaws of AMC Realty, Inc. (3)
3.10. Certificate of Incorporation, as amended, of AMC Canton Realty,
Inc. (3)
3.11. Bylaws of AMC Canton Realty, Inc. (3)
3.12. Certificate of Incorporation, as amended, of Budco Theatres,
Inc. (3)
*3.13. Bylaws of Budco Theatres, Inc., as amended
*10.1. AMC Entertainment Inc. 1994 Stock Option and Incentive Plan, as
amended
*10.2. Form of Non-Qualified (NON-ISO) Stock Option Agreement
*10.3. Form of American Multi-Cinema, Inc. Retirement Enhancement Plan
*11. Computation of Per Share Earnings
*27. Financial Data Schedule
(1) Incorporated by reference from Amendment No. 2 to AMCE's
Registration Statement on Form S-2 (File No. 33-51693) filed
February 18, 1994
(2) Incorporated by reference from AMCE's Form 8-K (File No.
01-12429) dated April 7, 1994
(3) Incorporated by reference from AMCE's Form S-1 (File No.
33-48586) filed June 12, 1992, as amended
* - Filed herewith
(b)Reports on Form 8-K
No reports on Form 8-K were filed or required to be filed for the
thirteen weeks ended December 26, 1996.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMC ENTERTAINMENT INC.
Date: January 30, 1997 /S/PETER C. BROWN
Peter C. Brown
President and Chief
Financial Officer
Date: January 30, 1997 /S/RICHARD L. OBERT
Richard L. Obert
Senior Vice President-
Chief Accounting and
Information Officer
<PAGE>
EXHIBIT 11.
<TABLE>
AMC ENTERTAINMENT INC. AND SUBSIDIARIES
STATEMENTS REGARDING COMPUTATION OF PER SHARE EARNINGS
(in thousands, except per share amounts)
<CAPTION>
Thirty-nine
Weeks Ended
December 26,December 28,
1996 1995
<S> <C> <C>
PRIMARY EARNINGS PER SHARE
Net earnings before extraordinary item $ 10,811 $ 20,348
Extraordinary item - (19,350)
-------- --------
Net earnings 10,811 998
Preferred dividends (4,454) (5,250)
-------- --------
Net earnings (loss) for common shares $6,357 $ (4,252)
======== ========
Average shares for primary earnings per share:
Weighted average number of shares outstanding 17,410 16,509
Stock options whose effect is dilutive 249 286
-------- --------
Total shares outstanding 17,659 16,795
-------- --------
Primary earnings per share before
extraordinary item $ .36 $ .90
======== ========
Primary earnings (loss) per share $ .36 $(.25)
======== ========
FULLY DILUTED EARNINGS PER SHARE
Net earnings before extraordinary item $ 10,811 $ 20,348
Extraordinary item - (19,350)
-------- --------
Net earnings 10,811 998
Preferred dividends (4,454) (5,250)
-------- --------
Net earnings (loss) for common shares $6,357 $ (4,252)
======== ========
Average shares for fully diluted
earnings per share:
Weighted average number
of shares outstanding 17,410 16,509
Stock options and awards whose
effect is dilutive 451 413
Shares issuable upon conversion
of preferred stock N/A N/A
-------- --------
Total shares outstanding 17,861 16,922
-------- --------
Fully diluted earnings per share
before extraordinary item $ .36<F1> $ .89<F1>
======== ========
Fully diluted earnings (loss) per share $ .36<F1> (.25)<F1>
======== ========
<FN>
(1) Shares from conversion of preferred stock are excluded from the fully
diluted earnings per share calculation because they are anti-dilutive.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The schedule contains summary financial information extracted from the
Consolidated Financial Statements of AMC Entertainment Inc. as of and for the
thirty-nine weeks ended December 26, 1996, submitted in response to the
requirements to Form 10-Q and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> APR-03-1997
<PERIOD-END> DEC-26-1996
<CASH> 18,436
<SECURITIES> 0
<RECEIVABLES> 28,773
<ALLOWANCES> 806
<INVENTORY> 0
<CURRENT-ASSETS> 62,158
<PP&E> 758,771
<DEPRECIATION> 271,445
<TOTAL-ASSETS> 639,740
<CURRENT-LIABILITIES> 107,165
<BONDS> 327,284
0
2,216
<COMMON> 11,818
<OTHER-SE> 150,678
<TOTAL-LIABILITY-AND-EQUITY> 639,740
<SALES> 159,355
<TOTAL-REVENUES> 527,555
<CGS> 422,118
<TOTAL-COSTS> 422,118
<OTHER-EXPENSES> 37,543
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 15,036
<INCOME-PRETAX> 18,096
<INCOME-TAX> 7,285
<INCOME-CONTINUING> 10,811
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 10,811
<EPS-PRIMARY> .36
<EPS-DILUTED> .36
</TABLE>
EXHIBIT 2.1
January 9, 1997
Mr. H. Donald Busch
7253 Queenferry Circle
Boca Raton, FL 33496-5952
Re:Stock Purchase, Release & Settlement Agreement
Dear Don:
This letter will confirm the terms of our final settlement and
agreement pertaining to the purchase of your shares of AMC Philadelphia,
Inc., common stock and your release of American Multi-Cinema, Inc., ("AMC"),
its affiliates (including but not limited to AMC Philadelphia, Inc.),
parent corporation, subsidiaries, related entities, officers, directors,
shareholders, attorneys, agents, representatives, successors, assigns, and
employees.
1.AMC agrees to purchase your 600 shares of AMC Philadelphia,
Inc. common stock (the "Shares") for a purchase price of Seven Million Four
Hundred Thousand Dollars ($7,400,000.00) upon your execution of this Stock
Purchase, Release and Settlement Agreement ("Agreement"), payable in
immediately available funds by wire transfer pursuant to your instructions.
2.You represent to AMC that you are the sole owner,
beneficially and of record, of the Shares free and clear of all liens,
encumbrances, security agreements, options, claims and restrictions, except
as set forth in that certain Stockholders' Agreement dated December 30,
1986 among AMC Philadelphia, Inc., AMC and you. You will deliver to AMC
your stock certificate evidencing the Shares, with duly executed stock
powers endorsed in blank attached thereto, upon your execution of this
Agreement.
3.In consideration of the terms set forth herein, you hereby
fully and finally forever release, acquit and discharge AMC and its
affiliates (including but not limited to AMC Philadelphia, Inc.), parent
corporation, subsidiaries, related entities, officers, directors,
shareholders, attorneys, agents, representatives, successors, assigns, and
employees ("Released Parties") from any and all liability, claims, actions,
demands suits, or causes of action whatsoever, known or unknown, which you
may have or claim to have against them or any of them, whether in tort or
in contract, or for violation of federal or state law, or otherwise,
whether herein described or not, including but not limited to any and all
liability, claims, actions, demands, suits, or causes of action related to
your employment with AMC Philadelphia, Inc. or to the Management Agreement
between you and AMC Philadelphia, Inc. dated December 10, 1986, and/or the
Stockholders' Agreement between you and AMC Philadelphia, Inc. and American
Multi-Cinema, Inc. dated December 30, 1986. You understand and agree that
this Agreement is a waiver of (giving up of) any right to bring suit and
collect damages or otherwise recover from any of the Released Parties for
any claim you may have under any federal, state, or local statute,
ordinance, regulation, or common law, including but not limited to, rights
arising out of any alleged violations of any contract, expressed or
implied, any covenant of good faith and fair dealing, Title VII of the
Civil Rights Act of 1964 (race, color, religion, sex and national original
discrimination); 42 U.S.C. SS1981 (discrimination); the Age Discrimination
in Employment Act of 1967 (age discrimination); 29 U.S.C. SS209 (equal pay);
the Americans with Disabilities Act (disabilities); and any other common law
or statutory claim.
AMC and its affiliates (including but not limited AMC
Philadelphia, Inc.), parent corporation, subsidiaries, and related
entities, likewise release you from any such liability.
4.You agree to execute the attached resignations concerning
your positions as an officer and director of AMC Philadelphia, Inc. and as
an officer of Budco Theatres, Inc.
5.You agree not to disclose any terms or provisions of this
Agreement, except to your personal legal, investment and tax advisors, and
immediate family, or with the express written permission of the President
of AMC.
6.You acknowledge that during your employment you had access
to and became acquainted with information regarding the Released Parties
that is confidential and/or a trade secret. Such information including
information, whether obtained in writing, in conversation, or otherwise,
concerning corporate strategy, intent and plans, business operations,
financing, pricing, costs, budgets, equipment, potential locations of new
screens, the status, scope and terms of pending negotiations, transactions,
the terms of existing or proposed leases, contracts and obligations, and
corporate and financial reports. Such confidential and/or trade secret
information does not, however, include information in the public domain
unless you have, without authority, made it public. You agree: (a) not to
disclose such information to anyone; (b) to keep such information
confidential; (c) to take appropriate precautions to maintain the
confidentiality of such information; and (d) not to use such information
for personal benefit or the benefit of any competitor of the Release
Parties or any other person.
You further agree that within ten (10) days of your execution of
this Agreement, you will turn over to AMC all originals and copies of all
lists, files, memoranda, records, reports, credit cards, policies,
handbooks, physical or personal property, and other documents or
information, whether tangible, on computer or otherwise, which you received
from or which is the property of any of the Released Parties, or which you
prepared, copied or caused to be prepared or copied, or otherwise received
in connection with your employment.
7.It is further agreed by the parties hereto that in the event
any term or provision of this Agreement shall be declared invalid or
unenforceable it shall not affect the validity or enforceability of any
other term or provision of this Agreement; and that there are no other
representations or agreements between the parties that have not been set
forth herein.
8.You acknowledge that you have had the opportunity to consult
with an attorney of your own choosing concerning this Agreement before
signing it. You understand that you have been given a period of twenty-one
(21) days to consider and review this Agreement before signing it, and that
you may use as much of this twenty-one (21) day period as you wish prior to
signing. You understand that you may revoke this Agreement within seven
(7) days of signing it by delivering a written notice of revocation to R.
F. Beagle, Lathrop & Gage L.C., 2345 Grand Boulevard, Kansas City, Missouri
64108, no later than 5:00 p.m. on the seventh (7th) day after you sign the
Agreement, and if that day should fall on a weekend or a legal holiday, no
later than 5:00 p.m. on the first business day after the weekend or
holiday. If you revoke this Agreement, it shall not be effective or
enforceable.
9.You agree that this letter sets forth the entire agreement
and understanding between you and the Released Parties.
I, H. DONALD BUSCH, HAVE FULLY INFORMED
MYSELF OF THE CONTENTS AND MEANING OF THIS
AGREEMENT. I HAVE HAD THE OPPORTUNITY TO
SEEK THE ASSISTANCE AND ADVICE OF COUNSEL.
I UNDERSTAND THAT THIS LETTER CONTAINS A
COMPLETE AND FINAL RELEASE OF ALL MY
CLAIMS FOR ANY DAMAGES AGAINST THE
RELEASED PARTIES AS SET FORTH ABOVE.
/s/ Sandra S. Busch /s/ H. Donald Busch
WITNESSH. DONALD BUSCH
DATE: January 10, 1997
AMERICAN MULTI-CINEMA, INC.
BY /s/ Peter Brown
PETER BROWN
EXECUTIVE VICE PRESIDENT
EXHIBIT 3.3
AMC ENTERTAINMENT, INC.
BYLAWS
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting.
An annual meeting of the stockholders, for the election of directors
to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held on the
second Thursday in November of each year, if not a legal holiday, and if a
legal holiday, then on the next secular day following, and at such place
and at such time on the designated date as the Board of Directors shall fix
each year.
Section 2. Special Meetings.
Special meetings of the stockholders for any purpose or purposes
prescribed in the notice of the meeting, may be called by the Board of
Directors or the Chairman of the Board and shall be held at such place, on
such date, and at such time as they or he shall fix.
Section 3. Notice of Meetings.
Written notice of the place, date, and time of all meetings of the
stockholders shall be given, not less than ten nor more than sixty days
before the date on which the meeting is to be held, to each stockholder
entitled to vote at such meeting, except as otherwise provided herein or
required by law (meaning, here and hereinafter, as required from time to
time by the Delaware General Corporation Law or the Certificate of
Incorporation of the corporation).
When a meeting is adjourned to another place, date or time, written
notice need not be given of the adjourned meeting if the place, date and
time thereof are announced at the meeting at which the adjournment is
taken; provided, however, that if the date of any adjourned meeting is more
than thirty days after the date for which the meeting was originally
noticed, or if a new record date is fixed for the adjourned meeting,
written notice of the place, date, and time of the adjourned meeting shall
be given in conformity herewith. At any adjourned meeting, any business
may be transacted which might have been transacted at the original meeting.
Section 4. Quorum.
At any meeting of the stockholders, the holders of a majority of all
of the shares of the stock entitled to vote at the meeting, present in
person or by proxy, shall constitute a quorum for all purposes, unless or
except to the extent that the presence of a larger number may be required
by law.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of stock entitled to
vote who are present, in person or by proxy, may adjourn the meeting to
another place, date, or time.
If a notice of any adjourned special meeting of stockholders is sent
to all stockholders entitled to vote thereat, stating that it will be held
with those present constituting a quorum, then except as otherwise required
by law, those present at such adjourned meeting shall constitute a quorum,
and all matters shall be determined by a majority of the votes cast at such
meeting.
Section 5. Organization.
Such person as the Board of Directors may have designated or, in the
absence of such a person, the Chairman of the Board of the corporation, or,
in his absence, such person as may be chosen by the holders of a majority
of the shares entitled to vote who are present, in person or by proxy,
shall call to order any meeting of the stockholders and act as chairman of
the meeting. In the absence of the Secretary of the corporation, the
secretary of the meeting shall be such person as the chairman appoints.
Section 6. Conduct of Business.
The chairman of any meeting of stockholders shall determine the order
of business and the procedure at the meeting, including such regulation of
the manner of voting and the conduct of discussion as seem to him in order.
Section 7. Proxies and Voting.
At any meeting of the stockholders, every stockholder entitled to vote
may vote in person or by proxy authorized by an instrument in writing filed
in accordance with the procedure established for the meeting.
All voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that
upon demand therefore by a stockholder entitled to vote or his proxy, a
stock vote shall be taken. Every stock vote shall be taken by ballots,
each of which shall state the name of the stockholder or proxy voting and
such other information as may be required under the procedure established
for the meeting. Every vote taken by ballots shall be counted by an
inspector or inspectors appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes cast,
and except as otherwise required by law, all other matters shall be
determined by a majority of the votes cast.
Section 8. Stock List.
A complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of stock and
showing the address of each such stockholder and the number of shares
registered in his name, shall be open to the examination of any such
stockholder, for any purpose germane to the meeting, during ordinary
business hours for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during
the whole time thereof and shall be open to the examination of any such
stockholder who is present. This list shall presumptively determine the
identity of the stockholders entitled to vote at the meeting and the number
of shares held by each of them.
Section 9. Consent of Stockholders in Lieu of Meeting.
Any action required to be taken at any annual or special meeting of
stockholders of the corporation, or any action which may be taken at any
annual or special meeting of the stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted.
ARTICLE II
BOARD OF DIRECTORS
Section 1. Number and Term of Office.
The number of directors who shall constitute the Board of Directors
shall be seven (7), effective as of November 14, 1996. Each director shall
be elected for a term of one year, and each holds office until such
director's successor is duly elected and qualified or until such director's
earlier resignation or removal, except as otherwise provided herein or
required by law. The other provisions of these bylaws notwithstanding,
upon issuance of shares of the corporation's Convertible Preferred Stock,
par value $.66 per share, and so long as any shares of the Convertible
Preferred Stock shall remain outstanding, during the occurrence of a
"default period," as defined in the Certificate of Designations filed with
the Secretary of State of the State of Delaware with respect to the
Convertible Preferred Stock, the maximum authorized number of directors on
the Board of Directors shall be increased by two, and the two additional
directors shall be elected by the holders of the Convertible Preferred
Stock pursuant to the terms of the Certificate of Designations.
Section 2. Regular Meetings.
Regular meetings of the Board of Directors shall be held at such place
or places, on such date or dates, and at such time or times as shall have
been established by the Board of Directors and publicized among all
directors. A notice of each regular meeting shall not be required.
Section 3. Special Meetings.
Special meetings of the Board of Directors may be called by one-third
of the directors then in office (rounded up to the nearest whole number) or
by the Chairman of the Board and shall be held at such place, on such date,
and at such time as they or he shall fix. Notice of the place, date, and
time of each such special meeting shall be given each director by whom it
is not waived by mailing written notice not less than three days before the
meeting or by telegraph or by facsimile the same not less than twenty-four
hours before the meeting. Unless otherwise indicated in the notice
thereof, any and all business may be transacted at a special meeting.
Section 4. Quorum.
At any meeting of the Board of Directors, a majority of the total
number of the whole Board shall constitute a quorum for all purposes. If a
quorum shall fail to attend any meeting, a majority of those present may
adjourn the meeting to another place, date, or time, without further notice
or waiver thereof.
Section 5. Participation in Meetings By Conference Telephone.
Members of the Board of Directors, or of any committee thereof, may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and such participation
shall constitute presence in person at such meeting.
Section 6. Conduct of Business.
At any meeting of the Board of Directors, business shall be transacted
in such order and manner as the Board may from time to time determine and
all matters shall be determined by the vote of a majority of the directors
present, except as otherwise provided herein or required by law. Action
may be taken by the Board of Directors without a meeting if all members
thereof consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board of Directors.
Section 7. Powers.
The Board of Directors may, except as otherwise required by law,
exercise all such powers and do all such acts and things as may be
exercised or done by the corporation, including, without limiting the
generality of the foregoing, the unqualified power:
(1)To declare dividends from time to time in accordance with
law;
(2) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(3) To authorize the creation, making and issuance, in such form
as it may determine, of written obligations of every kind,
negotiable or non-negotiable, secured or unsecured, and to
do all things necessary in connection therewith;
(4) To remove any officer of the corporation with or without
cause, and from time to time to devolve the powers and
duties of any officer upon any other person for the time
being;
(5) To confer upon any officer of the corporation the power to
appoint, remove and suspend subordinate officers, employees
and agents;
(6) To adopt from time to time such stock, option, stock
purchase, bonus or other compensation plans for directors,
officers, employees and agents of the corporation and its
subsidiaries as it may determine;
(7) To adopt from time to time such insurance, retirement, and
other benefit plans for directors, officers, employees and
agents of the corporation and its subsidiaries as it may
determine; and
(8) To adopt from time to time regulations, not inconsistent
with these bylaws, for the management of the corporation's
business and affairs.
Section 8. Compensation of Directors.
Directors, as such, may receive, pursuant to resolution of the Board
of Directors, fixed fees and other compensation for their services as
directors, including, without limitation, their services as members of
committees of the Board of Directors.
ARTICLE III
COMMITTEES
Section 1. Committees of the Board of Directors.
The Board of Directors, by a vote of a majority of the whole Board,
may from time to time designate committees of the Board, with such lawfully
delegable powers and duties as it thereby confers, to serve at the pleasure
of the Board and shall, for those committees and any others provided for
herein, elect a director or directors to serve as the member or members,
designating, if it desires, other directors as alternate members who may
replace any absent or disqualified member at any meeting of the committee.
Any committee so designated may exercise the power and authority of the
Board of Directors to declare a dividend or to authorize the issuance of
stock if the resolution which designates the committee or a supplemental
resolution of the Board of Directors shall so provide. In the absence or
disqualification of any member of any committee and any alternate member in
his place, the member or members of the committee present at the meeting
and not disqualified from voting, whether or not he or they constitute a
quorum, may by unanimous vote appoint another member of the Board of
Directors to act at the meeting in the place of the absent or disqualified
member.
Section 2. Conduct of Business.
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be
made for notice to members of all meetings; one-third of the members shall
constitute a quorum unless the committee shall consist of one or two
members, in which event one member shall constitute a quorum; and all
matters shall be determined by a majority vote of the members present.
Action may be taken by any committee without a meeting if all members
thereof consent thereto in writing, and the writing or writings are filed
with the minutes of the proceedings of such committee.
ARTICLE IV
OFFICERS
Section 1. Generally.
The officers of the corporation shall consist of: a Chairman of the
Board, a President, one or more Vice Presidents, any one or more of whom
may be designated as an Executive Vice President or Senior Vice President,
a Secretary, and Treasurer, and such other officers as from time to time
may be appointed by the Board of Directors. Officers shall be elected by
the Board of Directors, which shall consider that subject at its first
meeting after every annual meeting of stockholders. Each officer shall
hold office until his successor is elected and qualified or until his
earlier resignation or removal. Any number of offices may be held by the
same person,
Section 2. Chairman of the Board.
The Chairman of the Board shall be the Chief Executive Officer of the
corporation, shall preside at meetings of the Board of Directors, shall be
responsible for the general supervision and direction of the business of
the corporation, and shall perform such other duties and responsibilities
as are prescribed by the Board of Directors.
Section 3. President.
The President shall be responsible for such duties as are delegated to
him by the Board of Directors, including without limitation the monitoring
and supervision of the corporation's day to day operations. The President
shall perform the duties of the Chairman of the Board in the event of the
Chairman of the Board's absence or disability.
Section 4. Vice President.
Each Vice President shall have such powers and duties as may be
delegated to him by the Board of Directors. One Vice President shall be
designated by the Board to perform the duties and exercise the powers of
the President in the event of the President's absence or disability.
Section 5. Treasurer.
The Treasurer shall have the responsibility for maintaining the
financial records of the corporation and shall have custody of all monies
and securities of the corporation. He shall make such disbursements of the
funds of the corporation as are authorized and shall render from time to
time an account of all such transactions and of the financial condition of
the corporation. The Treasurer shall also perform such other duties as the
Board of Directors may from time to time prescribe.
Section 6. Secretary.
The -Secretary shall issue all authorized notices for, and shall keep
minutes of, all meetings of the stockholders and the Board of Directors.
He shall have charge of the corporate books and shall perform such other
duties as the Board of Directors may from time to time prescribe.
Section 7. Delegation of Authority.
The Board of Directors may from time to time delegate the powers or
duties of any officer to any other officers or agents, notwithstanding any
provision hereof.
Section 8. Removal.
Any officer of the corporation may be removed at any time, with or
without cause, by the Board of Directors.
Section 9. Action with Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, the Chairman of
the Board shall have power to vote and otherwise act on behalf of the
corporation, in person or by proxy, at any meeting of stockholders of or
with respect to any action of stockholders of any other corporation in
which this corporation may hold securities and otherwise to exercise any
and all rights and powers which this corporation may possess by reason of
its ownership of securities in such other corporation.
ARTICLE V
STOCK
Section 1. Certificates of Stock.
Each stockholder shall be entitled to a certificate signed by, or in
the name of the corporation by, the Chairman of the Board or the President,
and by the Secretary or an Assistant Secretary, or by the Treasurer or an
Assistant Treasurer, certifying the number of shares owned by him. Any or
all of the signatures on the certificate may be a facsimile.
Section 2. Transfers of Stock.
Transfers of stock shall be made only upon the transfer books of the
corporation kept at an office of the corporation or by transfer agents
designated to transfer shares of the stock of the corporation. Except
where a certificate is issued in accordance with Section 4 of Article V of
these bylaws, an outstanding certificate for the number of shares involved
shall be surrendered for cancellation before a new certificate is issued
therefor.
Section 3. Record Date.
The Board of Directors may fix a record date, which shall not be more
than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to the time for the other
action hereinafter described, as of which there shall be determined the
stockholders who are entitled: to notice of or to vote at any meeting of
stockholders or any adjournment thereof; to express consent to corporate
action in writing without a meeting; to receive payment of any dividend or
other distribution or allotment of any rights; or to exercise any rights
with respect to any change, conversion or exchange of stock or with respect
to any other lawful action.
Section 4. Lost, Stolen or Destroyed Certificates.
In the event of the loss, theft or destruction of any certificate of
stock, another may be issued in its place pursuant to such regulations as
the Board of Directors may establish concerning proof of such loss, theft
or destruction and concerning the giving of a satisfactory bond or bonds of
indemnity.
Section 5. Regulations.
The issue, transfer, conversion and registration of certificates of
stock shall be governed by such other regulations as the Board of Directors
may establish.
ARTICLE VI
NOTICES
Section 1. Notices.
Except as otherwise specifically provided herein or required by law,
all notices required to be given to any stockholder, director, officer,
employee or agent shall be in writing and may in every instance be
effectively given by hand delivery to the recipient thereof, by depositing
such notice in the mails, postage paid, or by sending such notice by
prepaid telegram or mailgram. Any such notice shall be addressed to such
stockholder, director, officer, employee or agent at his or her last known
address as the same appears on the books of the corporation. The time when
such notice is received, if hand delivered, or dispatched, if delivered
through the mails or by telegram or mailgram, shall be the time of the
giving of the notice.
Section 2. Waivers.
A written waiver of any notice, signed by a stockholder, director,
officer, employee or agent, whether before or after the time of the event
for which notice is to be given, shall be deemed equivalent to the notice
required to be given to such stockholder, director, officer, employee or
agent. Neither the business nor the purpose of any meeting need be
specified in such a waiver.
ARTICLE VII
MISCELLANEOUS
Section 1. Facsimile Signatures.
In addition to the provisions for use of facsimile signatures
elsewhere specifically authorized in these bylaws, facsimile signatures of
any officer or officers of the corporation may be used whenever and as
authorized by the Board of Directors or a committee thereof.
Section 2. Corporate Seal.
The Board of Directors may provide a suitable seal, containing the
name of the corporation, which seal shall be in the charge of the
Secretary. If and when so directed by the Board of Directors or a
committee thereof, duplicates of the seal may be kept and used by the
Treasurer or by an Assistant Secretary or Assistant Treasurer.
Section 3. Reliance upon Books, Reports and Records.
Each director, each member of any committee designated by the Board of
Directors, and each officer of the corporation shall, in the performance of
his duties, be fully protected in relying in good faith upon the books of
accounts or other records of the corporation, including reports made to the
corporation by any of its officers, by an independent certified public
accountant, or by an appraiser selected with reasonable care.
Section 4. Fiscal Year.
The fiscal year of the corporation shall be as fixed by the Board of
Directors.
Section 5. Time Periods.
In applying any provision of these bylaws which require that an act be
done or not done a specified number of days prior to an event or that an
act be done during a period of a specified number of days prior to an
event, calendar days shall be used, the day of the doing of the act shall
be excluded, and the day of the event shall be included.
ARTICLE VIII
AMENDMENTS
These bylaws may be amended or repealed by the Board of Directors at
any meeting or by the stockholders at any meeting.
EXHIBIT 3.4
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
AMERICAN MULTI-CINEMA, INC.
Pursuant to the provisions of The General and Business Corporation Law
of Missouri, the undersigned corporation certifies as follows:
1.The name of the corporation is:
American Multi-Cinema, Inc.
The name under which the corporation was originally organized was:
American Royal Cinema, Inc.
2.On December 29, 1994, the shareholders of the corporation adopted
an amendment to the corporation's Articles of Incorporation.
3.ARTICLE THIRD of the corporation's Articles of Incorporation was
amended so that, as amended, such ARTICLE THIRD shall be and read in its
entirety as set forth on Exhibit A attached hereto and incorporated herein
by this reference.
4.Of the 8,800,000 outstanding shares of the corporation's stock,
all shares were entitled to vote on the amendment.
5.All shares of the corporation's stock voted for the amendment and
no shares voted against the amendment.
IN WITNESS WHEREOF, the undersigned, S.H. Durwood, Chairman and CEO of
the corporation and Nancy L. Gallagher, Secretary of the corporation, have
executed this instrument on behalf of the corporation and the Secretary of
the corporation has affixed its corporate seal hereto and attested said
seal on the 29th day of December, 1994.
AMERICAN MULTI-CINEMA, INC.
By: /s/ S.H. Durwood
Name: S.H. Durwood
Title: Chairman and CEO
By: /s/ Nancy L. Gallagher
Nancy L. Gallagher, Secretary
STATE OF MISSOURI)
) ss.
COUNTY OF JACKSON)
I, the undersigned, a notary public, do hereby certify that on the
29th day of December, 1994, personally appeared before me S.H. Durwood,
who, being by me first duly sworn, declared that he/she is the Chairman and
CEO of American Multi-Cinema, Inc., a Missouri corporation, that he/she
signed the foregoing document as Chairman and CEO of said corporation, and
that the statements contained therein are true.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year first above written.
/s/ Betty Sue Wiggins
Notary Public in and for said County and
State
My Commission Expires:
<PAGE>
Exhibit A
THIRD. The aggregate number of shares of stock that the Corporation
shall have authority to issue shall be 12,800,000 shares, consisting of
8,800,000 shares of common stock, $.0625 par value per share, and 4,000,000
shares of preferred stock, $.0625 par value per share.
No holder of any shares of the Corporation shall be entitled as such,
as a matter of right, to purchase or subscribe for any shares of stock of
the Corporation of any class, whether now or hereafter authorized or
whether issued for cash, property or services or as a dividend or
otherwise, or to purchase or subscribe for any obligations, bonds, notes,
debentures, other securities or stock convertible into shares of stock of
the Corporation or carrying or evidencing any right to purchase shares of
stock of any class.
Each share of the $1.75 Cumulative Preferred Stock shall rank equally
in all respects and shall be subject to the following provisions:
Section 1.Designation; Rank. This series of preferred stock
shall be designated $1.75 Cumulative Preferred Stock, par value $.0625 per
share (the "Preferred"). The Preferred will rank, with respect to dividend
rights and rights on liquidation, winding up and dissolution, (a) senior to
all classes of common stock of the Corporation (including, without
limitation, the Common Stock) and each other class of capital stock or
series of preferred stock established after the offering of the Preferred
by the Board of Directors that does not expressly provide that it ranks
senior to or on a parity with the Preferred as to dividend rights and
rights on liquidation, winding up and dissolution (collectively referred to
with the common stock of the Corporation as "Junior Securities"), (b) on a
parity with each other class of capital stock or series of preferred stock
issued by the Corporation established after the offering of the Preferred
by the Board of Directors that expressly provides that such series will
rank on a parity with the Preferred as to dividend rights and rights on
liquidation, winding up and dissolution (collectively referred to as
"Parity Securities" and (c) junior to each other class of capital stock or
series of preferred stock established after the offering of the Preferred
by the Board of Directors that expressly provides that such series will
rank senior to the Preferred as to dividend rights and rights on
liquidation, winding up and dissolution (collectively referred to as
"Senior Securities").
Section 2.Authorized Number. The number of shares
constituting the Preferred shall be 4,000,000 shares.
Section 3.Dividends. Holders of shares of the Preferred
will be entitled to receive, when, as and if declared by the Board of
Directors out of funds of the Corporation legally available for payment,
cash dividends at an annual rate of $1.75 per share of Preferred, payable
in arrears on March 15, June 15, September 15 and December 15 of each year,
commencing March 15, 1995 (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 in the stock
register of the Corporation on a record date fixed by the Board of
Directors which shall be not more than 60 days nor less than 10 days before
the payment date. Dividends payable on the 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 or for that portion of any period greater than a full
dividend period will be computed on the basis of a 360-day year consisting
of twelve 30-day months. The Preferred will 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 Preferred. If full cumulative dividends are not paid in full, or
declared in full and sums set apart for the payment thereof, upon the
Preferred and upon any other Parity Securities, all dividends declared upon
shares of 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 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 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 rights to acquire Junior Securities) and no Junior
Securities may be repurchased, redeemed or otherwise retired, no may funds
be set apart for payment with respect thereto, if full dividends have not
been paid on the Preferred. Accumulated unpaid dividends will not bear
interest.
Section 4.Liquidation Rights. In the event of any voluntary
or involuntary liquidation, dissolution or winding up of the Corporation,
before any payment or distribution of assets is made on any Junior
Securities, including, without limitation. the Common Stock of the
Corporation, but after payment or provision for payment of the Company's
debts and other liabilities, the holders of the 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
holder 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 Corporation, the assets of the Corporation
are insufficient to pay in full the amounts described above as payable with
respect to the Preferred and any Parity Securities, the holders of the
Preferred and such Parity Securities will share ratably in any such
distribution of assets of the Corporation, 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 liquidation preference and
accrued dividends, the shares of Preferred will not be entitled to any
further participation in any distribution of assets by the Corporation.
Neither the sale or transfer of all or substantially all the assets of the
Corporation, nor the merger or consolidation of the Corporation into or
with any other corporation or a merger of any other corporation with or
into the Corporation, nor any dissolution, liquidation, winding up or
reorganization of the Corporation immediately followed by reincorporation
of another corporation holding substantially all the assets of the
Corporation, will be deemed to be a liquidation, dissolution or winding up
of the Corporation.
Section 5.Optional Redemption.
a.Shares of Preferred may not be redeemed by the Corporation
on or prior to March 15, 1997. After March 15, 1997, the Corporation, at
its option, may redeem the shares of Preferred, in whole or in part, out of
funds legally available therefor, at any time or from time to time, subject
to the notice provisions and provisions for partial redemption described
below, during the twelve-month periods beginning immediately after March 15
in each of the following years at the following redemption prices per share
(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 (the "Redemption Date"), whether or not declared (the
"Redemption Price"):
Year Redemption Price
1997 . . . . 104%
1998 . . . . 103%
1999 . . . . 102%
2000 . . . . 101%
2001 and thereafter. . . . . . . . . .100%
b.In the event the Corporation shall redeem shares of
Preferred, notice of such redemption shall be given by first class mail,
postage prepaid, not less than 30 days nor more than 60 days prior to the
Redemption Date, to each holder of record of the shares of Preferred to be
redeemed, at such holder's address as the same appears in the stock
register of the Corporation. Each such notice shall state (i) the
Redemption Date, (ii) the number of shares of Preferred to be redeemed and,
if less than all the shares held by such holder is to be redeemed, the
number of such shares to be redeemed from such holder, (iii) The Redemption
Price, (iv) the place or places where certificates for such shares of
Preferred are to be surrendered for payment of the Redemption Price, and
(v) that dividends on the shares of Preferred to be redeemed shall cease to
accrue on such Redemption Date. In order to facilitate the redemption of
the Preferred, the Board of Directors may fix a record date for
determination of holders of shares of Preferred to be redeemed, which shall
not be less than 30 days nor more than 60 days prior to the Redemption Date
with respect thereto. If, on the Redemption Date, funds necessary for the
redemption shall be available therefor, and shall have been irrevocably
deposited or set aside, then, notwithstanding that the certificates
evidencing any shares of Preferred so called for redemption shall not have
been surrendered (unless the Corporation defaults in making payment of the
Redemption Price), the dividends with respect to the shares so called for
redemption shall cease to accrue after the Redemption Date, such shares
shall no longer be deemed outstanding, all rights of the holders of such
shares as stockholders of the Corporation shall cease, and all rights
whatsoever with respect to the shares so called for redemption (except the
right of the holders to receive the Redemption Price without interest upon
surrender of their certificates therefor) shall terminate.
Upon surrender in accordance with said notice of the certificates for
any such shares of Preferred so redeemed (properly endorsed or assigned for
transfer, if the Board of Directors shall so require and the notice shall
so state), such shares shall be redeemed by the Corporation at the
applicable Redemption Price. If fewer than all of the outstanding shares
of Preferred are to be redeemed, the shares to be redeemed shall be
selected by the Corporation from outstanding shares of Preferred not
previously called for redemption by lot or pro rata. If fewer than all the
shares of Preferred represented by any certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost
to the holder thereof.
In the event that the Corporation has failed to pay accrued and unpaid
dividends on the Preferred, the Preferred may not be redeemed unless all
outstanding shares of Preferred are simultaneously redeemed or the
outstanding shares of the Preferred are redeemed on a pro rata basis.
Section 6.Voting Rights.
Except as otherwise provided herein or as may be required by Missouri
law or provided by the resolution creating any other series of preferred
stock, the holders of shares of Preferred will have no voting rights.
Section 8.Status of Reacquired Shares. If shares of the
Preferred are redeemed pursuant to Section 5 hereof, the shares so redeemed
shall, upon compliance with any statutory requirements, assume the status
of authorized but unissued shares of preferred stock of the Corporation.
Section 9.Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand or when sent by telex or telecopier
(with receipt confirmed), provided a copy is also sent by express
(overnight, if possible) courier, addressed, (a) in the case of a holder of
the Preferred, to such holder's address of record and, (b) in the case of
the Corporation, to the Company's principal executive offices to the
attention of the Company's Secretary.
<PAGE>
Amendment of Articles of Incorporation
(To be submitted in duplicate by an attorney)
HONORABLE JAMES C. KIRKPATRICK
SECRETARY OF STATE
STATE OF MISSOURI
JEFFERSON CITY, MO. 65101
Pursuant to the provisions of The General and Business Corporation Law
of Missouri, the undersigned Corporation certifies the following:
(1)The present name of the Corporation is AMERICAN MULTI-CINEMA,
INC.
The name under which it was originally organized was AMERICAN ROYAL
CINEMA, INC.
(2)An amendment to the Corporation's Articles of Incorporation was
adopted by the shareholders on June 20, 1983.
(3)Article # THIRD is amended to read as follows:
see attached
(4)Of the 1,100,000 shares outstanding, 1,100,000 of such shares
were entitled to vote on such amendment.
The number of outstanding shares of any class entitled to vote thereon
as a class were as follows:
Number of
Class Outstanding Shares
Common 1,100,000
(5)The number of shares voted for and against the amendment was as
follows:
ClassNo. Voted For No. Voted Against
Common 1,100,000 -0-
(6)If the amendment changed the number or par value of authorized
shares having a par value the amount in dollars of authorized shares having
a par value as changed is:
8,800,000 shares of par value of $.0625 per share for total
authorized capital of $550,000
If the amendment changed the number of authorized shares without par
value, the authorized number of shares without par value as changed and the
consideration proposed to be received for such increased authorized shares
without par value as are to be presently issued are:
N/A
(7)If the amendment provides for an exchange, reclassification, or
cancellation of issued shares, or a reduction of the number of authorized
shares of any class below the number of issued shares of that class, the
following is a statement of the manner in which such reduction shall be
effected:
N/A
<PAGE>
IN WITNESS WHEREOF, the undersigned, Ron D. Leslie, Vice President has
executed this instrument and its Secretary, Alan K. Benjamin has affixed
its corporate seal hereto and attested said seal on the 11th day of August,
1983.
PLACE
CORPORATE SEAL
HERE
(IF NO SEAL, STATE "NONE")
AMERICAN MULTI-CINEMA, INC.
(Name of Corporation)
ATTEST:
/s/ Alan K. BenjaminBy: /s/ Ron D. Leslie
SecretaryVice President
Alan K. BenjaminRon D. Leslie
STATE OF MISSOURI)
) SS.
COUNTY OF JACKSON)
I, Donna F. McCorkendale, a notary public, do hereby certify that on
this 11th day of August, 1983, personally appeared before me Ron D. Leslie,
who, being by me first duly sworn, declared that he is the Vice President
of American Multi-Cinema, Inc., that he signed the foregoing document as
Vice President of the corporation, and that the statements therein
contained are true.
/s/ Donna F. McCorkendale
Notary Public
(NOTARIAL
SEAL)
My commission expires:
SEPT 27, 1986<PAGE>
THIRD. The aggregate number of shares of stock which the
Corporation shall have authority to issue shall be 8,800,000 shares of
common stock, each of the par value of $.0625 per share.
Immediately prior to the effectiveness of this amendment the
Corporation was authorized to issue 1,100,000 shares of common stock of
the par value of $.50 per share, aggregating $550,000. After the
effectiveness of this amendment the Corporation will be authorized to
issue 8,800,000 shares of common stock of the par value of $.0625 per
share, aggregating $550,000.
Immediately prior to the effectiveness of this amendment the
Corporation had 1,100,000 shares of common stock of the par value of
$.50 per share issued and outstanding.
Upon the effectiveness of this amendment:
(a)Each of said 1,100,000 issued and outstanding shares of $.50
par value common stock shall be, and hereby is, automatically
reclassified as and converted into shares of common stock of the
Corporation of the par value of $.0625 each, on the basis of eight
shares of $.0625 par value common stock of the Corporation for each
share of the Corporation's $.50 par value common stock, aggregating
8,800,000 shares of $.50 par value common stock;
(b)The entire stated capital in respect of all of the issued
shares of $.50 par value common stock shall be, and it hereby is,
transferred to the Corporation's capital in respect of said 8,800,000
shares of $.0625 par value common stocks.
Accordingly, immediately after the effectiveness of this amendment,
the Corporation will have issued and outstanding 8,800,000 shares of
common stock of the par value of $.0625 each, aggregating $550,000 of
stated capital.
From and after the effectiveness of this amendment, each stock
certificate formerly representing shares of the Corporation's $.50 par
value common stock issued and outstanding immediately prior to the
effectiveness of this amendment shall, without further action, represent
shares of the Corporation's common stock of the par value of $.0625
each, on the basis of eight shares of $.0625 par value common stock for
each share of $.50 par value common stock formerly represented by such
stock certificate.
No holder of any shares of the Corporation shall be entitled as
such, as a matter of right, to purchase or subscribe for any shares of
stock of the Corporation of any class, whether now or hereafter
authorized or whether issued for cash, property or services or as a
dividend or otherwise, or to purchase or subscribe for any obligations,
bonds, notes, debentures, other securities or stock convertible into
shares of stock of the Corporation or carrying or evidencing any right
to purchase shares of stock of any class.
None of the Shareholders shall sell, assign, pledge, or otherwise
transfer or encumber in any manner or by any means whatever, any
interest in all or part of his, her, or its capital stock of the
Corporation now owned or hereafter acquired without the prior written
consent of the Corporation first obtained, nor shall any such
Shareholder sell any such stock without having first offered it to
others in accordance with the terms and conditions of this Article;
provided, however, that if the consent required by this Paragraph is
granted, the transferee shall accept such stock subject to all the
restrictions, terms, and conditions herein contained.
In the event any of the Shareholders shall desire to sell any
portion or all of his, her, or its capital stock of the Corporation, and
shall not have received the prior written consent of the Corporation,
he, she, or it may sell the same only after offering it to others in the
following manner:
The Shareholder desiring to sell all or part of his, her, or
its stock shall serve notice upon the Corporation and all other
Shareholders by registered mail, return receipt requested,
indicating that he, she, or it has a bona fide offer for the sale
of such of his, her, or its stock for a price consisting only of
cash, stating the number of shares to be sold, the name and address
of the person desiring to purchase same and the sales price and
terms of payment of such sale; said notice shall also contain an
offer to sell such stock upon the terms and conditions as set forth
in the aforesaid bona fide offer of sale.
For a period of thirty (30) days after the mailing of such
notice the Corporation shall have the option to redeem the stock so
offered. If the Corporation fails to exercise such option the
other Shareholders shall have the option to purchase such stock pro
rata to their then existing holdings within thirty (30) days after
the termination of the Corporation's option to redeem.
In the event that neither the Corporation nor the other
Shareholders shall exercise the option to redeem or purchase, as
the case may be, as provided herein, the offering Shareholder shall
be free to dispose of the shares of stock so offered to the person
named in the aforesaid bona fide offer of purchase at the price and
upon the terms and conditions set forth in his offer; provided,
however, that such disposition must be made within ninety (90) days
following the termination of the Shareholders' option.
The manner of payment by the Corporation or the other
Shareholders shall be the same as set forth in the notice from the
party desiring to sell said stock, i.e., the terms set forth in
said bona fide offer.
The Corporation shall cause each and every certificate of capital
stock of the Corporation whether presently or hereafter issued to be
endorsed as follows:
"NOTICE IS HEREBY GIVEN that the sale, assignment, transfer, pledge
or other disposition of the shares of capital stock represented by
this certificate are subject to certain restrictions contained in
ARTICLE THIRD of the Articles of Incorporation and that the right
to purchase or subscribe for any additional shares of stock of the
Corporation is restricted as provided in said ARTICLE THIRD of the
Articles of Incorporation."
In addition the Corporation shall cause any certificates of capital
stock issued pursuant to a certain Common Stock Purchase Warrant dated
October 23, 1968, to be further endorsed with a legend as provided in
Paragraph 10 of said Common Stock Purchase Warrant.
That a true copy of the Articles of Incorporation and said Purchase
Warrant is and shall remain on file in the office of the President of
the Corporation.
<PAGE>
Amendment of Articles of Incorporation
(To be submitted in duplicate by an attorney)
HONORABLE JAMES C. KIRKPATRICK
SECRETARY OF STATE
STATE OF MISSOURI
JEFFERSON CITY, MO. 65101
Pursuant to the provisions of The General and Business Corporation
Law of Missouri, the undersigned Corporation certifies the following:
(1)The present name of the Corporation is AMERICAN MULTI-CINEMA,
INC.
The name under which it was originally organized was AMERICAN ROYAL
CINEMA, INC.
(2)An amendment to the Corporation's Articles of Incorporation
was adopted by the shareholders on July 28, 1980.
(3)Article # SIX is amended to read as follows:
The number of directors to constitute the board of directors is
five. Thereafter the number of directors shall be fixed by, or in the
manner provided in the bylaws. Any change in the number will be
reported to the Secretary of State within thirty calendar days of such
change.
(4)Of the 1,100,000 shares outstanding, 1,100,000 of such shares
were entitled to vote on such amendment.
The number of outstanding shares of any class entitled to vote
thereon as a class were as follows:
Number of
Class Outstanding Shares
Common 1,100,000
(5)The number of shares voted for and against the amendment was
as follows:
ClassNo. Voted For No. Voted Against
Common 1,100,000 -0-
(6)If the amendment changed the number or par value of authorized
shares having a par value the amount in dollars of authorized shares
having a par value as changed is:
N/A
If the amendment changed the number of authorized shares without
par value, the authorized number of shares without par value as changed
and the consideration proposed to be received for such increased
authorized shares without par value as are to be presently issued are:
N/A
(7)If the amendment provides for an exchange, reclassification,
or cancellation of issued shares, or a reduction of the number of
authorized shares of any class below the number of issued shares of that
class, the following is a statement of the manner in which such
reduction shall be effected:
N/A
<PAGE>
IN WITNESS WHEREOF, the undersigned, S.H. Durwood, President, has
executed this instrument and its Secretary, Alan K. Benjamin has affixed
its corporate seal hereto and attested said seal on the 27th day of
October, 1980.
PLACE
CORPORATE SEAL
HERE
(IF NO SEAL, STATE "NONE")
AMERICAN MULTI-CINEMA, INC.
(Name of Corporation)
ATTEST:
/s/ Alan K. BenjaminBy: /s/ S.H. Durwood
SecretaryPresident
STATE OF MISSOURI)
) SS.
COUNTY OF JACKSON)
I, Donna F. McCorkendale, a notary public, do hereby certify that
on this 27th day of October, 1980, personally appeared before me S.H.
Durwood, who, being by me first duly sworn, declared that he is the
President of American Multi-Cinema, Inc., that he signed the foregoing
document as President of the corporation, and that the statements
therein contained are true.
/s/ Donna F. McCorkendale
Notary Public
(NOTARIAL
SEAL)
My commission expires:
SEPT 27, 1982
<PAGE>
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
OF
AMERICAN MULTI-CINEMA, INC.
The undersigned, American Multi-Cinema, Inc., a Missouri
Corporation (the "Corporation"), for the purpose of amending the Articles
of Incorporation of the Corporation, in accordance with the General and
Business Corporation Law of Missouri does hereby make and execute this
Certificate of Amendment of Articles of Incorporation:
I.The name of the Corporation is American-Multi Cinema, Inc.
The name under which it was originally was American Royal Cinema, Inc.
II.The amendment set forth below was adopted by the Shareholders
of the Corporation on July 26, 1978.
III.The following resolution sets forth the amendment adopted.
RESOLVED, that this Corporation amend its Articles of Incorporation
in the following manner:
By striking therefrom the provisions of Article THIRD as presently
constituted and substituting in lieu thereof the following:
"THIRD. The aggregate number of shares which the Corporation
shall have authority to issue shall be 1,100,000 shares of common
stock, each of the par value of $.50 per share."
"Upon the effectiveness of this amendment, all of the issued
and outstanding shares of common stock of the Corporation of the
par value of $10.00 per share shall be, and they hereby are,
reclassified as and converted into shares of common stock of the
Corporation of the par value of $.50 per share on the basis of
twenty shares of $.50 par value common stock of the Corporation for
each share of the Corporation's $10.00 par value common stock."
"From and after the effectiveness of this amendment, each stock
certificate formerly representing shares of the Corporation's
$10.00 par value common stock outstanding immediately prior to the
effectiveness of this amendment shall, without further action,
represent shares of the Corporation's common stock of the par value
of $.50 each on the basis of twenty shares of $.50 par value common
stock for each share of $10.00 par value common stock formerly
represented such certificate."
No holder of any shares of the Corporation shall be entitled as
such, as a matter of right, to purchase or subscribe for any shares of
stock of the Corporation of any class, whether now or hereafter
authorized or whether issued for cash, property or services or as a
dividend or otherwise, or to purchase or subscribe for any obligations,
bonds, notes, debentures, other securities or stock convertible into
shares of stock of the Corporation or carrying or evidencing any right
to purchase shares of stock of any class.
None of the Shareholders shall sell, assign, pledge, or otherwise
transfer or encumber in any manner or by any means whatever, any
interest in all or part of his, her, or its capital stock of the
Corporation now owned or hereafter acquired without the prior written
consent of the Corporation first obtained, nor shall any such
Shareholder sell any such stock without having first offered it to
others in accordance with the terms and conditions of this Article;
provided, however, that if the consent required by this Paragraph is
granted, the transferee shall accept such stock subject to all the re-
strictions, terms, and conditions herein contained.
In the event any of the Shareholders shall desire to sell any
portion or all of his, her, or its capital stock of the Corporation, and
shall not have received the prior written consent of the Corporation,
he, she, or it may sell the same only after offering it to others in the
following manner:
The Shareholder desiring to sell all or part of his, her, or
its stock shall serve notice upon the Corporation and all other
Shareholders by registered mail, return receipt requested,
indicating that he, she, or it has a bona fide offer for the sale
of such of his, her, or its stock for a price consisting only of
cash, stating the number of shares to be sold, the name and address
of the person desiring to purchase same and the sales price and
terms of payment of such sale; said notice shall also contain an
offer to sell such stock upon the terms and conditions as set forth
in the aforesaid bona fide offer of sale.
For a period of thirty (30) days after the mailing of such
notice the Corporation shall have the option to redeem the stock so
offered. If the Corporation fails to exercise such option the
other Shareholders shall have the option to purchase such stock pro
rata to their then existing holdings within thirty (30) days after
the termination of the Corporation's option to redeem.
In the event that neither the Corporation nor the other
Shareholders shall exercise the option to redeem or purchase, as
the case may be, as provided herein, the offering Shareholder shall
be free to dispose of the shares of stock so offered to the person
named in the aforesaid bona fide offer of purchase at the price and
upon the terms and conditions set forth in his offer; provided,
however, that such disposition must be made within ninety (90) days
following the termination of the Shareholders' option.
The manner of payment by the Corporation or the other
Shareholders shall be the same as set forth in the notice from the
party desiring to sell said stock, i.e., the terms set forth in
said bona fide offer.
The Corporation shall cause each and every certificate of capital
stock of the Corporation whether presently or hereafter issued to be
endorsed as follows:
"NOTICE IS HEREBY GIVEN that the sale, assignment, transfer, pledge
or other disposition of the shares of capital stock represented by
this certificate are subject to certain restrictions contained in
ARTICLE THIRD of the Articles of Incorporation and that the right
to purchase or subscribe for any additional shares of stock of the
Corporation is restricted as provided in said ARTICLE THIRD of the
Articles of Incorporation."
In addition the Corporation shall cause any certificates of
capital stock issued pursuant to a certain Common Stock Purchase
Warrant dated October 23, 1968, to be further endorsed with a
legend as provided in Paragraph 10 of said Common Stock Purchase
Warrant.
That a true copy of the Articles of Incorporation and said
Purchase Warrant is and shall remain on file in the office of the
President of the Corporation.
IV.The number of shares of stock of the Corporation outstanding
and the number of shares entitled to vote on the foregoing amendment was
820,000 shares of common stock, par value $.50 per share.
V.The foregoing amendment was, in accordance with the provisions
of The General and Business Corporation Law of Missouri, adopted by the
unanimous vote of the full Board of Directors at a special meeting of
said Board duly called and held for the sole purpose of recommending to
the sole Shareholder that the Articles of Incorporation be amended as
herein above provided. Further said Amendment was adopted by the
written consent duly executed by the sole Shareholder of the Corporation
entitled to vote thereon, such consent having the same force and effect
as a unanimous vote of the Shareholders thereon at a meeting duly held.
Accordingly, the number of shares of the Corporation voted for the
amendment was 820,000 and the number voted against the amendment was
none.
IN WITNESS WHEREOF, this Certificate of Amendment has been executed
by the Corporation by its President and by its Secretary on this 26th
day of July, 1978.
AMERICAN MULTI-CINEMA, INC.
By /s/ S. H. Durwood
Stanley H. Durwood, President
By /s/ Alan K. Benjamin
Alan K. Benjamin, Secretary
STATE OF MISSOURI)
) SS.
COUNTY OF JACKSON)
I, Ruth Ann Simison, a notary public, do hereby certify that on
this 26th day of July, 1978, personally appeared before me Stanley H.
Durwood, who being by me first duly sworn, declared that he is the
President of American Multi-Cinema, Inc., that he signed the foregoing
document as President of the Corporation, and that the statements
therein contained are true.
/s/ Ruth Ann Simison
Notary Public
My commission expires March 31, 1980
<PAGE>
Amendment of Articles of Incorporation
(To be submitted in duplicate by an attorney)
HONORABLE JAMES C. KIRKPATRICK
SECRETARY OF STATE
STATE OF MISSOURI
JEFFERSON CITY, MO. 65101
Pursuant to the provisions of The General and Business Corporation
Law of Missouri, the undersigned Corporation certifies the following:
(1)The present name of the Corporation is AMERICAN MULTI-CINEMA,
INC.
The name under which it was originally organized was AMERICAN ROYAL
CINEMA, INC.
(2)An amendment to the Corporation's Articles of Incorporation
was adopted by the shareholders on June 21, 1976.
(3)Article # Sixth is amended to read as follows:
The number of directors to constitute the board of directors of the
corporation is five. Directors need not be shareholders unless the
bylaws of the corporation require them to be shareholders.
(4)Of the 820,000 shares outstanding, 820,000 of such shares were
entitled to vote on such amendment.
The number of outstanding shares of any class entitled to vote
thereon as a class were as follows:
Number of
Class Outstanding Shares
Common 820,000
(5)The number of shares voted for and against the amendment was
as follows:
ClassNo. Voted For No. Voted Against
Common 820,000 -0-
(6)If the amendment changed the number or par value of authorized
shares having a par value the amount in dollars of authorized shares
having a par value as changed is:
N/A
If the amendment changed the number of authorized shares without
par value, the authorized number of shares without par value as changed
and the consideration proposed to be received for such increased
authorized shares without par value as are to be presently issued are:
N/A
<PAGE>
IN WITNESS WHEREOF, the undersigned, S.H. Durwood, President, has
executed this instrument and its Secretary, Alan K. Benjamin, has
affixed its corporate seal hereto and attested said seal on the 23rd day
of June, 1976.
PLACE
CORPORATE SEAL
HERE
(IF NO SEAL, STATE "NONE")
AMERICAN MULTI-CINEMA, INC.
(Name of Corporation)
ATTEST:
/s/ Alan K. BenjaminBy: /s/ S.H. Durwood
SecretaryPresident
STATE OF MISSOURI)
) SS.
COUNTY OF JACKSON)
I, Ruth Ann Simison, a notary public, do hereby certify that on
this 23rd day of June, 1976, personally appeared before me S.H. Durwood
who, being by me first duly sworn, declared that he is the President of
American Multi-Cinema, Inc., that he signed the foregoing document as
President of the corporation, and that the statements therein contained
are true.
/s/ Ruth Ann Simison
Notary Public
<PAGE>
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION OF
AMERICAN ROYAL CINEMA, INC.
I, STANLEY H. DURWOOD, do hereby certify the following with
reference to the proceedings for the amendment of the Articles of
Incorporation of American Royal Cinema, Inc, a Missouri corporation:
Whereas, the resolution hereinafter set forth was adopted by the
Board of Directors of said corporation voting unanimously therefor at a
meeting held on the 13th day of May, 1969, at 1806 Power and Light
Building, Kansas City, Missouri, pursuant to written waiver of notice of
the time, place and purpose of said meeting, duly signed by all of the
members of said Board; and
Whereas, a meeting of the shareholders of said corporation was held
pursuant to call of the Board of Directors pursuant to written waiver of
notice of the time, place and purpose of said meeting, duly signed by
all of the shareholders, at 1806 Power and Light Building, Kansas City,
Missouri, on the 13th day of May, 1969, to consider adoption of the
resolution hereinafter set forth, a copy of which had been duly served
upon said shareholders; and
Whereas, I, Stanley H. Durwood, acted as chairman of said meeting
of shareholders:
Now Therefore, pursuant to the provisions of Section 351.095,
Revised Statutes of Missouri, I, Stanley H. Durwood, do certify:
1.The name of the corporation is American Royal Cinema, Inc.
2.The resolution presented and adopted at said meeting of
shareholders was as follows:
Resolved, that Article I of the Articles of Incorporation
which now reads: The name of the corporation is American Royal
Cinema, Inc, be amended to read as follows: The name of the
corporation is American Multi-Cinema, Inc.
3.On the date said resolution was adopted, the total number of
outstanding shares of stock of this corporation entitled to vote at said
meeting was 820,000 shares; at said meeting 820,000 shares voted in
favor of the adoption of said resolution, and no shares voted against
it.
IN WITNESS WHEREOF, I, STANLEY H. DURWOOD, Chairman of the meeting
of stockholders above mentioned, have signed this Certificate, and the
Secretary of American Royal Cinema, Inc, has affixed thereto the
corporate seal of the Corporation and attested said seal hereon to be
hereto affixed this 13th day of May, 1969.
/s/ S. H. Durwood
STANLEY H. Durwood
Attest:
/s/ Alan Benjamin
Secretary of American Royal Cinema, Inc.
STATE OF MISSOURI)
) SS.
COUNTY OF JACKSON)
I, ___________________, first being duly sworn, on my oath state
that the facts set forth in the foregoing certificate are true.
/s/ S. H. Durwood
Subscribed and sworn to before me, a Notary Public, at my office in
Jackson County, Missouri, on this 19th day of May, 1969.
My Commission expires 12-19, 1972
/s/ Rosalie Wise
STATE OF MISSOURI)
) SS.
COUNTY OF JACKSON)
On this 19th day of May, 1969, before me, a Notary Public,
personally appeared S. H. Durwood, to me known to be the person
described in and who executed the foregoing instrument, and acknowledged
that he executed the same as his free act and deed.
In Witness Whereof, I have hereunto set my hand and affixed my
official seal at my office in Jackson County the day and year first
above written.
My term of office as Notary Public will expire 12-19-72.
/s/ Rosalie Wise
Notary Public
<PAGE>
CERTIFICATE OF AMENDMENT OF INCORPORATION
OF
AMERICAN ROYAL CINEMA, INC.
The undersigned, American Royal Cinemas, Inc., a Missouri cor-
poration (the "Corporation"), for the purpose or amending the Articles or
Incorporation of the Corporation in accordance with The General and
Business Corporation Law of Missouri, does hereby make and execute this
Certificate of Amendment of Articles of Incorporation:
I.The name of the Corporation in American Royal Cinemas Inc.
II.The amendment set forth below was adopted by the shareholders
of the Corporation on September 30, 1968.
III.The following resolution sets forth the amendment adopted
RESOLVED that this corporation amend its Articles of
Incorporation by striking therefrom the provisions of Article SIXTH
as presently constituted and substituting in lieu hereof the
followings
"SIXTH. The number or directors to constitute the board
of directors or the corporation is six. Directors need not be
shareholders unless the bylaws of the corporation require them
to be shareholders."
IV.The number of shares of stock of the Corporation outstanding
and the number or shares entitled to vote on the foregoing amendment was
1,000 shares of common stock par value $.50 per share.
V.The foregoing amendment was, in accordance with the provisions
of the General and Business Corporation Law of Missouri, adopted by
written consent signed by all of the shareholders of the Corporation
entitled to vote thereon, such consent having the same force and effect
as a unanimous vote of the shareholders thereon at a meeting duly held.
Accordingly, the number of shares of the Corporation voted for the
amendment was 1,000 and the number voted against the amendment was none.
IN WITNESS WHEREOF, this Certificate of Amendment has been executed
by the Corporation by its President and by its Assistant Secretary on
this 30th day of September, 1968.
AMERICAN ROYAL CINEMA, INC.
By /s/ S. H. Durwood
Stanley H. Durwood
By /s/ Frank S. Rutkowski
Frank S. Rutkowski, Assistant Secretary
STATE OF MISSOURI)
) ss.
COUNTY OF JACKSON)
I, Barbara L. Barton, a notary public, do hereby certify that on
this 30th day of September, 1968, personally appeared before me Stanley
H. Durwood, who being by me first duly sworn, declared that he is the
President of American Royal Cinema, Inc., that he signed the foregoing
document as President of the corporation, and that the statements
therein contained are true.
/s/ Barbara L. Barton
Notary Public
(NOTARIAL SEAL)
My commission expires May 9, 1970.
<PAGE>
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
OF
AMERICAN ROYAL CINEMA, INC.
The undersigned, American Royal Cinema, Inc., a Missouri
corporation (the "Corporation"), for the purpose of amending the Articles
of Incorporation of the Corporation, in accordance with The General and
Business Corporation Law of Missouri, does hereby make and execute this
Certificate of Amendment of Articles of Incorporation:
I.The name of the Corporation is American Royal Cinema, Inc.
II.The amendment set forth below was adopted by the shareholders
of the Corporation on September 18, 1968.
III.The following resolution sets forth the amendment adopted:
RESOLVED, that this corporation amend its Articles of Incorporation
in the following manner:
By striking therefrom the provisions of article THIRD as
presently constituted and substituting in lieu thereof the
following:
"THIRD. The aggregate number of shares which
the corporation shall have authority to issue shall
be 1,100,000 shares of common stock, each of the par
value of $.50 per share.
"Upon the effectiveness of this amendment, all
of the issued and outstanding shares of common stock
of the corporation of the par value of $10.00 per
share shall be, and they hereby are, reclassified as
and converted into shares of common stock of the
corporation of the par value of $.50 per share, on
the basis of twenty shares of $.50 par value common
stock of the corporation for each share of the
corporation's $10.00 par value common stock.
"From and after the effectiveness of this
amendment, each stock certificate formerly
representing shares of the corporation's $10.00 par
value common stock outstanding immediately prior to
the effectiveness of this amendment shall, without
further action, represent shares of the
corporation's common stock of the par value of $.50
each on the basis of twenty shares of $.50 par value
common stock for each share of $10.00 par value
common stock formerly represented by such
certificate."
IV.The number of shares of stock of the Corporation outstanding
and the number of shares entitled to vote on the foregoing amendment was
50 shares of common stock, par value $10.00 per share.
V.The foregoing amendment was, in accordance with the provisions
of The General and Business Corporation Law of Missouri, adopted by
written consent signed by the sole shareholder of the Corporation
entitled to vote thereon, such consent having the same force and effect
as a unanimous vote of the shareholders thereon at a meeting duly held.
Accordingly, the number of shares of the Corporation voted for the
amendment was 50 and the number voted against the amendment was none.
VI.As changed, the amount, in dollars, of the authorized shares
having a par value is $550,000.
VII. The fifty (50) shares of issued and outstanding common
stock of the par value $10.00 per share will be reclassified into new
shares of common stock of the par value of $.50 per share on the basis
of twenty (20) of the new shares of common stock of the par value of
$.50 for each share of the issued and outstanding common stock of the
par value of $10.00 per share.
IN WITNESS WHEREOF, this Certificate of Amendment has been executed
by the Corporation by its President and by its Assistant Secretary on
this 18th day of September, 1968.
AMERICAN ROYAL CINEMA, INC.
By: /s/ S. H. Durwood
Stanley H. Durwood, President
[CORPORATE SEAL]By: /s/ Ruth A. Simison
Ruth A . Simison, Assistant Secretary
<PAGE>
STATE OF Missouri)
) SS.
COUNTY OF Jackson)
I, Barbara L. Barton, a notary public, do hereby certify that on
this 18th day of September, 1968, personally appeared before me Stanley
M. Durwood, who being by me first duly sworn, declared that he is the
President of American Royal Cinema, Inc., that he signed the foregoing
document as President of the corporation, and that the statements
therein contained are true.
/s/ Barbara L. Barton
(NOTARIAL SEAL)
My commission expires May 9, 1970
<PAGE>
ARTICLES OF INCORPORATION
OF
AMERICAN ROYAL CINEMA, INC.
The undersigned, being a natural person of the age of twenty-one
years or more, for the purpose of forming a corporation under "The
General and Business Corporation Law of Missouri", does hereby adopt the
following Articles of Incorporation:
FIRST. The name of the corporation is:
AMERICAN ROYAL CINEMA, INC.
SECOND. The address of its initial registered office in the State
of Missouri is 1806 Baltimore Avenue, Kansas City, Missouri, and the
name of its initial registered agent at such address is Stanley H.
Durwood.
THIRD. The aggregate number of shares which the corporation shall
have authority to issue shall be 3,000 shares of common stock, each of
the par value of $10.00 per share.
No holder of any shares of the corporation shall be entitled as
such, as a matter of right, to purchase or subscribe for any shares of
stock of the corporation of any class, whether now or hereafter au-
thorized or whether issued for cash, property or services or as a
dividend or otherwise, or to purchase or subscribe for any obligations,
bonds, notes, debentures, other securities or stock convertible into
shares of stock of the corporation or carrying or evidencing any right
to purchase shares of stock of any class.
FOURTH. The number of shares to be issued before the corporation
shall commence business is 50 shares of common stock of the par value of
$10.00 per share, and the consideration to be paid therefor and the
stated capital with which the corporation will commence business is Five
Hundred Dollars ($500). The corporation will not commence business
until consideration of the value of at least Five Hundred Dollars ($500)
has been received for the issuance of shares of the corporation.
FIFTH. The name and place of residence of the incorporator is as
follows:
Name Residence
James L. Viani 25 East 67th Street
Kansas City, Missouri
SIXTH. The number of directors to constitute the board of
directors of the corporation is four. Directos need not be shareholders
unless the bylaws of the corporation require them to be shareholders.
SEVENTH. The duration of the corporation is perpetual.
EIGHTH. This corporation is formed for the following purposes:
(a)To exhibit, play or otherwise display and reproduce, for
all purposes, still arid motion pictures, sound films, plays and other
dramatic works, operas, concerts, music and musical works, news, in-
struction, entertainment, advertising, educational and informative
matters or any of them; to produce or procure the production of scenes,
acts, plays, concerts, exhibitions, theatrical performances and the
like, and in connection therewith, to manufacture, purchase or otherwise
acquire sceneries, costumes and other theatrical properties and
accessories; to employ actors, singers, musicians and other persons
suitable in connection therewith; to acquire scenarios, plays, stories,
poems, songs, musical pieces and the like, and the rights to the use
thereof; to purchase, lease or otherwise acquire, manage, operate,
control, hold, own, use, improve, develop, sell, lease or otherwise
dispose of, mortgage and otherwise encumber, theatres and other
amusement places of every kind and description and any and all interests
or rights therein; and to carry on a general moving picture, theatrical
and amusement business and every branch thereof.
(b)To own and conduct theatrical booking agencies, and to
act as a commission or general or special agent for corporations, firms
or individuals in connection therewith.
(c)To buy, lease, rent or otherwise acquire, own, hold, use,
divide, partition, develop, improve, operate and sell, lease, mortgage
or otherwise dispose of, deal in and turn to account real estate,
leaseholds and any and all interests or estates therein or appertaining
thereto; and to construct, manage, operate, improve, maintain and
otherwise deal with buildings, structures and improvements situated or
to be situated on any real estate or leasehold.
(d)To engage in any mining, manufacturing, chemical,
metallurgical, processing or related business, and to buy, lease, con-
struct or otherwise acquire, own, hold, use, sell, lease, mortgage or
otherwise dispose of, plants, works, facilities and equipment therefor.
(e)To buy utilize, lease, rent, import, export, manufacture,
produce, design, prepare, assemble, fabricate, improve, develop, sell,
lease, mortgage, pledge, hypothecate, distribute and otherwise deal in
at wholesale, retail or otherwise and as principal, agent or otherwise,
all commodities, goods, wares, merchandise, machinery, tools, devices,
apparatus, equipment and all other personal property, whether tangible
or intangible, of every kind without limitation as to description,
location or amount.
(f)To apply for, obtain, purchase, lease, take licenses in
respect of or otherwise acquire, and to hold, own, use, operate, enjoy,
turn to account, grant licenses in respect of, manufacture under, in-
troduce, sell, assign, mortgage, pledge or otherwise dispose of:
1.Any and all inventions, devices, processes and
formulae and any improvements and modifications thereof;
2.Any and all letters patent of the United States or
of any other country, state or locality, and all rights
connected therewith or appertaining thereto;
3.Any and all copyrights granted by the United States
or any other country, state or locality;
4.Any and all trademarks, trade names, trade symbols
and other indications of origin and ownership granted by or
recognized under the laws of the United States or of any other
country, state or locality; and to conduct and carry on its
business in any or all of its various branches under any trade
name or trade names.
(g)To engage in, carry on and conduct research, experiments,
investigations, analyses, studies and laboratory work, for the purpose
of discovering new products or to improve products, articles and things,
and to buy, construct or otherwise acquire, own, operate, maintain,
lease, sell, mortgage or otherwise dispose of, laboratories and similar
facilities, plants and any and all other establishments, and to procure,
construct, own, use, hold and dispose of all necessary equipment in re-
spect thereof, for the purposes aforesaid.
(h)To enter into any lawful contract or contracts with
persons, firms, corporations, other entities, governments or any
agencies or subdivisions thereof, including guaranteeing the performance
of any contract or any obligation of any person, firm, corporation or
other entity.
(i)To purchase and acquire, as a going concern or otherwise,
and to carry on, maintain and operate all or any part of the property or
business of any corporation, firm, association, entity, syndicate or
person whatsoever, deemed to be of benefit to the corporation, or of use
in any manner in connection with any of its purposes; and to dispose
thereof upon such terms as may seem advisable to the corporation.
(j)To purchase or otherwise acquire, hold, sell, pledge, re-
issue, transfer or otherwise deal in, shares of the corporation's own
stock, provided that it shall not use its funds or property for the
purchase of its own shares of stock when such use would be prohibited by
law, by the articles of incorporation or by the bylaws of the corpora-
tion; and, provided further, that shares of its own stock belonging to
it shall not be voted upon directly or indirectly.
(k)To invest, lend and deal with moneys of the corporation
in any lawful manner, and to acquire by purchase, by the exchange of
stock or other securities of the corporation, by subscription or
otherwise, and to invest in, to hold for investment or for any other
purpose, and to use, sell, pledge or otherwise dispose of, and in
general to deal in any interest concerning or enter into any transaction
with respect to (including "long" and "short" sales of) any stocks, bonds,
notes, debenture certificates, receipts and other securities and
obligations of any government, state, municipality, corporation,
association or other entity including individuals and partnerships and,
while owner thereof, to exercise all of the rights, powers and
privileges of ownership, including among other things, the right to vote
thereon for any and all purposes and to give consents with respect
thereto.
(l)To borrow or raise money for any purpose of the
corporation and to secure any loan, indebtedness or obligation of the
corporation and the interest accruing thereon, and for that or any other
purpose to mortgage, pledge, hypothecate or charge all or any part of
the present of hereafter acquired property, rights and franchises of the
corporation, real, personal, mixed or of any character whatever, subject
only to limitations specifically imposed by law.
(m)To do any or all of the things hereinabove enumerated
along for its own account, or for the account of others, or as the agent
for others, or in association with others or by or through others, and
to enter into all lawful contracts and undertakings in respect thereof.
(n)To have one or more offices, to conduct its business,
carry on its operations and promote its objects within and without the
State of Missouri, in other states, the District of Columbia, the
territories, colonies and dependencies of the United States, in foreign
countries and anywhere in the world, without restriction as to place,
manner or amount, but subject to the laws applicable thereto; and to do
any or all of the things herein set forth to the same extent as a
natural person might or could do and in any part of the world, either
alone or in company with others.
(o)In general, to carry on any other business in connection
with each and all of the foregoing or incidental thereto, and to carry
on, transact and engage in any and every lawful business or other lawful
thing calculated to be of gain, profit or benefit to the corporation as
fully and freely as a natural person might do, to the extent and in the
manner, and anywhere within and without the State of Missouri, as it may
from time to time determine; and to have and exercise each and all of
the powers and privileges, either direct or incidental, which are given
and provided by or are available under the laws of the State of Missouri
in respect of general and business corporations organized for profit
thereunder; provided, however, that the corporation shall not engage in
any activity for which a corporation may not be formed under the laws of
the State of Missouri.
None of the purposes and powers specified in any of the paragraphs
of this Article EIGHTH shall be in any way limited or restricted by
reference to or inference from the terms of any other paragraph, and the
purposes and powers specified in each of the paragraphs of this Article
EIGHTH shall be regarded as independent purposes and powers. The
enumeration of specific purposes and powers in this Article EIGHTH shall
not be construed to restrict in any manner the general purposes and
powers of this corporation, nor shall the expression of one thing be
deemed to exclude another, although it be of like nature. The
enumeration of purpose or powers herein shall not be deemed to exclude
or in any way limit by inference any purposes or powers which this
corporation has power to exercise, whether expressly by the laws of the
State of Missouri, now or hereafter in effect, or impliedly by any
reasonable construction of such laws.
NINTH. (a) Except as may be otherwise specifically provided by
statute, or the articles of incorporation or the bylaws of the cor-
poration, as from time to time amended, all powers of management, direc-
tion and control of the corporation shall be, and hereby are, vested in
the board of directors.
(b)The bylaws of the corporation may from time to time be
altered, amended, suspended or repealed, or new bylaws may be adopted,
in either of the following ways: (i) by the affirmative vote, at any
annual or special meeting of the shareholders, of the holders of a
majority of the outstanding shares of stock of the corporation entitled
to vote, or (ii) by resolution adopted by a majority of the full board
of directors; provided, however, that the power of the directors to
alter, amend, suspend or repeal the bylaws or any portion thereof may be
denied as to any bylaws or portion thereof enacted by the shareholders
if at the time of such enactment the shareholders shall so expressly
provide.
(c)The corporation may agree to the terms and condition upon
which any director or officer accepts his office or position and in its
bylaws or by contract may agree to indemnify and protect each and all of
such persons and any person who, at the request of the corporation,
served as a director or officer of another corporation in which this
corporation owned stock against all costs and expenses reasonably
incurred by any or all of them, and all liability imposed or threatened
to be imposed upon any or all of them, by reason of or arising out of
their or all of them being or having been a director or officer of this
corporation or of such other corporation; but any such bylaw or
contractual provision shall not be exclusive of any other right or
rights of any such director or officer to be indemnified and protected
against such costs and liabilities which he may otherwise possess.
TENTH. Except as may be otherwise provided by the bylaws of the
corporation, no contract or other transaction between this corporation,
and any other firm or corporation shall be affected or invalidated by
reason of the fact that any director or officer of this corporation is
interested in, or is a member, shareholder, director or officer of such
other firm or corporation; and any director or officer of this
corporation individually or jointly with one or more other directors or
officers of this corporation, may be a party to, or may be interested
in, any contract or transaction of this corporation or in which this
corporation is interested, and no such contract or transaction shall be
affected or invalidated thereby; and each and every person who may
become a director or officer of this corporation is hereby relieved from
any liability that might otherwise exist from his contracting with this
corporation for the benefit of himself or any person, firm, association
or corporation in which he may be in any wise interested.
ELEVENTH. The directors shall have power to hold their meeting and
to keep the books (except any books required to be kept in the State of
Missouri, pursuant to the laws thereof) at any place within or without
the State of Missouri.
TWELFTH. The corporation reserves the right to alter, amend or
repeal any provision contained in its articles of incorporation in the
manner now or hereafter prescribed by the statutes of Missouri, and all
rights and powers conferred herein are granted subject to this reserva-
tion; and, in particular, the corporation reserves the right and privi-
lege to amend its articles of incorporation from time to time so as to
authorize other or additional classes of shares (including preferential
shares), to increase or decrease the number of shares of any class now
or hereafter authorized, to establish, limit or deny to shareholders of
any class the right to purchase or subscribe for any shares of stock of
the corporation of any class, whether now or hereafter authorized or
whether issued for cash, property or services or as a dividend or
otherwise, or to purchase or subscribe for any obligations, bonds,
notes, debentures, or securities or stock convertible into shares of
stock of the corporate or carrying or evidencing any right to purchase
shares of stock of any class, and to vary the preferences, priorities,
special powers, qualifications, limitations, restrictions and the
special or relative rights or other characteristics in respect of the
shares of each class, and to accept and avail itself of, or subject
itself to, the provisions of any statutes of Missouri hereafter enacted
pertaining to general and business corporations, to exercise all the
rights, powers and privileges conferred upon corporations organized
thereunder or accepting the provisions thereof and to assume the
obligations and duties imposed therein, upon the affirmative vote of the
holders of a majority of the shares of stock entitled to vote thereon,
or, in the event the laws of Missouri require a separate vote by classes
of shares, upon the affirmative vote of the holders of a majority of the
shares of each class whose separate vote is required thereon.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
24th day of July, 1968.
/s/ James L. Viani
James L. Viani
STATE OF Missouri)
) SS.
COUNTY OF Jackson)
I, Barbara L. Barton, a notary public, do hereby certify that on
the 24th day of July, 1968, personally appeared before me, James L.
Viani who being by me first duly sworn, declared that he is the person
who signed the foregoing document as incorporator, and that the
statements therein contained are true.
/s/ Barbara L. Barton
Notary Public
(NOTARIAL SEAL)
My commission expires: May 9, 1970
EXHIBIT 3.5
BYLAWS
OF
AMERICAN MULTI-CINEMA, INC.
as amended
Offices and Records
1.(a) Registered Office and Registered Agent. The location of the
registered office and the name of the registered agent of the corporation
in the State of Missouri shall be such as shall be determined from time to
time by the board of directors and on file in the appropriate office of the
State of Missouri pursuant to applicable provisions of law. Unless
otherwise permitted by law, the address of the registered office of the
corporation and the address of the business office of the registered agent
shall be identical.
(b) Corporate Offices. The corporation may have such corporate
offices anywhere within or without the State of Missouri as the board of
directors from time to time may determine or the business of the
corporation may require. The "principal place of business" or "principal
business" or "executive" office or offices of the corporation may be fixed
and so designated from time to time by the board of directors, but the
location or residence of the corporation in Missouri shall be deemed for
all purposes to be in the county in which its registered office in Missouri
is maintained.
2.(a) Records. The corporation shall keep at its registered
office, or principal place of business, in Missouri, original or duplicate
books in which shall be recorded the number of its shares subscribed, the
names of the owners of its shares, the numbers owned of record by them
respectively, the amount of shares paid, and by whom, the transfer of said
shares with the date of transfer, the amount of its assets and liabilities,
and the names and places of residence of its officers, and from time to
time such other or additional records, statements, lists, and information
as may be required by law, including the shareholders' lists mentioned in
paragraph 10 of these bylaws.
(b) Inspection of Records. A shareholder, if he be entitled and
demands to inspect the records of the corporation pursuant to any statutory
or other legal right, shall be privileged to inspect such records only
during the usual and customary hours of business and in such manner as will
not unduly interfere with the regular conduct of the business of the
corporation. A shareholder may delegate his right of inspection to a
certified or public accountant on the condition, to be enforced at the
option of the corporation, that the shareholder and accountant agree with
the corporation to furnish to the corporation promptly a true and correct
copy of each report with respect to such inspection made by such
accountant. No shareholder shall use, permit to be used or acquiesce in
the use by others of any information so obtained to the detriment
competitively of the corporation, nor shall he furnish or permit to be
furnished any information so obtained to any competitor or prospective
competitor of the corporation. The corporation as a condition precedent to
any shareholder's inspection of the records of the corporation may require
the shareholder to indemnify the corporation, in such manner and for such
amount as may be determined by the board of directors, against any loss or
damage which may be suffered by it arising out of or resulting from any
unauthorized disclosure made or permitted to be made by such shareholder of
information obtained in the course of such inspection.
Seal
3.Corporate Seal. The corporate seal shall have inscribed thereon
the name of the corporation and the words: Corporate Seal - Missouri. Said
seal may be used by causing it or a facsimile thereof to be impressed or
affixed or in any manner reproduced.
Shareholders' Meetings
4.Place of Meetings. All meetings of the shareholders shall be
held at the principal business office of the corporation in Missouri,
except such meetings as the board of directors to the extent permissible by
law expressly determines shall be held elsewhere, in which case such
meetings may be held, upon notice thereof as hereinafter provided, at such
other place or places, within or without the State of Missouri, as the
board of directors shall have determined, and as shall be stated in such
notice; and, unless specifically prohibited by law, any meeting may be held
at any place and time, and for any purpose, if consented to in writing by
all of the shareholders entitled to vote thereat.
5.(a) Annual Meetings. An annual meeting of the shareholders
shall be held on the second Thursday of November of each year, if not a
legal holiday, and if a legal holiday then on the next secular day
following, at 11:30 a.m., when they shall elect a Board of Directors and
transact such other business as may properly be brought before the meeting.
(b) Special Meetings. Special meetings of the shareholders may
be held for any purpose or purposes and may be called by the chairman of
the board, by the president, by the secretary, by the board of directors,
or by the holders of, or by any officer or shareholder upon the written
request of the holders of, not less than one-fifth of all outstanding
shares entitled to vote at any such meeting, and shall be called by any
officer directed to do so by the board of directors.
The "call" and the "notice" of any such meeting shall be deemed to be
synonymous.
(c) Consent of Shareholders in Lieu of Meeting. Any action
required to be taken or which may be taken at a meeting of the shareholders
may be taken without a meeting if consents in writing, setting forth the
action so taken, shall be signed by all of the shareholders entitled to
vote with respect to the action so taken. The secretary shall file such
consents with the minutes of the meetings of the shareholders.
6.(a) Notice. Written or printed notice of each meeting of the
shareholders, whether annual or special, stating the place, day and hour of
the meeting, and, in case of a special meeting, the purpose or purposes
thereof, shall be delivered or given to each shareholder entitled to vote
thereat, either personally or by mail, not less than ten (10) days or more
than fifty (50) days prior to the meeting, unless, as to a particular
matter, other or further notice is required by law, in which case such
other or further notice shall be given. In addition to such written or
printed notice, published notice shall be given if (and in the manner) then
required by law.
Any notice of a shareholders' meeting sent by mail shall be deemed to
be delivered when deposited in the United States mail with postage thereon
prepaid addressed to the shareholder at his address as it appears on the
records of the corporation.
(b) Waiver of Notice. Whenever any notice is required to be
given under the provisions of these bylaws, or of the articles of
incorporation or of any law, a waiver thereof in writing signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed the equivalent to the giving of such
notice.
To the extent provided by law, attendance of a shareholder at any
meeting shall constitute a waiver of notice of such meeting.
(c) Presiding Officials. Every meeting of the shareholders, for
whatever object, shall be convened by the president, or by the officer or
person who called the meeting by notice as above provided, but it shall be
presided over by the officers specified in paragraphs 28, 29, and 30 of
these bylaws; provided, however, that the shareholders at any meeting, by a
majority vote in amount of shares represented thereat, and notwithstanding
anything to the contrary contained elsewhere in these bylaws, may select
any persons of their choosing to act as chairman and secretary of such
meeting or any session thereof.
7.(a) Business which may be Transacted at Annual Meetings. At
each annual meeting of the shareholders, the shareholders shall elect a
board of directors to hold office until the next succeeding annual meeting
or until their successors shall have been elected and qualified and they
may transact such other business as may be desired, whether or not the same
was specified in the notice of the meeting, unless the consideration of
such other business without its having been specified in the notice of the
meeting as one of the purposes thereof, is prohibited by law.
(b) Business which may be Transacted at Special Meetings.
Business transacted at all special meetings shall be confined to the
purposes stated in the notice of such meeting, unless the transaction of
other business is consented to by the holders of all of the outstanding
shares of stock of the corporation entitled to vote thereat.
8.Quorum. Except as otherwise may be provided by law or by the
articles of incorporation, the holders of a majority of the outstanding
shares entitled to vote thereat, present in person or by proxy, shall
constitute a quorum for the transaction of business at all meetings of the
shareholders. Every decision of a majority in amount of shares of such
quorum shall be valid as a corporate act, except in those specific
instances in which a larger vote is required by law or by the articles of
incorporation. If, however, such quorum should not be present at any
meeting, the shareholders present and entitled to vote shall have power
successively to adjourn the meeting, without notice to any shareholder
other than announcement at the meeting, to a specified date not longer than
90 days after such adjournment. At any subsequent session of the meeting
at which a quorum is present in person or by proxy any business may be
transacted which could have been transacted at the initial session of the
meeting if a quorum had been present.
9.(a) Proxies. At any meeting of the shareholders every
shareholder having the right to vote shall be entitled to vote in person or
by proxy executed in writing by such shareholder or by his duly authorized
attorney-in-fact. No proxy shall be valid after eleven months from the
date of its execution, unless otherwise provided in the proxy.
(b) Voting. Each shareholder shall have one vote for each share
of stock entitled to vote under the provisions of the articles of
incorporation and which is registered in his name on the books of the
corporation; but in the election of directors cumulative voting shall
prevail. Accordingly, each shareholder shall have the right to cast as
many votes in the aggregate as shall equal the number of voting shares so
held by him, multiplied by the number of directors to be elected at such
election, and he may cast the whole number of such votes for one candidate
or distribute them among two or more candidates. Directors shall not be
elected in any other manner, unless such cumulative voting be unanimously
waived by all shareholders present.
No person shall be admitted to vote on any shares belonging or
hypothecated to the corporation.
If the board of directors shall not have closed the transfer books of
the corporation and there shall be no date fixed by the board of directors
or by statute for the determination of its shareholders entitled to vote,
no person shall be admitted to vote directly or by proxy except those in
whose names the shares of the corporation shall stand on the transfer books
at the time of the meeting.
(c) Registered Shareholders - Exceptions - Stock Ownership
Presumed. The corporation shall be entitled to treat the holders of the
shares of stock of the corporation, as recorded on the stock record or
transfer books of the corporation, as the holders of record and as the
holders and owners in fact thereof and, accordingly, the corporation shall
not be required to recognize any equitable or other claim to or interest in
any such shares on the part of any other person, firm, partnership,
corporation or association, whether or not the corporation shall have
express or other notice thereof, except as is otherwise expressly required
by law, and the term "shareholder" as used in these bylaws means one who is
a holder of record of shares of the corporation; provided, however, that if
permitted by law.
(i)shares standing in the name of another corporation, domestic
or foreign, may be voted by such officer, agent or proxy as the bylaws
of such corporation may prescribe, or, in the absence of such
provision, as the board of directors of such corporation may
determine;
(ii)shares standing in the name of a deceased person may be
voted by his administrator or executor, either in person or by proxy;
and shares standing in the name of a guardian, curator, or trustee may
be voted by such fiduciary, either in person or by proxy, but no
guardian, curator, or trustee shall be entitled, as such fiduciary, to
vote shares held by him without a transfer of such shares into his
name;
(iii)shares standing in the name of a receiver may be voted
by such receiver, and shares held by or under the control of a
receiver may be voted by such receiver without the transfer thereof
into his name if authority so to do be contained in an appropriate
order of the court by which such receiver was appointed; and
(iv)a shareholder whose shares are pledged shall be entitled to
vote such shares until the shares have been transferred of record into
the name of the pledgee, and thereafter the pledgee shall be entitled
to vote the shares so transferred.
10.Shareholders' Lists. A complete list of the shareholders
entitled to vote at each meeting of the shareholders, arranged in
alphabetical order, with the address of, and the number of voting shares
held by each, shall be prepared by the officer of the corporation having
charge of the stock transfer books of the corporation, and shall, for a
period of ten (10) days prior to the meeting, be kept on file at the
registered office of the corporation in Missouri and shall at any time
during the usual hours for business be subject to inspection by any
shareholder. Such list or a duplicate thereof shall also be produced and
kept open at the time and place of the meeting and shall be subject to the
inspection of any shareholder during the whole time of the meeting. The
original share ledger or transfer book, or a duplicate thereof kept in the
State of Missouri, shall be prima facie evidence as to who are the
shareholders entitled to examine such list, share ledger or transfer book
or to vote at any meeting of shareholders.
Failure to comply with the foregoing shall not affect the validity of
any action' taken at any such meeting.
Directors
11.Number of Directors. The number of directors to constitute the
board of directors shall be three (3). Hereafter, the number of directors
to constitute the board of directors shall be determined by the
shareholders of the corporation at each annual meeting of the shareholders,
except that the shareholders may create new directorships at any special
meeting. If the number of directors is not determined at any annual
meeting, the number of directors shall remain the same as it was
immediately preceding such meeting. Any change in the number of directors
shall be reported to the Secretary of State of Missouri within 30 calendar
days of such change. Directors need not he shareholders unless the
Articles of Incorporation so require.
12.Powers of the Board. The property and business of the
corporation shall be controlled and managed by the directors, acting as a
board. The board shall have and is vested with all and unlimited powers
and authorities, except as may be expressly limited by law, the articles of
incorporation or these bylaws, to do or cause to be done any and all lawful
things for and in behalf of the corporation to exercise or cause to be
exercised any or all of its powers, privileges and franchises, and to seek
the effectuation of its objects and purposes.
13.Offices. The directors may have one or more offices, and keep
the books of the corporation (except the original or duplicate stock
ledgers, and such other books and records as may by law be required to be
kept at a particular place) at such place or places within or without the
State of Missouri as the board of directors may from time to time
determine.
14.Meetings of the Newly Elected Board - Notice. The members of
each newly elected board shall meet (i) at such time and place, either
within or without the State of Missouri, as shall be suggested or provided
for by resolution of the shareholders at the annual meeting and no notice
of such meeting shall be necessary to the newly elected directors in order
legally to constitute the meeting, provided a quorum shall be present, or
(ii) if not so suggested or provided for by resolution of the shareholders
or if a quorum shall not be present, the members of such board may meet at
such time and place as shall be consented to in writing by a majority of
the newly elected directors, provided that written or printed notice of
such meeting shall be mailed, sent by telegram or delivered to each of the
other directors in the same manner as provided in paragraph 16 of these
bylaws with respect to the giving of notice for special meetings of the
board except that it shall not be necessary to state the purpose of the
meeting in such notice, or (iii) regardless of whether or not the time and
place of such meeting shall be suggested or provided for by resolution of
the shareholders at the annual meeting, the members of such board may meet
at such time and place as shall be consented to in writing by all of the
newly elected directors. Each director, upon his election, shall qualify
by accepting the office of director, and his attendance at, or his written
approval of the minutes of, any meeting of the newly elected directors
shall constitute his acceptance of such office; or he may execute such
acceptance by a separate writing, which shall be placed in the minute book.
15.Regular Meetings - Notice. Regular meetings of the board may be
held without notice at such times and places either within or without the
State of Missouri as shall from time to time be fixed by resolution adopted
by the full board of directors. Any business may be transacted at a
regular meeting.
16.Special Meetings - Notice. Special meetings of the board may be
called at any time by the chairman of the board, the president, any vice
president or the secretary, or by any one or more of the directors. The
place may be within or without the State of Missouri as designated in the
notice.
Written or printed notice of each special meeting of the board,
stating the place, day and hour of the meeting and the purpose or purposes
thereof, shall be mailed to each director at least three (3) days before
the day on which the meeting is to be held, or shall be sent to him by
telegram, or be delivered, at least two (2) days before the day on which
the meeting is to be held. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail with postage thereon
addressed to the director at his residence or usual place of business. If
notice be given by telegraph, such notice shall be deemed to be delivered
when the same is delivered to the telegraph company. The notice may be
given by any officer having authority to call the meeting or by any
director.
"Notice" and "call" with respect to such meetings shall be deemed to be
synonymous.
17.Waiver of Notice. Whenever any notice is required to be given to
any director under the provisions of these bylaws, or of the articles of
incorporation or of any law, a waiver thereof in writing signed by such
director, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
To the extent provided by law, attendance of a director at any meeting
shall constitute a waiver of notice of such meeting.
18.Quorum. At all meetings of the board a majority of the full
board of directors shall, unless a greater number as to any particular
matter is required by the articles of incorporation or these bylaws,
constitute a quorum for the transaction of business, and the act of a
majority of the directors present at any meeting at which there is a
quorum, except as may be otherwise specifically provided by statute, the
articles of incorporation, or these bylaws, shall be the act of the board
of directors.
19.Vacancies. If the office of any director becomes vacant by
reason of death or resignation, a majority of the survivors or remaining
directors, though less than a quorum, may fill the vacancy until a
successor shall have been duly elected at a shareholders' meeting.
20.Action without a Meeting. If all the directors severally or
collectively consent in writing to any election to be taken by the
directors, such consents shall have the same force and effect as a
unanimous vote of the directors at a meeting duly held. The secretary
shall file such consents with the minutes of the meetings of the board of
directors.
21.Indemnification of Directors and Officers.
(a) The Company shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, other than an action by or in the right of the Company, by
reason of the fact that he is or was a director, officer, employee or agent
of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another Company, partnership, joint
venture, trust or other enterprise, against expenses including attorneys'
fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit, or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The Company shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Company to procure a judgment in
its favor by reason of the fact that he is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of
the Company as a director, officer, employee or agent of another Company,
partnership, joint venture, trust or other enterprise against expenses,
including attorneys' fees, actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company; except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable for negligence
or misconduct in the performance of his duty to the Company unless and only
to the extent that the court in which such action or suit was brought
determines upon application that, despite the adjudication of liability and
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the court shall
deem proper.
(c) To the extent that a director, officer, employee or agent of
the Company or a person who is or was serving at the request of the Company
as a director, officer, employee or agent of another Company, partnership,
joint venture, trust or other enterprise has been successful on the merits
or otherwise in defence of any action, suit, or proceeding referred to in
paragraphs (a) and (b), or in defence of any claim, issue or matter
therein, he shall be indemnified against expenses, including attorneys'
fees, actually and reasonably incurred by him in connection with the
action, suit, or proceeding.
(d) Any indemnification under paragraphs (a) and (b), unless
ordered by a court, shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee, or agent is proper in the circumstances because he has
met the applicable standards of conduct set forth in this Section. The
determination shall be made (1) by the board of directors by a majority
vote of a quorum consisting of directors who were not parties to such
action, suit, or proceedings, or (2) if such a quorum is not obtainable,
or, even if obtainable, a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the shareholders.
(e) Expenses incurred in defending a civil or criminal action,
suit, or proceeding may be paid by the Company in advance of the final
disposition of such action, suit, or proceeding as authorized by the board
of directors in the specific case upon receipt of an undertaking by or on
behalf of the director, officer, employee, or agent to repay such amount
unless it shall ultimately be determined that he is entitled to be
indemnified by the Company as authorized in this Section.
(f) The indemnification provided by this Section shall not be
deemed exclusive of any other rights to which those seeking indemnification
may be entitled under any statute, bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be a director, officer,
employee, or agent and shall inure to the benefits of the heirs, executors,
and administrators of such a person.
(g) The Company may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee, or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another Company, partnership, joint venture,
trust, or other enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Company would have the power to indemnify him against
such liability under the provisions of this Section.
(h) For the purpose of this Section, references to "the Company"
include all constituent companies absorbed in consolidation or merger as
well as the resulting or surviving company so that any person who is or was
a director, officer, employee or agent of such a constituent company or is
or was serving at the request of such constituent company as a director,
officer, employee or agent of another company, partnership, joint venture,
trust or other enterprise shall stand in the same position under the
provisions of this Section with respect to the resulting or surviving
company in the same capacity.
22.Committees. The Board of Directors may, by resolution or
resolutions adopted by a majority of the whole board of directors designate
one or more committees of the board of directors each such committee to
consist of two or more directors of the corporation and, to the extent
provided in said resolution or resolutions, to have and exercise all of the
authority of the Board of Directors in the management of the corporation;
provided, however, that the designation of any such committee and the
delegation thereof of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed upon it or
him by law.
The members of any such committee may take actions by written consents
in lieu of meetings and may participate in meetings by means of conference
telephone or similar communications equipment in the same manner as the
Board of Directors. Each such committee shall keep regular minutes of its
proceedings, which minutes shall be recorded in the minute book of the
corporation. The secretary or any assistant secretary of the corporation
may act as secretary for the committee if the committee so requests.
23.Compensation of Directors and Committee Members. Directors and
members of all committees shall not receive any stated salary for their
services as such, but by resolution of the board, a fixed sum and expenses
of attendance, if any, may be allowed for attendance at each regular or
special meeting of the board or committee; provided that nothing herein
contained shall be construed to preclude any director or committee member
from serving the corporation in any other capacity and receiving
compensation therefor.
Officers
24.(a) Officers - Who Shall Constitute. The officers of the
corporation shall be a president, one or more executive vice presidents,
senior vice presidents, and vice presidents, a secretary, a treasurer, one
or more assistant secretaries and one or more assistant treasurers and a
chairman of the board if elected or appointed as herein provided. The
board of directors may at any regular or special meeting thereof, or by
unanimous consent elect or appoint a chairman of the board and thereafter
the powers and duties thereof shall be as elsewhere herein provided in
these bylaws. The board shall elect or appoint a president and secretary
at its first meeting after each annual meeting of the shareholders. The
board then, or from time to time, may also elect or appoint one or more of
the other prescribed officers as it shall deem advisable, but need not
elect or appoint any officers other than a president and a secretary. The
board may, if it desires, further identify or describe any one or more of
such officers, including an identification as General Counsel, if such
officer shall be an attorney also acting in such capacity.
The officers of the corporation need not be members of the board of
directors. Any two or more offices may be held by the same person, except
the offices of president and secretary.
An officer shall be deemed qualified when he enters upon the duties of
the office to which he has been elected or appointed and furnishes any bond
required by the board; but the board may also require of such person his
written acceptance and promise faithfully to discharge the duties of such
office.
(b) Term of Office. Each officer of the corporation shall hold
his office at the pleasure of the board of directors or for such other
period as the board may specify at the time of his election or appointment,
or until his death, resignation or removal by the board, whichever first
occurs. In any event, the term of office of each officer of the
corporation holding his office at the pleasure of the board shall terminate
at the annual meeting of the board next succeeding his election or
appointment and at which any officer of the corporation is elected or
appointed, unless the board provides otherwise at the time of his election
or appointment.
(c) Other Agents. The board from time to time may also appoint
such other agents for the corporation as it shall deem necessary or
advisable, each of whom shall serve at the pleasure of the board or for
such period as the board may specify, and shall exercise such powers, have
such titles and perform such duties as shall be determined from time to
time by the board or by an officer empowered by the board to make such
determinations.
25.Removal. Any officer or agent elected or appointed by the board
of directors, and any employee, may be removed or discharged by the board
whenever in its judgment the best interests of the corporation would be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
26.Salaries and Compensation. Salaries and compensation of all
elected officers of the corporation shall be fixed, increased or decreased
by the board of directors, but this power, except as to the salary or
compensation of the chairman of the board and the president, may, unless
prohibited by law, be delegated by the board to the chairman of the board,
the president, or a committee. Salaries and compensation of all appointed
officers and agents, and of all employees of the corporation, may be fixed,
increased or decreased by the board of directors, but until action is taken
with respect thereto by the board of directors, the same may be fixed,
increased or decreased by the chairman of the board or by such other
officer or officers as may be empowered by the board of the directors to do
so.
27.Delegation of Authority to Hire, Discharge and Designate Duties.
The board from time to time may delegate to the chairman of the board, the
president or other officer or executive employee of the corporation,
authority to hire, discharge and fix and modify the duties, salary or other
compensation of employees of the corporation under their jurisdiction, and
the board may delegate to such officer or executive employee similar
authority with respect to obtaining and retaining for the corporation the
services of attorneys, accountants and other experts.
28.The Chairman of the Board. If a chairman of the board be elected
or appointed, he shall, except as otherwise provided for in paragraph 6(c)
of these bylaws, preside at all meetings of the shareholders and directors
at which he may be present and shall have such other duties, powers and
authority as may be prescribed elsewhere in these bylaws. The board of
directors may delegate such other authority and assign such additional
duties to the chairman of the board, other than those conferred by law
exclusively upon the president, as it may from time to time determine, and,
to the extent permissible by law, the board may designate the chairman of
the board as the chief executive officer of the corporation with all of the
powers otherwise conferred upon the president of the corporation under
paragraph 29 of these bylaws, or it may, from time to time, divide the
responsibilities, duties and authority for the general control and
management of the corporation's business and affairs between the chairman
of the board and the president.
29.The President. Unless the board otherwise provides, the
president shall be the chief executive officer of the corporation with such
general executive powers and duties of supervision and management as
are usually vested in the office of the chief executive officer of a
corporation and he shall carry into effect all directions and resolutions
of the board. Except as otherwise provided for in paragraph 6(c) of these
bylaws, the president, in the absence of the chairman of the board or if
there be no chairman of the board, shall preside at all meetings of the
shareholders and directors.
The president may execute all bonds, notes, debentures, mortgages, and
other contracts requiring a seal, under the seal of the corporation and may
cause the seal to be affixed thereto, and all other instruments for and in
the name of the corporation.
Unless the board otherwise provides, the president, or any person
designated in writing by him, may (i) attend meetings of shareholders of
other corporations to represent this corporation thereat and to vote or
take action with respect to the shares of any such corporation owned by
this corporation in such manner as he or his designee may determine, and
(ii) execute and deliver waivers of notice and proxies for and in the name
of the corporation with respect to any such shares owned by this
corporation.
He shall, unless the board otherwise provides, be ex officio a member
of all standing committees.
He shall have such other or further duties and authority as may be
prescribed elsewhere in these bylaws or from time to time by the board of
directors.
If a chairman of the board be elected or appointed and designated as
the chief executive officer of the corporation, as provided in paragraph 28
of these bylaws, the president shall perform such duties as may be
specifically delegated to him by the board of directors and as are
conferred by law exclusively upon him, and in the absence, disability or
inability to act of the chairman of the board, the president shall perform
the duties and exercise the powers of the chairman of the board.
30.Vice Presidents. The vice presidents in the order of their
seniority, as determined by the board, shall, in the absence, disability or
inability to act of the president, perform the duties and exercise the
powers of the president, and shall perform such other duties as the board
of directors shall from time to time prescribe.
31.The Secretary and Assistant Secretaries. The secretary shall
attend all sessions of the board and, except as otherwise provided for in
paragraph 6(c) of these bylaws, all meetings of the shareholders, and shall
record or cause to be recorded all votes taken and the minutes of all
proceedings in a minute book of the corporation to be kept for that
purpose. He shall perform like duties for the executive and other standing
committees when requested by the board or any such committee to do so.
He shall see that all books, records, lists and information, or
duplicates, required to be maintained at the registered or some office of
the corporation in Missouri, or elsewhere, are so maintained.
He shall keep in safe custody the seal of the corporation, and when
duly authorized to do so shall affix the same to any instrument requiring
it, and when so affixed, he shall attest the same by his signature.
He shall perform such other duties and have such other authority as
may be prescribed elsewhere in these bylaws or from time to time by the
board of directors or the chief executive officer of the corporation, under
whose direct supervision he shall be.
He shall have the general duties, powers and responsibilities of a
secretary of a corporation.
Any assistant secretary, in the absence, disability or inability to
act of the secretary, may perform the duties and exercise the powers of the
secretary, and shall perform such other duties and have such other
authority as the board of directors may from time to time prescribe.
32.The Treasurer and Assistant Treasurers. The treasurer shall have
responsibility for the safekeeping of the funds and securities of the
corporation, shall keep or cause to be kept full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
keep, or cause to be kept, all other books of account and accounting
records of the corporation, He shall deposit or cause to be deposited all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the board of
directors or by any officer of the corporation to whom such authority has
been granted by the board of directors.
He shall disburse, or permit to be disbursed, the funds of the
corporation as may be ordered, or authorized generally, by the board, and
shall render to the chief executive officer of the corporation and the
directors whenever they may require it, an account of all his transactions
as treasurer and of those under his jurisdiction, and of the financial
condition of the corporation.
He shall perform such other duties and shall have such other
responsibility and authority as may be prescribed elsewhere in these bylaws
or from time to time by the board of directors.
He shall have the general duties, powers and responsibility of a
treasurer of a corporation, and shall, unless otherwise provided by the
board, be the chief financial and accounting officer of the corporation.
If required by the board, he shall give the corporation a bond in a
sum and with one or more sureties satisfactory to the board, for the
faithful performance of the duties of his office, and for the restoration
to the corporation, in the case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control which
belong to the corporation.
Any assistant treasurer, in the absence, disability or inability to
act of the treasurer, may perform the duties and exercise the powers of the
treasurer, and shall perform such other duties and have such other
authority as the board of directors may from time to time prescribe.
33.Duties of Officers may be Delegated. If any officer of the
corporation be absent or unable to act, or for any other reason that the
board may deem sufficient, the board may delegate, for the time being, some
or all of the functions, duties, powers and responsibilities of any officer
to any other officer, or to any other agent or employee of the corporation
or other responsible person, provided a majority of the whole board of
directors concurs therein.
Shares of Stock
34.Payment for Shares of Stock. The corporation shall not issue
shares of stock except for money paid, labor done or property actually
received; provided, however, that shares may be issued in consideration of
valid bona fide antecedent debts, No note or obligation given by any
shareholder, whether secured by deed of trust, mortgage or otherwise, shall
be considered as payment of any part of any share or shares.
35.Certificates for Shares of Stock. The certificates for shares of
stock of this Corporation shall be numbered, shall be in such form as may
be prescribed by the board of directors in conformity with law, and shall
be entered in the stock books of this Corporation as they are issued. Such
entries shall show the name and address of the person, firm, partnership,
corporation or association to whom each certificate is issued. Each
certificate shall have printed, typed or written thereon the name of the
person, firm, partnership, corporation or association to whom it is issued
and the number of shares represented thereby. It shall be signed by the
chairman of the board, president or a vice president and the secretary or
an assistant secretary of the treasurer or an assistant treasurer of this
Corporation, and sealed with the seal of this Corporation, which seal may
be facsimile, engraved or printed. If this Corporation has a transfer
agent or a transfer clerk who signs such certificates, the signatures of
any of the other officers above-mentioned may be facsimiles, engraved or
printed. In case any such officer who has signed or whose facsimile
signature has been placed upon any such certificate shall have ceased to be
such officer before such certificate is issued, such certificate may
nevertheless be issued by the corporation with the same effect as if such
officer were an officer at the date of its issue.
36.Transfers of Shares -- Transfer Agent -- Registrar. Transfers of
shares of stock shall be made on the stock record or transfer books of the
corporation only by the person named in the stock certificate, or by his
attorney lawfully constituted in writing, and upon surrender of the
certificate therefor. The stock record book and other transfer records
shall be in the possession of the secretary or of a transfer agent or
transfer clerk for the corporation. The corporation, by resolution of the
board, may from time to time appoint a transfer agent or transfer clerk,
and, if desired, a registrar, under such arrangements and upon such terms
and conditions as the board deems advisable, but until and unless the board
appoints some other person, firm or corporation as its transfer agent or
transfer clerk (and upon the revocation of any such appointment, thereafter
until a new appointment is similarly made) the secretary of the corporation
shall be the transfer agent or transfer clerk of the corporation without
the necessity of any formal action of the board, and the secretary, or any
person designated by him, shall perform all of the duties thereof.
37.Closing of Transfer Books. The board of directors shall have
power to close the stock transfer books of the corporation for a period not
exceeding fifty days preceding the date of any meeting of the shareholders,
or the date of payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of shares
shall go into effect; provided, however, that in lieu of closing the stock
transfer books as aforesaid, the board of directors may fix in advance a
date not exceeding fifty days preceding the date of any meeting of
shareholders, or the date for the payment of any dividend, or the date for
the allotment of rights, or the date when any change or conversion or
exchange of shares shall go into effect, as a record date for the
determination of the shareholders entitled to notice of, and to vote at,
any such meeting and any adjournment thereof, or entitled to receive
payment of any such dividend, or entitled to any such allotment of rights,
or entitled to exercise the rights in respect of any such change,
conversion or exchange of shares. In such case such shareholders and only
such shareholders as shall be shareholders of record on the date of closing
of the transfer books or on the record date so fixed shall be entitled to
notice of, and to vote at, such meeting, and any adjournment thereof, or to
receive payment of such dividend, or to receive such allotment of rights,
or to exercise such rights, as the case may be, notwithstanding any
transfer of any shares on the books of the corporation after such date of
closing of the transfer books, or such record date fixed as aforesaid.
38.Lost or Destroyed Certificates. In case of the loss or
destruction of any certificate for shares of stock of the corporation,
another may be issued in its place upon proof of such loss or destruction
and upon the given of a satisfactory bond of indemnity to the corporation
and the transfer agent and registrar of such stock, if any, in such sum as
the board of directors may provide; provided, however, that a new
certificate may be issued without requiring a bond when in the judgment of
the board it is proper so to do.
39.Regulations. The board of directors shall have power and
authority to make all such rules and regulations as it may deem expedient
concerning the issue, transfer, conversion and registration of certificates
for shares of stock of the corporation, not inconsistent with the laws of
Missouri, the articles of incorporation or these bylaws.
General
40.Fixing of Capital -- Transfers of Surplus. Except as may be
specifically otherwise provided in the articles of incorporation, the board
of directors is expressly empowered to exercise all authority conferred
upon it or the corporation by any law or statute, and in conformity
therewith, relative to
(i)the determination of what part of the consideration received
for shares of the corporation shall be stated capital.
(ii)increasing stated capital.
(iii)transferring surplus to stated capital.
(iv)the consideration to be received by the corporation for its
shares, and
(v)all similar to related matters; provided that any concurrent
action or consent by or of the corporation and its shareholders
required to be taken or given pursuant to law, shall be duly taken or
given in connection therewith.
41.Dividends. Dividends upon the outstanding shares of the
corporation, subject to the provisions of the articles of incorporation and
of any applicable law, may be declared by the board of directors at any
meeting. Dividends may be paid in cash, in property, or in shares of the
corporation's stock.
Liquidating dividends or dividends representing a distribution of
paid-in surplus or a return of capital shall be made only when and in the
manner permitted by law.
42.Creation of Reserves. Before the payment of any dividend, there
may be set aside out of any funds of the corporation available for
dividends such sum or sums as the board of directors from time to time deem
proper as a reserve fund or funds to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation,
or for any other purpose deemed by the board to be conducive to the
interests of the corporation, and the board may abolish any such reserve in
the manner in which it was created.
43.Loans to Shareholders Prohibited. The corporation shall not loan
money to any shareholder of the corporation.
44.Checks. All checks and similar instruments for the payment of
money shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate. If no
such designation is made, and unless and until the board otherwise
provides, the chairman of the board or president and secretary or the
chairman of the board or president and treasurer, shall have power to sign
all such instruments for, on behalf and in the name of the corporation
which are executed or made in the ordinary course of the corporation's
business.
45.Fiscal Year. The board of directors shall have power to fix and
from time to time change the fiscal year of the corporation. In the
absence of action by the board of directors, however, the fiscal year of
the corporation shall end each year on the date which the corporation
treated as the close of its first fiscal year, until such time, if any, as
the fiscal year shall be changed by the board of directors.
46.Directors' Annual Statement. The board of directors may present
at each annual meeting, and when called for by vote of the shareholders
shall present to any annual or special meeting of the shareholders, a full
and clear statement of the business and condition of the corporation.
47.Facsimile Signatures. In addition to the provisions for use of
facsimile signatures elsewhere specifically authorized in these bylaws,
facsimile signatures of any officer of the corporation may be used whenever
authorized in writing by said officer and approved by the Board of
Directors or a committee thereof.
48.Amendments. The bylaws of the corporation may from time to time
be suspended, repealed, amended or altered, or new bylaws may be adopted,
in the manner provided in the articles of incorporation.
EXHIBIT 3.6.
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION
OF
AMC PHILADELPHIA, INC.
FIRST: That in lieu of a special meeting of the Board of Directors of AMC
Philadelphia, Inc. resolution were duly adopted on October 6, 1995 setting
forth a proposed amendment of the Certificate of Incorporation of said
corporation, declaring said amendment to be advisable. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that ARTICLE VII of the Certificate of Incorporation be, and it
hereby is amended to read as follows:
"ARTICLE VII
The number of directors to constitute the Board of Directors is four (4)."
SECOND: That thereafter, pursuant to said resolution and in accordance
with the bylaws and the laws of the State of Delaware, all of the
stockholders of the corporation, pursuant to an action by consent in lieu
of a special meeting dated October 6, 1995, voted in favor of the proposed
amendments.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of Delaware.
FOURTH: That the capital of said corporation shall not be reduced under or
by mason of said amendment.
IN WITNESS WHEREOF, said AMC Philadelphia, Inc. has caused this certificate
to be signed by Nancy L. Gallagher, its Vice President and Secretary and
Tina M. Kirwan, its Assistant Secretary, this 30th day of November, A.D.
1995.
By: /s/Nancy L. Gallagher
Nancy L. Gallagher, Vice President and
Secretary
Attest: /s/ Tina M.Kirwan
Tim M. Kirwan, Assistant Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AMC PHILADELPHIA, INC.
Pursuant to the provisions of the General Corporation Law of Delaware,
the undersigned hereby certifies as follows:
1.AMC Philadelphia, Inc. is a corporation organized and existing under
the laws of the State of Delaware.
2.Effective as of December 4, 1986, the sole incorporator of the
corporation adopted the following amendments to the corporation's Certificate
of Incorporation:
(a)ARTICLE V of the Certificate of Incorporation of the
corporation is amended so that, as amended, such ARTICLE shall read in its
entirety as follows:
ARTICLE V
The stockholders of the corporation shall have the preemptive
right to subscribe to any or all additional shares of any class or
series of stock of the corporation.
(b)ARTICLE VII of the Certificate of Incorporation of the
corporation is amended so that, as amended, such ARTICLE shall read in its
entirety as follows:
ARTICLE VII
The number of directors to constitute the Board of Directors
is five (5).
(c)ARTICLE IX of the Certificate of Incorporation of the
corporation is amended so that, as amended, such ARTICLE shall read in its
entirety as follows:
ARTICLE IX
No director shall have any personal liability to the
corporation or its stockholders for monetary damages for breach of
a fiduciary duty as a director, provided, that this ARTICLE IX
shall not eliminate or limit the liability of a director (a) for
any breach of the director's duty of loyalty to the corporation or
its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law,
(c) under Section 174 of Title 8 of the Delaware Code, or (d) for
any transaction from which the director derived an improper
personal benefit.
(d)ARTICLE XI of the Certificate of Incorporation of the
corporation is amended so that, as amended, such ARTICLE shall read in its
entirety as follows:
ARTICLE XI
Any person, upon becoming the owner or holder of any shares of
stock or other securities issued by the corporation, does thereby
consent and agree that all rights, powers, privileges, obligations
or restrictions pertaining to such person or such shares of stock
or other securities in any way may be altered, amended, restricted,
enlarged or repealed by laws of the State of Delaware or of the
United States of America hereinafter adopted. The corporation
reserves the right to amend its Certificate of Incorporation;
provided, that any amendment to ARTICLE V of this Certificate of
Incorporation must receive the affirmative vote of the holders of
all of the corporation's outstanding shares entitled to vote and
any amendment to ARTICLE VII of this Certificate of Incorporator
must receive the affirmative vote of the holders of at least
ninety-five percent (95%) of the corporation's outstanding shares
entitled to vote.
3.AMC Philadelphia, Inc. has not received any payment for any of
its stock.
4.Such amendments to the Certificate of Incorporation of AMC
Philadelphia, Inc. have been adopted in accordance with Section 241 of the
General Corporation Law of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this instrument on the
24th day of December, 1986.
/s/ Joseph W. Medved
Joseph W. Medved, Incorporator
<PAGE>
STATE OF MISSOURI)
)
COUNTY OF JACKSON)
The foregoing instrument was acknowledged before me this 24th day of
December, 1986, by Joseph W. Medved, the sole incorporator of AMC
Philadelphia, Inc., as his act and deed on behalf of AMC Philadelphia, Inc.
and that the facts stated therein are true.
/s/ Bonnie J. Simmons
Notary Public in and for said county and state
My Commission Expires:
BONNIE J. SIMMONS
Notary Public - State of Missouri
Commissioned in Jackson County
My Commission Expires Oct. 2, 1987
<PAGE>
CERTIFICATE OF INCORPORATION
OF
AMC PHILADELPHIA, INC.
The undersigned incorporator, for the purpose of forming a corporation
under the General Corporation Law of Delaware, adopts the following
Certificate of Incorporation.
ARTICLE I
The name of the corporation is:
AMC Philadelphia, Inc.
ARTICLE II
The address of the corporation's registered office in Delaware is 1209
Orange Street, Wilmington, New Castle County, Delaware, and the name of its
resident agent at such address is The Corporation Trust Company.
ARTICLE III
The corporation is formed for the following purposes:
(a)To exhibit, play or otherwise display and reproduce, for all
purposes, still and motion pictures, sound films, plays and other dramatic
works, operas, concerts, music and musical works, news, instruction,
entertainment, advertising, educational and informative matter, or any of
them; to produce or procure the production of scenes, acts, plays, concerts,
exhibitions, theatrical performances and the like, and in connection
therewith, to manufacture, purchase or otherwise acquire sceneries, costumes
and other theatrical properties and accessories; to employ actors, singers,
musicians and other persons suitable in connection therewith; to acquire
scenarios, plays, stories, poems, songs, musical pieces and the like, and the
rights to use thereof; to purchase, lease or otherwise acquire, manage,
operate, control, hold, own, use, improve, develop, sell, lease or otherwise
dispose of, mortgage and otherwise encumber, theatres and other amusement
places of every kind and description and any and all interests or rights
therein; and to carry on a general moving picture, theatrical and amusement
business and every branch thereof; and
(b)To engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of Delaware.
ARTICLE IV
(a)The corporation shall have authority to issue 3,000 shares of common
stock, each with a par value of $1.00.
(b)Each stockholder shall be entitled to one vote for each share of the
corporation's outstanding common stock held of record by such stockholder on
every matter submitted to a vote of the corporation's stockholders, except
that each stockholder shall have the right to vote such shares of common stock
cumulatively in all elections for directors.
ARTICLE V
No holder of any share of the corporation's stock shall have any
preemptive rights to acquire additional shares.
ARTICLE VI
The name of the incorporator is Joseph W. Medved, and the mailing address
of the incorporator is 2345 Grand Avenue, P.O. Box 23428, Kansas City,
Missouri 64141.
ARTICLE VII
The number of directors to constitute the Board of Directors shall be
fixed by, or in the manner provided in, the corporation's bylaws.
ARTICLE VIII
The duration of the corporation is perpetual.
ARTICLE IX
Whenever a compromise or arrangement is proposed between this corporation
and its creditors or any class of them or between this corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
corporation or any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this corporation under the provisions
of SS 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation
under the provisions of SS 279 of Title 8 of the Delaware Code order a meeting
of the creditors or class of creditors, or of the stockholders or class of
stockholders of this corporation, as the case may be, to be summoned in such
manner as said court directs. If a majority in number representing three-
fourths in value of the creditors or class of creditors, or of the
stockholders or class of stockholders of this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, or on all the stockholders or class of
stockholders of this corporation, as the case may be, and also on this
corporation.
ARTICLE X
(a)All powers of management, direction and control of the corporation
shall be vested in the Board of Directors.
(b)The corporation's original bylaws shall be adopted by the
corporation's initial Board of Directors. The bylaws of the corporation may
from time to time be altered, amended or repealed, or new bylaws may be
adopted, in either of the following ways: (i) by an affirmative vote of the
holders of a majority of the corporation's outstanding shares entitled to
vote, or (ii) by an affirmative vote of a majority of the corporation's
directors then in office. Any change in the bylaws made by the corporation's
stockholders may thereafter be further changed by the corporation's Board of
Directors, unless the stockholders in making such change shall otherwise
provide.
ARTICLE XI
Any person, upon becoming the owner or holder of any shares of stock or
other securities issued by the corporation, does thereby consent and agree
that all rights, powers, privileges, obligations or restrictions pertaining
to such person or such shares of stock or other securities in any way may be
altered, amended, restricted, enlarged or repealed by laws of the State of
Delaware or of the United States of America hereinafter adopted. The
corporation reserves the right to amend or repeal these Articles of
Incorporation or to take any other action as required or allowed by such laws,
and all rights of the owners and holders of any shares of stock or other
securities issued by the corporation are subject to this reservation.
These Articles of Incorporation have been signed this 26th day of
November, 1986.
/s/ Joseph W. Medved
Joseph W. Medved, Incorporator
<PAGE>
STATE OF MISSOURI)
) SS
COUNTY OF JACKSON)
The foregoing instrument was acknowledged before me this 26th day of
November, 1986 by Joseph W. Medved.
/s/ Virginia R. Carpenter
Notary Public in and for said County and State
My commission expires:VIRGINIA R. CARPENTER
Notary Public - State of Missouri
August 3, 1990Commissioned in Jackson County
My Commission Expires Aug. 3, 1980
(print notary's name here)
EXHIBIT 3.13.
BYLAWS
OF
BUDCO THEATRES, INC.
These Bylaws are adopted by this Corporation and are
supplemental to the Pennsylvania Business Corporation
Law as the same shall from time to time be in effect.
ARTICLE 1
SHAREHOLDERS AND DIRECTORS
Section 101.1. Place of Shareholders' Meeting. All meetings of the
shareholders shall be held at such place or places, within or without the
State of Incorporation, as shall be fixed by the Board of Directors from
time to time.
Section 101.2. Annual Shareholders' Meeting. The annual meeting of
the shareholders, for the election of directors and the transaction of such
other business as may properly be brought before such meeting, shall be
held on the second Thursday in November of each year, provided, however,
that the Board of Directors may from time to time fix any other date within
each calendar year for said meeting.
Section 102.1. Number of Directors. The Board of Directors shall
consist of three (3) directors.
Section 102.2. Term of Directors. Each director shall serve until
his or her successor shall be elected.
Section 102.3. Resignations of Directors. Any director may resign at
any time. Such resignation shall be in writing, but the acceptance thereof
shall not be necessary to make it effective.
Section 102.4. Compensation of Directors. Unless the Board of
Directors shall otherwise determine, directors, other than the Chairman of
the Board, shall not be entitled to any compensation for their services as
directors. Any director may serve the Corporation in another capacity and
be entitled to such compensation therefor as may be determined by the Board
of Directors.
Section 102.5. Annual Meeting of Directors. An annual meeting of the
Board of Directors shall be held in each calendar year immediately
following the annual meeting of shareholders.
Section 102.6. Meeting of Directors. Meetings of the Board of
Directors may be called by the Chairman, the President or by at least two
of the directors. Any such meeting shall be held at the principal office
of the Corporation or at any other place, designated in the notice of the
meeting.
Section 102.7. Notice of Directors' Meetings. Whenever notice of a
meeting of the Board of Directors shall be required, it shall be in
writing. Unless otherwise required by law or these Bylaws, neither the
business to be transacted at, nor the purpose of, any regular meeting of
the Board of Directors need be specified in the notice or waiver of notice
of such meeting.
Section 103. Absentee Participation in Meetings. One or more
directors or shareholders may participate in a meeting of the Board of
Directors, or of a committee of the Board, or a meeting of the
shareholders, by means of a conference telephone or similar communications
equipment, by means of which all persons participating in the meeting can
hear each other.
Section 104. Designation of Presiding and Recording Officers. The
directors or shareholders, at any meeting of directors or shareholders, as
the case may be, shall have the right to designate any person, whether or
not an officer, director or shareholder, to preside over, or record the
proceedings of, such meeting.
ARTICLE II
OFFICERS
Section 201. The Officers. The Corporation shall have a President, a
Secretary, a Treasurer, and a Chairman of the Board, and may have one or
more Vice-Presidents, one or more Assistant-Secretaries, and one or more
Assistant-Treasurers.
Section 202. Election and Term of Officers. The Chairman, President,
Secretary, and Treasurer of the Corporation shall be elected annually by
the Board of Directors at the first meeting of the Board of Directors held
after each annual meeting of the shareholders, All other officers shall be
elected by the Board of Directors at the time, in the manner, and for such
term as the Board from time to time shall determine. Each officer shall
hold office until his successor shall have been duly elected and shall have
qualified, or until he shall resign or shall have been removed.
Section 203. Compensation. The compensation of officers and
assistant officers of the Corporation shall be fixed by the Board of
Directors, unless otherwise provided by applicable contracts.
Section 204. Chairman. The Chairman shall be the chief executive
officer of the Corporation, and, subject to the control of the Board of
Directors and such limitations as may be provided by the Board of
Directors, shall in general supervise and control all of the business and
affairs of the Corporation. Unless a designation to the contrary shall be
made at a meeting, the Chairman shall, when present, preside at all
meetings of the shareholders and of the Board of Directors.
Section 205. President. The President, in the absence or disability
of the Chairman, shall be the Chief Executive Officer of the Corporation,
and shall perform all duties as may be prescribed by the Board of
Directors. As authorized by the Board of Directors, he shall execute and
seal, or cause to be sealed, all instruments requiring such execution,
except to the extent that signing and execution thereof shall have been
expressly delegated by the Board of Directors to some other officer or
agent of the Corporation. Upon request of the Board of Directors, he shall
report to the Board all matters which the interest of the Corporation may
require to be brought to their notice.
Section 206. Vice-President, Secretary, Treasurer and Assistant
Officers. The Vice President or Vice Presidents, in order of their
seniority, unless otherwise determined by the Board of Directors and in the
absence or disability of the President, shall perform the duties and
exercise the powers of the President.
The Vice President or Vice Presidents, the Secretary, the Treasurer,
the Assistant Secretary or Secretaries, and the Assistant Treasurer or
Treasurers, if any, shall act under the direction of the President, and
shall perform all such duties as may be prescribed by the President or the
Board of Directors.
ARTICLE III
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHER PERSONS
Section 301. Indemnification. The Corporation shall indemnify any
person who is or was or shall be a director, officer, employee or agent of
the Corporation, or who is, was, or shall be serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, and the
respective heirs, executors, administrators and assigns of each of the
foregoing, against all reasonable expenses and liabilities (including,
without limitation, attorneys' fees, court costs, fines, and amounts paid
in satisfaction of judgments or in reasonable settlement, but other than
amounts paid to the Corporation by him), actually and reasonably incurred
by, or imposed upon him in connection with, or resulting from the defense
of any civil or criminal action, suit or proceeding (or any appeal therein)
in which they, or any of them, are made parties or a party or are otherwise
involved by reason of being or having been a director or officer of the
corporation or of such other corporation, whether or not he is or continues
to be a director or officer at the time such expenses or liabilities are
paid or incurred. Notwithstanding the foregoing, the Corporation need not
indemnify such director or officer with respect to any matter as to which
he shall be finally adjudged in such action, suit or proceeding to have
been liable for wilful misconduct (or such gross negligence as shall amount
to wilful misconduct) in the performance of his duties as such director or
officer. In the case of a criminal action, suit or proceeding, a
conviction (whether based on a plea of guilty or nolo contendere or its
equivalent, or after trial) shall not of itself be deemed an adjudication
that such director or officer or former director or officer is liable for
wilful misconduct (or such gross negligence as shall amount to wilful
misconduct) in the performance of his duties as such director or officer.
With respect to payment of amounts in settlement or compromise, the
Corporation shall be obliged to indemnify hereunder only if the Board of
Directors shall adopt a resolution determining that such settlement or
compromise is reasonable, and approving the same. Indemnification
hereunder shall be in addition to and not exclusive of any other rights to
which those so indemnified may be entitled as a matter of law, or under any
agreement, vote of shareholders, any other bylaw, or otherwise.
ARTICLE IV
FINANCIAL REPORTS TO SHAREHOLDERS
Section 401. Annual Report Required. The directors of this
Corporation shall be required to send or cause to be sent to the
shareholders of this Corporation an annual financial report.
ARTICLE V
SHARES OF CAPITAL STOCK
Section 501. Signatures of Share Certificates. Each share
certificate shall be signed by the Chairman of the Board, President or a
Vice President, and by the Secretary or Treasurer, or an Assistant
Secretary or an Assistant Treasurer.
Section 502. Lost or Destroyed Certificates. Any person claiming a
share certificate to be lost, destroyed or wrongfully taken shall receive a
replacement certificate if said shareholder shall have: (a) requested such
replacement certificate before the Corporation has notice that the shares
have been acquired by a bona fide purchaser; (b) filed with the Corporation
an indemnity bond deemed sufficient by the Board of Directors; and (c)
satisfied any other reasonable requirements fixed by the Board of
Directors.
Section 503. Transfer of Shares. Subject to the terms of any
Shareholders' Agreements, all transfers of shares of the Corporation shall
be made upon the books of the Corporation upon surrender to the Corporation
or the transfer agent of the Corporation of a certificate or certificates
for shares, duly endorsed by the person named in the certificate or by
attorney, lawfully constituted in writing, or accompanied by proper
evidence of succession, assignment or authority to transfer. Thereupon, it
shall be the duty of the Corporation to issue a new certificate to the
person entitled thereto, cancel the old certificates and record the
transaction upon its books.
ARTICLE VI
AMENDMENTS
Section 601. Amendment by Shareholders or Board of Directors. These
Bylaws may be amended or repealed by a majority vote of the members of the
Board of Directors, or by vote of shareholders entitled to cast at least a
majority of the votes which all shareholders are entitled to cast thereon,
as the case may be, at any regular or special meeting duly convened after
notice to the shareholders or directors of that purpose.
Section 602. Recording Amendments. The text of all amendments to
these Bylaws shall be attached to the Bylaws with a notation of the date of
each such amendment and a notation of whether such amendment was adopted by
the shareholders or the Board of Directors.
ARTICLE VII
OFFICES
Section 701. Registered Office. The registered office of the
Corporation shall be at 623 Shady Retreat Road, Doylestown, Bucks County,
Pennsylvania 19355.
Section 702. Additional Offices. The Corporation may also have
offices at such other places as the Board of Directors may from time to
time appoint as the business of the Corporation may require.
ARTICLE VIII
ADOPTION OF BYLAWS AND RECORD OF AMENDMENTS THERETO
Section 801. Adoption and Effective Date. These Bylaws have been
adopted as the Bylaws of the Corporation this 24 day of May, 1984, and
shall be effective as of this date.
Section 802. Amendments to Bylaws.
Section Amended Date Amended Adopted By
/s/ Donald Bush
/s/ John J.
/s/ Jerome H. Schlanger
EXHIBIT 10.1.
Set forth below is the text of the AMC Entertainment Inc. 1994 Stock
Option and Incentive Plan, as amended to date ( the "Incentive Plan"),
together with the Proposed Amendments being submitted to stockholders for
their approval at the Annual Meeting. Proposed deletions from the Incentive
Plan are marked through, and proposed additions are underlined.
AMC ENTERTAINMENT INC.
1994 STOCK OPTION AND INCENTIVE PLAN, as amended
1. PURPOSE
The AMC Entertainment Inc. 1994 Stock Option and Incentive Plan is
intended to incorporate stock-based and results-oriented awards into the
ongoing compensation packages of executives and managers and to thereby
increase the alignment of the interests of such persons and stockholders.
The Plan is intended to foster in participants a strong incentive to exert
maximum effort for the continued success and growth of the Company and its
Subsidiaries and the enhancement of stockholders' interests, to aid in
retaining individuals who exert such efforts and to assist in attracting
the best available individuals in the future.
2. DEFINITIONS
When used herein, the following terms shall have the meaning set forth
below:
2.1 "AMC" means American Multi-Cinema, Inc., a wholly-owned subsidiary
of the Company.
2.2 "Award" means an Option, a Stock Award or a Performance Unit.
2.3 "Board" means the Board of Directors of the Company.
2.4 A "Change of Control Event" shall be deemed to have occurred at the
first time that (a) 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 (b) a person
or entity or group of persons or entities acting in concert as a
partnership or other group (other than the DI affiliates, any Subsidiary,
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 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.
2.5 "Code" means the Internal Revenue Code of 1986 as amended from time
to time.
2.6 "Committee" means the Board's Compensation Committee, or such other
committee of Directors as may be designated by the Board, authorized to
administer this Plan. The Committee shall consist of not fewer than two
(2) Directors and shall be constituted so as to permit the Plan to comply
with Rule 16b-3 or any successor provision of similar import.
2.7 "Common Stock" means the Company's Common Stock, par value 66 2 3
cents per share.
2.8 "Company" means AMC Entertainment Inc., a corporation organized and
existing under the laws of the State of Delaware, or such Company by
whatever name it may at the time have.
2.9 "DI Affiliates" means (a) Mr. Stanley H. Durwood, his spouse and any
of his lineal descendants and their respective spouses (collectively the
Durwood Family), (b) any controlled affiliate of any member of the Durwood
Family and (c) any trust 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) or one or more charitable organizations.
2.10 "Director" means a member of the Board.
2.11 "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
2.12 "Fair Market Value" means with respect to the Company's Shares the
closing sales price of the Shares, as reported on the American Stock
Exchange, or, if not so reported, on the NASDAQ/National Market System, or,
if not so reported, the closing sales price as reported by any other
appropriate reporting system of general circulation, on the date for which
the value is to be determined, or if there is no closing sales price on
such date, then on the last day for which transactions in Shares were so
reported prior to the date on which the value is to be determined.
2.13 "Grantee" means a person to whom an Award is made.
2.14 "Incentive Stock Option" or "ISO" means an Option awarded under the
Plan which meets the terms and conditions established by Code Section 422
and applicable regulations thereunder for such an Option.
2.15 "Non-Qualified Stock Option" or "NQSO" means an Option awarded under
the Plan which by its terms and conditions is not an ISO.
2.16 "Option" means the right to purchase, at a price, for a term, under
conditions, and for cash or other considerations (which may include a note
from the Grantee) fixed by the Committee in accordance with such
restrictions as the Plan and the Committee impose, a number of Shares
specified by the Committee (subject to limitations imposed by this Plan).
An Option can be either an ISO or NQSO or a combination thereof.
2.17 "Plan" means the Company's 1994 Stock Option and Incentive Plan.
2.18 "Performance Unit" means an Award payable only in cash and valued
by reference to designated criteria (other than Shares) established by the
Committee.
2.19 "Rule 16b-3" means Rule 16b-3 promulgated under the Exchange Act,
as amended from time to time.
2.20 "Securities Act" means the Securities Act of 1933, as amended from
time to time.
2.21 "Shares" means shares of the Company's Common Stock or if by reason
of the adjustment provisions hereof any rights under an Award under the
Plan pertain to any other security, such other security.
2.22 "Stock Award" means the grant of a right to receive, at a time or
times fixed by the Committee in accordance with the Plan and subject to
such other limitations and restrictions as the Plan and the Committee
impose, the number of Shares specified by the Committee. A Stock Award may
be either a "Performance Stock Award", under which the receipt of Shares,
subject to provisions of the Plan permitting acceleration, will be
conditioned on the attainment by the Company or a Subsidiary or a division
during a performance period of performance goals established by the
Committee, or a "Restricted Stock Award", under which the receipt of
Shares, subject to provisions of the Plan permitting acceleration, is
conditioned on the continued employment of the Grantee or such other
conditions as the Committee may impose, or both.
2.23 "Subsidiary" means any business, including AMC, whether or not
incorporated, in which the Company, at the time an Award is granted or in
other cases at the time of reference, owns directly or indirectly not less
than 50% of the equity interest.
2.24 "Successor" means the legal representative of the estate of a
deceased Grantee or the person or persons who shall acquire the right to
exercise an Option, to receive Shares issuable in satisfaction of a Stock
Award or to receive other amounts payable under an Award, by bequest or
inheritance or by reason of the death of the Grantee or pursuant to a
qualified domestic relations order as defined by the Code or Title I of the
Employment Retirement Income Security Act, or the rules thereunder, and
other transferees approved in advance by the Committee.
2.25 "Tax Date" means the date on which the amount of tax to be withheld
with respect to an Option or Stock Award is determined.
2.26 "Term" means the period during which a particular Option may be
exercised or the period during which the conditions and/or restrictions
placed on an Award are in effect.
2.27 "Window Period" means a period beginning on the third business day
following the date of release of a quarterly or annual summary statement
of sales and earnings of the Company and ending on the twelfth business day
following such date.
3. ADMINISTRATION OF THE PLAN
3.1 The Plan shall be administered by the Committee.
3.2 The Committee shall have plenary authority, subject to provisions
of the Plan, to: (a) determine when and to whom Awards shall be granted;
(b) determine the form of each Award, its Term, the amount of the Award or
the number of Shares covered by it, if any, the participation by a Grantee
in other plans, and any other terms or conditions of each such Award,
including the time and conditions of exercise or vesting; (c) determine
whether Awards will be granted singly or in combination or tandem;
(d) determine the performance goals, if any, that will be applicable to the
Award and eliminate or reduce an Award otherwise payable that is based on
performance goals; (e) accelerate the vesting, exercise, or payment of an
Award when such action(s) would be in the best interests of the Company;
and (f) take any and all other action it deems necessary or advisable for
the proper operation or administration of the Plan. The Committee also
shall have the authority to grant Awards in replacement of Awards
previously granted under the Plan or any other plan of the Company or a
Subsidiary. The Committee's actions in making Awards and fixing their size,
Term, and other terms and conditions shall be final and conclusive on all
persons.
3.3 The Committee shall have the sole responsibility for construing and
interpreting the Plan, for establishing (and amending) such rules and
regulations as it deems necessary or desirable for the proper
administration of the Plan, and for resolving all questions arising under
the Plan. Any decision or action taken by the Committee arising out of or
in connection with the construction, administration, interpretation and
effect of the Plan and of its rules and regulations shall, to the extent
permitted by law, be within its absolute discretion, except as otherwise
specifically provided herein, and shall be conclusive and binding upon all
Grantees, all Successors, and any other person, whether that person is
claiming under or through any Grantee or otherwise.
3.4 The Committee may designate one of its members as Chairman. It shall
hold its meetings at such times and places as it may determine. All
determinations of the Committee shall be made by a majority of its members.
Any determination reduced to writing and signed by all members shall be
fully as effective as if it had been made by a majority vote at a meeting
duly called and held. The Committee may make such rules and regulations for
the conduct of its business as it shall deem advisable.
3.5 The Committee, in its discretion, may delegate its authority and
duties under the Plan to the Chief Executive Officer and/or to other senior
officers of the Company under such conditions and/or limitations as the
Committee may establish; provided, however, that only the Committee may
establish performance goals and select and grant Awards to Grantees who are
subject to Section 16 of the Exchange Act.
3.6 Service on the Committee shall constitute service as a Director, so
that the members of the Committee shall be entitled to indemnification and
reimbursement as Directors pursuant to its Bylaws and to any agreements
between the Company and its Directors providing for indemnification.
3.7 The Committee shall regularly inform the Board as to its actions with
respect to all Awards under the Plan and the terms and conditions of such
Awards in a manner, at such times, and in such form as the Board may
reasonably request.
4. ELIGIBILITY
Awards may be made under the Plan to employees who are corporate or
field executives or senior managers, including executive officers of the
Company and its Subsidiaries, and other managers, including field and
theatre managers. Officers shall be employees for this purpose, whether or
not they also are Directors. A Director who is not an employee shall not
be eligible to receive an Award. Awards may be made to eligible employees
whether or not they have received prior Awards under the Plan or under any
previously adopted plan, and whether or not they are participants in other
benefit plans of the Company, AMC or any other Subsidiary.
5. SHARES SUBJECT TO PLAN; LIMITATIONS
5.1 The Company hereby reserves 1,000,000 Shares, for issuance in
connection with Awards under the Plan, subject to adjustment under Section
20. During the Plan no Grantee may receive Options to acquire more than
325,000 Shares, Stock Awards entitling the Grantee to receive more than
150,000 Shares or cash awards aggregating more than $2$2.5 million under
Performance Units. During any 12 month period no Grantee may receive
Options to acquire more than 65,000 Shares or Performance Units for cash
awards aggregating more than $400,000 under Performance Shares $800,000.
No Grantee may receive a Stock Award or Awards entitling the Grantee to
receive free of conditions more than 30,000 Shares with respect to any 12
month period, but determined on an annualized basis so that more than
30,000 Shares may be received at one time free of conditions with respect
to a performance period exceeding 12 months in duration.
5.2 Any Shares related to Awards which (a) terminate by expiration,
forfeiture, cancellation or otherwise without the issuance of such Shares,
or (b) are settled in cash in lieu of Shares, shall be available again for
grant under the Plan, provided the Participant received no other benefits
of ownership of such Award other than voting rights, if any.
Notwithstanding the foregoing, no Shares which are used by a Participant
for the full or partial payment to the Company of the purchase price of
Shares upon exercise of an Option, or for any withholding taxes due as a
result of such exercise, may become available for Awards under the Plan.
The Shares available for issuance under the Plan may be authorized and
unissued shares or treasury shares.
6. GRANTING OF OPTIONS
6.1 Subject to the terms of the Plan, the Committee may from time to time
grant Options to persons eligible under Section 4 above and shall designate
such Options as ISOs or NQSOs.
6.2 Pursuant to Code Section 422 and applicable regulations, an Option
shall not be deemed to be an ISO to the extent that the aggregate Fair
Market Value, as determined on the date or dates of grant, of Shares with
respect to which such ISO is exercisable for the first time by any
individual during any calendar year (under all stock option incentive plans
of the Company or a Subsidiary) exceeds $100,000. ISOs which first become
exercisable during a calendar year shall be taken into account in the order
granted. Options that exceed the $100,000 limit shall be treated as NQSOs.
6.3 The purchase price of each Share subject to Option shall be fixed by
the Committee, provided the purchase price for Shares subject to an Option
shall not be less than 100% of the Fair Market Value of the Shares on the
date the Option is granted.
6.4 Notwithstanding Section 6.3 above, pursuant to Code Section 422 and
applicable regulations, the minimum purchase price of an ISO shall be 110%
of the Fair Market Value of the Shares on the date the ISO is granted with
respect to Grantees who at the time of Award are deemed to own 10% or more
of the voting power of the Company's outstanding Shares.
6.5 Each Option shall expire and all rights to purchase Shares thereunder
shall cease on the date fixed by the Committee.
6.6 Notwithstanding Section 6.5 above, pursuant to Code Section 422 and
applicable regulations, an ISO shall expire and all rights to purchase
Shares thereunder shall cease no later than the fifth anniversary of the
date on which the ISO was granted with respect to Grantees who at the time
of Award are deemed to own 10% or more of the voting power of the Company,
and no later than the tenth anniversary of the date on which the ISO was
granted with respect to other Grantees.
6.7 No Option shall become exercisable prior to the expiration of six
months after the date of its grant, unless otherwise determined by the
Committee or permitted by the Plan, and, subject to the limitations in the
Plan, each Option shall be exercisable for the number of Shares fixed by
the Committee.
7. STOCK AWARDS
7.1 The Committee may grant eligible employees Stock Awards which shall
entitle Grantees to receive Shares in the future for no cash consideration
and which may be subject to such terms, conditions and restrictions, if
any, as the Committee may deem appropriate, including, without limitation,
satisfaction of performance goals, restrictions on transferability and
continued employment.
7.2 Subject to provisions of the Plan permitting acceleration, the
receipt of Shares under Stock Awards granted to persons subject to
Section 16 of the Exchange Act will be conditioned on the attainment during
a performance period of performance goals established by the Committee
based on criterion described in Section 9.
7.3 At the time of grant of a Stock Award, the Grantee shall receive
written evidence of the Award in such form as may be approved by the
Committee but shall not be entitled to issuance or delivery of a stock
certificate evidencing the Shares covered by the Award until the Committee
certifies that performance goals have been met and the lapse of any
restrictions that may have been imposed pursuant to the Award. Upon the
attainment of such goals and the lapse of any restrictions, a certificate
or certificates representing the number of Shares covered by the Award,
free and clear of all restrictions, shall be issued and registered in the
name of, and delivered to, the Grantee.
7.4 Unless otherwise determined by the Committee or provided in the Plan,
no Shares may be issued under Restricted Stock Awards unless the Grantee
remains employed by the Company or a Subsidiary for one year after the date
of the Award.
8. PERFORMANCE UNITS
8.1 The Committee may grant Awards in the form of Performance Units.
8.2 Amounts payable under a Performance Unit may be payable at a
specified date or dates or upon attaining performance conditions. Subject
to provisions of the Plan permitting acceleration, a Performance Unit
granted to persons subject to Section 16 of the Exchange Act will be
conditioned on the attainment during a performance period of performance
goals established by the Committee based on criteria described in Section
9.
9. PERFORMANCE GOALS
Performance Stock and Performance Unit Awards made to persons subject
to Section 16 of the Exchange Act shall be based on performance goals
established by the Committee not later than 90 days after the start of a
performance period of 12 months duration or longer with respect to which
such an Award is made. The Committee may not increase the compensation
payable under an Award that is otherwise due upon attainment of a
performance goal. The Committee shall certify that the performance goals
have been achieved before payment of any such Award. Performance goals
established by the Committee shall be based upon, as the Committee deems
appropriate, one or more of the following business criteria: (i) Company
or Subsidiary EBITDA (earnings before interest, taxes, depreciation and
amortization); (ii) Company or Subsidiary earnings or earnings per Share;
(iii) public market prices of Shares; (iv) division operating income, or
"DOI" (operating income less general and administrative expenses and
extraordinary expenses); (v) division level EBITDA (DOI less national film,
home office and international general and administrative expenses plus
capitalized lease adjustments; (vi) private market value of Shares on a
fully-diluted basis (assuming full exercise of all outstanding shares of
preferred stock, Class B stock, options and other rights to acquire
Shares), based on a constant multiple of theatre level EBITDA (Company
EBITDA less National Cinema Network, Inc. EBITDA), plus the book value of
National Cinema Network, Inc., cash, cash equivalents and investments and
investments in other long-term assets, less corporate borrowings,
capitalized lease obligations and the carrying value of minority interests
in other long-term liabilities; (vii) return to stockholders, measured by
increases in the market value of an investment in Shares, assuming
reinvestment of dividends received; and (viii) return on assets within a
participant's span of responsibility; and the Committee may, in its
discretion, determine whether an Award will be paid under any one or more
of such business criteria. In setting performance goals, such criteria may
be measured against one or more of the following: (i) the prior year or
years' performance of the Company, a Subsidiary, or a division or other
operations-based unit or span of a participant's responsibility; (ii) the
performance of a broad-based group of stock such as, but not limited to,
the Standard and Poor's 500 Index; and (iii) the performance of a peer
group of two or more companies. Such performance goals may be (but need not
be) different for each performance period. The Committee may set different
(or the same) goals for different Grantees and for different Awards, and
performance goals may include standards for minimum attainment, target
attainment, and maximum attainment. In all cases, however, performance
goals shall include a minimum performance standard below which no part of
the relevant Award will be earned.
10. NON-TRANSFERABILITY OF RIGHTS
No Except for assignments made with the Committee's prior approval, no
Award, no rights under any Award, and no payment under the Plan shall be
assignable or transferable otherwise than by will or the laws of descent
and distribution or pursuant to a qualified domestic relations order as
defined by the Code or Title I of the Employment Retirement Income Security
Act, or the rules thereunder, and the rights and the benefits of any such
Award may be exercised during the lifetime of the Grantee only by his or
her guardian or legal representative or Successor.
11. DEATH, DISABILITY, RETIREMENT AND OTHER TERMINATION OF EMPLOYMENT
11.1 Subject to the terms of the Plan, the Committee may make such
provisions concerning exercise or lapse of Awards upon the Grantee's death,
disability, retirement, or other termination of employment as it shall in
its discretion determine, provided that:
(a) except as provided in paragraph (b) below, no provision shall
permit an ISO to be exercised after the date three months following the
Grantee's termination of employment,
(b) no provision shall permit an Option to be exercised after the
date which is twelve months following a Grantee's death or disability,
(c) no provision shall permit a NQSO to be exercised after the date
which is three years following the Grantee's retirement from the Company
or a Subsidiary,
(d) except as provided in paragraphs (b) and (c) above, no provision
shall permit a NQSO to be exercised after the date which is six months
following a Grantee's termination of employment,
(e) except as provided in paragraph (f) below or as permitted by
Sections 12 or 20, all Stock Awards and Performance Units shall be canceled
and forfeited if a Grantee's employment is terminated, and
(f) in the event of Grantee's death, disability or retirement, the
Grantee (or his Successor) shall be entitled immediately to be issued a
certificate or certificates for all of the Shares represented by his Stock
Award(s) and to be paid amounts due under Performance Unit awards, free and
clear of all performance goal requirements and restrictions, based in each
case on the extent to which performance goals have been achieved, measured
through the date of termination.
For purposes of this Section 11, the term "disability" shall mean
"long term disability", as defined in the AMC Long Term Disability Plan,
or any comparable plan of the Company or AMC, or, if there is no such plan,
the inability of the Grantee to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which
can be expected to result in death or to last for a continuous period of
not less than twelve months as determined by the Committee based on the
opinion of a qualified physician (or other medical certificate) and other
evidence acceptable to the Committee, and the term "retirement" shall mean
"normal retirement" or, with the approval of the Committee, "early
retirement" pursuant to the applicable terms of the AMC Defined Benefit
Retirement Plan or any comparable plan of the Company or a Subsidiary
covering a Grantee.
11.2 Unless the Committee determines otherwise, Options which pursuant
to their terms are exercisable following termination of a Grantee's
employment:
(a) may be exercised only to the extent exercisable upon the date
such employment terminates, if such termination is other than by reason of
the Grantee's death, disability or retirement, and
(b) shall be accelerated if not yet vested and shall be exercisable
in full, free and clear of all restrictions, if such termination is by
reason of the Grantee's death, disability or retirement.
11.3 Transfers of employment between the Company and a Subsidiary, or
between Subsidiaries, shall not constitute termination of employment for
purposes of any Award. The Committee may specify in the terms and
conditions of an Award whether any authorized leave of absence or absence
for military or governmental service or for any other reason shall
constitute a termination of employment for purposes of the Award and the
Plan.
12. PROVISIONS RELATING TO CHANGE IN CONTROL
The Committee may provide, at the time of an Award or thereafter, that
if a Change of Control Event occurs or if termination results from such
Change of Control Event, (a) any restrictions on Stock Awards shall lapse
immediately and (b) outstanding Options shall become exercisable
immediately. The Committee may also waive, at the time of an Award or
thereafter, the satisfaction of performance goals with respect to
Performance Stock Awards and Performance Units upon the occurrence of a
Change in Control Event or upon termination resulting from a Change in
Control Event, and authorize the issuance of Shares represented by Stock
Awards or the payment of amounts under Performance Unit Awards, based in
each case on the extent to which performance goals have been achieved,
measured through the date a Change in Control Event or termination
resulting therefrom occurs.
13. WRITING EVIDENCING AWARDS
Each Award granted under the Plan shall be evidenced by a writing which
may, but need not, be in the form of an agreement to be signed by the
Grantee. The writing shall set forth the nature and size of the Award, its
Term, the other terms and conditions thereof, other than those set forth
in the Plan, and such other information as the Committee directs.
Acceptance of, or receipt of the benefits of, an Award by the Grantee shall
be conclusively presumed to be assent to the terms and conditions set forth
therein, whether or not the writing is in the form of an agreement to be
signed by the Grantee.
14. EXERCISE OF RIGHTS UNDER AWARDS
14.1 A person entitled to exercise an Option may do so by delivery of
a written notice to that effect specifying the number of Shares with
respect to which the Option is being exercised and any other information
the Committee may prescribe.
14.2 The notice of exercise shall be accompanied by payment in full
of the purchase price for any Shares to be purchased, with such payment
being made in cash, certified or bank cashier's check or money order or in
Shares having a Fair Market Value equivalent to the purchase price of such
Shares to be purchased, or a combination thereof. If approved by the
Committee, payment of the purchase price of an Option may also be made by
Note, provided that unless the Shares issued are treasury shares at least
the par value of the Shares issued shall be paid in cash or equivalent or
Shares as provided above. The Committee shall establish appropriate methods
for accepting Shares and may impose such conditions as it deems appropriate
on the use of such Shares to exercise an Option.
14.3 Upon exercise of an Option, or after grant of a Stock Award but
before a distribution of Shares in satisfaction thereof, the Grantee may
request in writing that the Shares to be issued in satisfaction of the
Award be issued in the name of the Grantee and another person as joint
tenants with right of survivorship or as tenants in common.
14.4 All notices or requests to the Company provided for herein shall
be delivered to the Secretary of the Company.
15. EFFECTIVE DATE AND DURATION OF THE PLAN AND DATE OF AWARD
15.1 The Plan shall become effective on November 10, 1994, provided
any Awards granted hereunder shall be subject to approval of any
governmental body having jurisdiction over the Company with respect to this
Plan within the time limits applicable to any such governmental approvals.
15.2 The Plan shall remain in effect until all Awards have been
exercised or satisfied in accordance herewith, but no Awards may be granted
under the Plan after the date of the first stockholders' meeting held in
1999 or December 31, 1999, whichever first occurs. The terms of any Award
may be amended at any time prior to the end of its Term in accordance with
and subject to the limitations of the Plan.
15.3 The date of an Award shall be the date on which the Committee's
determination to grant the same is final, or such later date as shall be
specified by the Committee in connection with its determination.
16. AMENDMENTS TO AWARDS
The Committee may at any time unilaterally amend or terminate and cash
out any unexercised or unpaid Award, whether earned or unearned, including,
but not by way of limitation, Awards earned but not yet paid, and/or
substitute another Award of the same or different type, to the extent it
deems appropriate; provided, however, that any amendment to (but not
termination of) an outstanding Award which, in the opinion of the
Committee, is materially adverse to the Grantee, or any amendment or
termination which, in the opinion of the Committee, may subject the Grantee
to liability under Section 16 of the Exchange Act, shall require the
Grantee's consent. It shall be conclusively presumed that any adjustment
for changes in capitalization as provided for herein are not adverse to a
Grantee.
17. STOCKHOLDER STATUS
No person shall have any rights as a stockholder by virtue of the grant
of an Award under the Plan, except with respect to Shares actually issued
to that person.
18. POSTPONEMENT OR NON-EXERCISE
The Company shall not be required to issue any certificate or
certificates for Shares upon the exercise of an Option or upon the vesting
of a Stock Award granted under the Plan prior to (a) the obtaining of any
approval from any governmental agency which the Company shall, in its sole
discretion, determine to be necessary or advisable, (b) the taking of any
action in order to comply with restrictions or regulations incident to the
maintenance of a public market for its Shares, and (c) the completion of
any registration or other qualification of such Shares under any state or
Federal law or rulings or regulations of any governmental body which the
Company shall, in its sole discretion, determine to be necessary or
advisable. The Company shall not be obligated by virtue of any terms and
conditions of any Award or any provisions of the Plan to recognize the
exercise of an Option or to sell or issue shares in violation of the
Securities Act or the law of any government having jurisdiction thereof.
Any postponement or delay by the Company in recognizing the exercise of any
Option or in issuing any Shares under a Stock Award or otherwise hereunder
shall not extend the Term of an Option nor shorten the Term of any
restriction attached to any Stock Award and neither the Company nor its
directors or officers shall have any obligation or liability to the Grantee
of an Award, to a Successor or to any other person with respect to any
Shares as to which the Option shall lapse because of such postponement or
as to which issuance under a Stock Award was delayed.
19. TERMINATION, SUSPENSION OR MODIFICATION OF PLAN
The Board may terminate, suspend or modify the Plan at any time and in
any manner, provided, however, that without stockholder approval the Board
will not adopt an amendment that requires stockholder approval under
Rule 16b-3 Section 162(m) of the Code.
No termination or suspension of the Plan shall adversely affect any
right acquired by any Grantee or any Successor under an Award granted
before the date of such termination or suspension except to the extent
permitted in Section 16 of the Exchange Act.
20. ADJUSTMENTS FOR CORPORATE CHANGES
20.1 In the event of a recapitalization, stock split, stock dividend,
combination or exchange of shares, merger, consolidation, rights offering,
reorganization or liquidation, or any other change in the corporate
structure or shares of the Company, the Committee may (a) make such
equitable adjustments, designed to protect against dilution or enlargement,
as it may deem appropriate in the number and kind of Shares authorized by
the Plan and, with respect to outstanding Awards, in performance goals and
in the number and kind of Shares covered thereby by Awards and in the
Option price, and (b) make such arrangements, which shall be binding upon
the holders of unexpired Options and outstanding Stock Awards, for the
substitution of new Options or Stock Awards for any unexpired Options or
Stock Awards then outstanding under the Plan or for the assumption of any
such unexpired Options and outstanding Stock Awards.
20.2 In the event that the Company agrees (a) to sell or otherwise
dispose of all or substantially all of the Company's assets, or (b) to be
wholly or partially liquidated, or (c) to participate in a merger,
consolidation or reorganization, or (d) to sell or otherwise dispose of
substantially all the assets of, or a majority interest in, a Subsidiary
or division, then the Committee may determine that any and all Options
granted under the Plan, in situations involving an event described in
clauses (a) through (c), and any and all Options granted to employees of
the affected Subsidiary or division, in situations described in clause (d),
shall be immediately exercisable in full, and any and all Shares issuable
pursuant to Stock Awards or cash payable under Performance Units made under
the Plan, in situations involving an event described in clauses (a) through
(c), and any and all Shares issuable pursuant to Stock Awards or cash
payable under Performance Units granted to employees of the affected
Subsidiary or division, in situations described in clause (d), shall be
immediately issuable or paid in full, as the case may be, based in each
case on the extent to which performance goals have been achieved to the
date of the event described in clause (a), (b), (c) or (d) above. The
Committee may also determine that any Options not exercised, and any Stock
Awards or Performance Units with respect to which any restrictions shall
not have lapsed or conditions shall not have been satisfied, prior to any
such event, or within such period of time thereafter (not to exceed 120
days) as the Committee shall determine, shall terminate.
20.3 The grant of any Award pursuant to the Plan shall not affect in any
way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell,
or transfer all or any part of its business or assets or the business,
assets or stock of a Subsidiary.
21. NON-UNIFORM DETERMINATION
The Committee's determination under the Plan including, without
limitation, determination of the persons to receive Awards, the form,
amount and type of Awards, the terms and provisions of Awards and the
written material evidencing such Awards, any amendments to the terms and
provisions of any Awards, and the granting or rejecting of applications for
delivery of Shares need not be uniform and may be made selectively among
otherwise eligible employees whether or not such employees are similarly
situated.
22. TAXES
22.1 The Company may pay, withhold or require a Grantee to remit to
it amounts sufficient to satisfy the Company's federal, state, local or
other tax withholding obligations attributable to any Awards after giving
notice to the person entitled to receive such amount, and the Company may
defer making payment of any Award if any such tax, charge or assessment may
be pending until indemnified to its satisfaction.
22.2 Subject to the consent of the Committee, in connection with
(a) the exercise of a Non-Qualified Stock Option or (b) satisfaction of
conditions and/or lapse of restrictions on a Stock Award, a Grantee may
make an irrevocable election elect to tender back to the Company Shares
received pursuant to (a) or (b), having a Fair Market Value sufficient to
satisfy all or part of the Company's total federal, state, local and other
tax withholding obligations associated with the transaction. Any such
election shall be irrevocable and, except with respect to elections
incident to death, retirement, disability or termination of employment,
must be made by a Grantee prior to the Tax Date, made by a Grantee by
delivering written notice to the Secretary of the Company together with
such information and documents as the Committee may prescribe. The
Committee may disapprove of must approve any election, may suspend or
terminate the right to make elections, or may provide with respect to any
Award under this Plan that the right to make elections shall not apply to
such Award.
22.3 If a Grantee is an officer of the Company and is subject to the
provisions of Section 16 of the Exchange Act, then an election to have
Shares withheld and any exercise of such right are subject to the following
additional restrictions:
(a) no exercise shall be made within six months of the grant of the
Award, unless made incident to death, retirement, disability or termination
of employment; and
(b) both the election and exercise must be made during a Window
Period, unless made incident to death, retirement, disability or
termination of employment, or the election must be made six months prior
to the Tax Date.
22.4 22.3 If, pursuant to the provisions of the Code, the Tax Date of an
Award is deferred and a Grantee elects to have Shares withheld, the full
number of Option Shares or Stock Award Shares may be issued but the Grantee
shall enter into an agreement unconditionally obligating him or her to
tender back to the Company the proper number of Shares on the Tax Date.
23. NONCOMPETITION AND FORFEITURE PROVISION
If the Committee so determines, an Award may specify that a Grantee
shall forfeit all unexercised, unearned, and/or unpaid Awards, including,
but not limited to, Awards earned but not yet paid if, in the opinion of
the Committee, the Grantee, at any time during the period of Grantee's
employment and for one (1) year thereafter, without the written consent of
the Committee, engages directly or indirectly in any manner or capacity as
principal, agent, partner, officer, director, employee, or otherwise, in
any business or activity competitive with the business conducted by the
Company, in the geographic area in which the Company does business, or in
any manner which is inimical to the best interests of the Company.
24. TENURE
Nothing in the Plan or in any agreement entered into pursuant to the
Plan shall confer upon any participant the right to continue in the
employment of the Company or any Subsidiary or affect any right which the
Company or Subsidiary has to terminate the employment of such participant.
An employee terminated for cause, as determined by the Company, shall
forfeit all of his rights under the Plan, except as to Options already
exercised and Stock Awards on which restrictions have already lapsed.
25. APPLICATION OF PROCEEDS
The proceeds received by the Company from the sale of its Shares under
the Plan shall be used for general corporate purposes of the Company and
its Subsidiaries.
26. OTHER ACTIONS
Nothing in the Plan shall be construed to limit the authority of the
Company to exercise its corporate rights and powers, including, by way of
illustration and not by way of limitation, the right to grant options or
pay bonuses for proper corporate purposes otherwise than under the Plan to
any employee or any other person, firm, corporation, association or other
entity, or to grant options to, or assume options of, any person in
connection with the acquisition by purchase, lease, merger, consolidation
or otherwise, of all or any part of the business and assets of any person,
firm, corporation, association or other entity.
27. GENDER AND NUMBER
Except when otherwise indicated by the context, words in the masculine
gender when used in the Plan shall include the feminine gender, the
singular shall include the plural, and the plural shall include the
singular.
28. REQUIREMENTS OF LAW, GOVERNING LAW
The granting of Awards and the issuance of Shares shall be subject to
all applicable laws, rules and regulations, and to such approvals by any
governmental agencies or national securities exchanges as may be required.
The Plan, and all agreements hereunder, shall be construed in accordance
with and governed by the laws of the State of Missouri.
29. EFFECT ON OTHER PLANS
Participation in this Plan shall not affect an employee's eligibility
to participate in any other benefit or incentive plan of the Company or a
Subsidiary. Any Awards made pursuant hereto shall not be used in
determining the benefits provided under any other plan of the Company or
a Subsidiary unless specifically provided therein.
EXHIBIT 10.2.
NON-QUALIFIED (NON-ISO) STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Agreement"), made as of the _____ day
of ___________, 199___ (the "Date of Grant"), by and between AMC Entertainment
Inc. ("AMCE") and __________ (the "Grantee"), evidences the grant, by AMCE,
of a Stock Option (the "Option") to the Grantee on such date and the Grantee's
acceptance of the Option in accordance with the provisions of the AMCE 1994
Stock Option and Incentive Plan, as amended (the "Plan"). AMCE and the
Grantee agree as follows:
1.Shares Optioned and Option Price. The Grantee shall have an option
to purchase _____ shares of AMCE Common Stock for $_____ per share, which
exercise price is one hundred percent (100%) of the Fair Market Value of such
shares on the Date of Grant, subject to the terms and conditions of this
Agreement and of the Plan, the provisions of which are hereby incorporated
herein by reference. The shares subject to the Option are not, nor are they
intended to be, Incentive Stock Option (ISO) shares as described in Section
422 of the Internal Revenue Code of 1986, as amended (the "Code").
2.Vesting. Except as otherwise provided in section 3 below or in
the Plan, this Option shall be deemed vested with respect to the number of
shares described in section 1 as follows: (a) the right to purchase 50% of
the shares subject to this Option shall first be vested on the first
anniversary of the Date of Grant, and (b) the right to purchase the balance
of the shares subject to this Option shall first be vested on the second
anniversary of the Date of Grant. Notwithstanding the foregoing provisions
of this section 2, if the Grantee's employment with AMCE or a Subsidiary (as
defined in the Plan) terminates on account of death, disability (as defined
in the Plan) or retirement (as defined in the Plan), or if the Grantee's
employment is terminated for any reason within one year after the occurrence
of a Change in Control Event (as defined in the Plan), whether such
termination is voluntary or involuntary, the Option shall be deemed vested
as to all shares described in section 1 hereof as of the date of such
termination of employment.
3.Exercise Period. The Option may be exercised from time to time
with respect to all or any number of the then unexercised shares as to which
the Option has vested under section 2, on any regular business day of AMCE at
its then executive offices, until the earliest to occur of the following
dates:
(a) the tenth anniversary of the Date of Grant;
(b) the first anniversary of the date of the Grantee's termination
of employment with AMCE and all Subsidiaries (as defined in the Plan) on
account of death or disability;
(c) the third anniversary of the Grantee's retirement;
(d) the date three (3) months following the date upon which the
Grantee's employment with AMCE and all Subsidiaries terminates for any
reason other than those described in subsections (b) or (c) next above or
in (e) below; or
(e) the date Grantee is terminated for cause, provided that for
purposes of this Option no termination of employment occurring within one
year after the occurrence of a Change in Control Event shall be deemed a
termination for cause.
4.Exercise.
(a) During the period that the Option is exercisable, it may be
exercised in full or in part by the Grantee, his or her legal
representatives, guardian or Successor, as defined in the Plan, by
delivering or mailing written notice of the exercise to the Secretary of
AMCE. The written notice shall be signed by each person entitled to
exercise the Option and shall specify the address and Social Security
number of each such person. If any person other than the Grantee purports
to be entitled to exercise all or any portion of the Option, the written
notice shall be accompanied by proof, satisfactory to the Secretary of
AMCE, of that entitlement.
(b) The written notice shall be accompanied by full payment of the
exercise price for the shares as to which the Option is exercised either
(i) in cash, certified or bank cashier's check or money order, payable to
AMCE, (ii) in shares of AMCE Common Stock evidenced by certificates either
endorsed or with stock powers attached transferring ownership to AMCE,
with an aggregate Fair Market Value (as defined in the Plan) equal to said
exercise price on the date the written notice is received by the
Secretary, or (iii) in any combination of the foregoing.
(c) Notwithstanding the provisions of subsection (b) next above,
shares acquired through the exercise of an Incentive Stock Option granted
under the Plan or any predecessor stock option plan providing for options
on shares of AMCE Common Stock may be used as payment at exercise
hereunder only if such shares have been held for at least 12 months
following such acquisition.
(d) The written notice of exercise will be effective and the Option
shall be deemed exercised to the extent specified in the notice on the
date that the written notice (together with required accompaniments
respecting payment of the exercise price) is received by the Secretary of
AMCE at its then executive offices during regular business hours.
5.Transfer of Shares; Tax Withholding.
(a) As soon as practicable after receipt of an effective written
notice of exercise and full payment of the exercise price as provided in
section 4 above, the Secretary of AMCE shall cause ownership of the
appropriate number of shares of AMCE Common Stock to be transferred to the
person or persons exercising the Option by having a certificate or
certificates for such number of shares registered in the name of such
person or persons and shall have each certificate delivered to the
appropriate person. Notwithstanding the foregoing, if AMCE or a
Subsidiary requires reimbursement of any tax required by law to be
withheld with respect to shares of AMCE Common Stock, the Secretary shall
not transfer ownership of shares until the required payment is made.
(b) Subject to the approval of the Committee and to the provisions
of the Plan, the Grantee may satisfy his tax withholding obligations
hereunder by electing to have shares otherwise issuable upon exercise of
this Option withheld, which shares shall have a Fair Market Value on the
date of exercise equal to the amount of Grantee's tax withholding
liability resulting from such exercise. Any such election shall be made
at or prior to exercise of the Option by delivering written notice thereof
to the Secretary of the Company.
6.Transferability. Except for assignments made with the Committee's
prior written approval (which may be denied or conditioned in the sole
discretion of the Committee), the rights under this Agreement may not be
transferred except by will or the laws of descent and distribution or pursuant
to a qualified domestic relations order as defined in the Code or Title I of
the Employment Retirement Income Security Act, or the rules promulgated
thereunder. The rights under this Agreement may be exercised during the
lifetime of the Grantee only by the Grantee (or by his guardian, legal
representative or Successor, as defined in the Plan). The terms of this
Option shall be binding upon the executors, administrators, heirs, successors,
and assigns of the Grantee.
7.Authorized Leave. Authorized leaves of absence from AMCE or a
Subsidiary shall not constitute a termination of employment for purposes of
the Agreement. For purposes of this Agreement, an authorized leave of absence
shall be an absence while the Grantee is on military leave, sick leave, or
other bona fide leave of absence so long as the Grantee's right to employment
with AMCE or a Subsidiary is guaranteed by statute, contract, or company
policy.
8.Requirements of Law. This Option may not be exercised if the
issuance of shares of AMCE Common Stock upon such exercise would constitute
a violation of any applicable federal or state securities or other law or
valid regulation. The Grantee, as a condition to his exercise of this Option,
shall represent to AMCE that the shares of AMCE Common Stock to be acquired
by exercise of this Option are being acquired for investment and not with a
present view to distribution or resale, unless counsel for AMCE is then of the
opinion that such a representation is not required under the Securities Act
of 1933 or any other applicable law, regulation, or rule of any governmental
agency.
9.Forfeiture. To the extent this Option is unexercised, it will be
forfeited along with all rights thereunder effective as of the date the
Committee determines that the Grantee, at any time during the period of the
Grantee's employment and for one (1) year thereafter, without the Committee's
written consent, engaged directly or indirectly in any manner or capacity as
principal, agent, partner, officer, director, employee, or otherwise, in any
business or activity competitive with the business conducted by AMCE or its
Subsidiaries, in the geographic area in which AMCE or its Subsidiaries does
business, or in any manner which is inimical to the best interests of AMCE.
IN WITNESS WHEREOF, AMCE, by its duly authorized officer, and the Grantee
have signed this Agreement as of the date first above written.
AMC ENTERTAINMENT INC.
By:_______________________________________
__________________________________________
Grantee
The Grantee acknowledges receipt of copies of the Plan and the
Prospectus, dated ___________ respecting the Plan. The Grantee represents
that he is familiar with the terms and provisions of the Plan and Prospectus.
The Grantee hereby accepts this Option subject to all the terms and provisions
of the Plan, including but not limited to Section 20 ("Adjustments for
Corporate Changes") thereof. The Grantee hereby agrees to accept as binding,
conclusive, and final all decisions and interpretations of the Board of
Directors and, where applicable, the Committee (as defined in the Plan),
respecting any questions arising under the Plan.
____________________________________________
Grantee
EXHIBIT 10.3.
Form of American Multi-Cinema, Inc.
Retirement Enhancement Plan
Effective March 29, 1996
<PAGE>
PREAMBLE
WHEREAS, American Multi-Cinema, Inc. ("AMC") desires to retain the
services of certain executives in their executive capacities with AMC or
its affiliates and to provide appropriate total retirement compensation to
those executives; and
WHEREAS, the Company desires to adopt a nonqualified retirement plan,
effective March 29, 1996, to provide a select group of executives and their
beneficiaries with supplemental retirement benefits.
NOW, THEREFORE, effective March 29, 1996 the American Multi-Cinema,
Inc. Retirement Enhancement Plan shall be adopted as hereinafter set forth.
SECTION I
DEFINITIONS
When used herein, the following terms shall have the meanings set
forth below unless the context clearly indicates otherwise:
1.1"Accrued Benefit" means the Normal Retirement Benefit calculated
pursuant to Section 3.2 as of any date of determination. For purposes of
determining the Accrued Benefit, Final Average Compensation shall be
determined using the last three (3) full years of employment with the
Company prior to the date of determination, and the numerator of the
fraction described in Section 3.2(b) shall be the Participant's Years of
Service as of the date of determination.
1.2"Actuarial Equivalent" means the equivalent actuarial value,
determined using the actuarial factors selected by the Administrator, based
upon the advice of the consulting actuary retained by the Administrator.
1.3"Administrator" means the Compensation Committee of the Board of
Directors or such other person or persons as may be designated by the
Board.
1.4"Affiliate" means any trade or business entity, or a predecessor
company of such entity, if any, which is a member of a controlled group of
corporations of which the Company is also a member.
1.5"Basic Retirement Plan" means the Defined Benefit Retirement
Income Plan for Certain Employees of American Multi-Cinema, Inc., as
amended from time to time.
1.6"Basic Retirement Plan Benefit" means the actuarially equivalent
annual benefit to which a Participant is entitled from the Basic Retirement
Plan. The Basic Retirement Plan Benefit is based upon the accrued monthly
benefit to which a Participant is entitled, payable in the form of a single
life annuity commencing on the Participant's normal retirement date and
ending on the first day of the month during which the Participant's death
occurs. The Basic Retirement Plan Benefit assumes immediate commencement
with applicable reductions for early commencement based upon such reduction
factors as are applied under the Basic Retirement Plan.
1.7"Board of Directors" means the board of directors of the Company.
1.8"Company" means American Multi-Cinema, Inc. and any successor to
it.
1.9"Compensation" means the Participant's annual base salary,
including salary deferrals under employee benefit plans maintained by the
Company and described in Section 401(k) and/or Section 125 of the Internal
Revenue Code of 1986, as amended (the "Code") and including bonuses earned
and paid (or deferred) by the Company and each Affiliate for the fiscal
year.
1.10"Early Retirement Date" means the date on which the Participant
attains age 55 or is credited with 15 years of service, whichever is later,
but in no event earlier than the date five (5) years following such
Participant's initial date of participation hereunder.
1.11"Effective Date" means March 29, 1996, the first day of the
Company's 1997 fiscal year.
1.12"Enhancement Plan Benefit" means the benefit payable in accordance
with the Plan.
1.13"Final Average Compensation" means the average of the
Participant's Compensation earned during the last three (3) full years of
employment with the Company prior to commencing payments under the Plan,
which average shall not be recalculated if a Participant works beyond his
Normal Retirement Date.
1.14"Normal Retirement Date" means the date on which the Participant
attains age 65, but in no event earlier than the date as of which the
Participant has completed five (5) Years of Service with the Company,
whether before or after the Effective Date.
1.15"Officer" means an employee of the Company who has been appointed
by the Board of Directors to a position as a corporate officer at or above
the title of Vice President.
1.16"Participant" means any Officer who meets the eligibility
requirements of, and is designated and approved as set forth in, Section
2.1.
1.17"Plan" means this American Multi-Cinema, Inc. Retirement
Enhancement Plan.
1.18"Surviving Spouse" means the spouse of an active or retired
Participant who is legally married to the Participant on the Participant's
date of death.
1.19"Total and Permanent Disability" or "Disability" means the
apparently total and permanent disability of a Participant to perform the
usual duties of his employment with the Company in a reasonably efficient
manner, as determined by the Administrator in its sole discretion. Such
incapacity may be determined to exist when certified by a physician who is
mutually acceptable to the Administrator and the Participant or based upon
a determination of disability by the Social Security Administration.
1.20"Year of Service" means each calendar year prior to a
Participant's Normal Retirement Date during which the employee is credited
with employment on a full-time basis, provided that the employee is
employed by the Company or an Affiliate for the entire calendar year. In
the year which contains the employee's employment (or reemployment)
commencement date or death, disability or retirement date, such employee's
Years of Service shall also include a partial Year of Service (expressed in
terms of completed months) for the applicable portion of the year to be
considered.
SECTION II
ELIGIBILITY TO PARTICIPATE
2.1Eligibility. An Officer of the Company shall be eligible to
become a Participant of the Plan at such time, if any, as he or she is
designated and approved for participation by the Board of Directors, in its
discretion.
The Officers designated as Participants as of the Effective Date are
shown on Exhibit A attached hereto.
SECTION III
ELIGIBILITY FOR AND AMOUNT OF BENEFITS
3.1Eligibility. Each Participant is eligible to receive an
Enhancement Plan Benefit beginning on or after the Participant's Early
Retirement Date or Normal Retirement Date, unless the Enhancement Plan
Benefit is forfeited as hereinafter provided.
3.2Normal Retirement Benefit.
(a)The Enhancement Plan Benefit of a Participant who reaches
his Normal Retirement Date shall be an annual amount payable monthly for
the life of the Participant commencing on the first day of the month
following such Normal Retirement Date equal to (i) minus (ii) minus (iii)
minus (iv), where (i), (ii), (iii) and (iv) are:
(i)Sixty percent (60%) of the Participant's Final Average
Compensation;
(ii)the Participant's Basic Retirement Plan Benefit;
(iii)the Participant's Primary Social Security benefit
at age 65 or, if later, the Participant's Normal Retirement Date;
(iv)an amount equal to an annual annuity commencing at the
Normal Retirement Date attributable to the Company's contributions
(but not attributable to the Participant's contributions, as
applicable) to the AMC SERP Plan adopted effective January 1, 1994,
the American Multi-Cinema, Inc. 401(k) Savings Plan, the AMC
Nonqualified Deferred Compensation Plan, and the American Multi-
Cinema, Inc. Executive Savings Plan.
(b)If a Participant has completed fewer than 25 Years of
Service, the benefit calculated in Subsection (a)(i) above shall be
adjusted by multiplying the benefit by a fraction, the numerator of which
is the Participant's Years of Service at retirement and the denominator of
which is 25.
3.3Early Retirement Benefit. A Participant who has attained his
Early Retirement Date and has retired thereafter (or whose employment has
terminated previously under the circumstances described in Section 3.8(c))
shall receive a monthly retirement benefit in an amount equal to his
Accrued Benefit, reduced by six and two-thirds percent (6 2/3%) for each of
the first five years by which commencement precedes age 65 and an
additional three and one-third percent (3 1/3%) for each year by which such
commencement precedes age 60. In each case, such reductions shall be
applied on a pro-rata basis for less than full years.
3.4Deferred Retirement Benefit. A Participant's Accrued Benefit
shall commence at his Normal Retirement Date whether or not the Participant
continues to be employed by the Company. Any Participant who attained age
65 prior to the Effective Date shall commence receipt of his Accrued
Benefit under the Plan as of the Effective Date, based on the provisions of
Section 3.2 as though the Effective Date were such Participant's Normal
Retirement Date and the date of commencement of the Participant's benefits
under each of the benefit sources described in Section 3.2. In calculating
such Participant's Accrued Benefit hereunder, the amounts attributable to
each benefit source under Section 3.2 shall be determined using the actual
benefit payable from such benefit source, if payments from such source
already have commenced at the time of calculation. If such amount from
each benefit source is not payable in the form of a life annuity, the
amount determined under Sections 3.2(a)(ii), 3.2(a)(iii) and 3.2(a)(iv) as
appropriate shall be the amount of an actuarially equivalent life annuity
commencing on the later of the date such benefit commences and the date the
Enhancement Plan Benefits commence.
3.5Death While Actively Employed and Prior to Commencement of
Benefits. If a Participant dies while still actively employed but before
he has commenced his Enhancement Plan Benefit, the Participant's Surviving
Spouse, if any, shall be entitled to receive a monthly benefit for life
commencing on the first of the month coincident with or following the later
of (a) the Participant's death and (b) the date the Participant would have
first become eligible to receive his Enhancement Plan Benefit under Section
3.1 based on his Years of Service at the time of his death. The amount of
this benefit shall be 50% of the Participant's Accrued Benefit actuarially
reduced for payment as a 50% Joint & Contingent annuity, and further
reduced, as applicable, under Section 3.3 for commencement before the
Participant's attainment of age 65.
3.6Death After Commencement of Benefits. If a Participant dies
after he has commenced his Enhancement Plan Benefit, his beneficiary shall
be entitled to receive the amount payable, if any, under the form of
benefit elected by such Participant. If a Participant dies after he has
retired but prior to commencement of his benefit, his election under
Section 4.1 shall be void and his Surviving Spouse shall be entitled to the
benefit described in Section 3.5.
3.7Disability Benefit. Upon Total and Permanent Disability, a
Participant shall be entitled to an immediate annual disability benefit,
payable for the life of the Participant, equal to his Accrued Benefit
determined under Section 3.2 as of his date of disability but without
reduction by reason of early commencement, payable commencing as of the
first day of the month following the date of such disability, but reduced
by the monthly benefit amount, if any, under any long term disability plan
or policy provided by the Company.
3.8Forfeiture on Termination of Employment.
(a)If a Participant's employment with the Company or an
Affiliate terminates for any reason (or no reason), without the Company's
express written consent, prior to such Participant's Early Retirement Date,
the Participant shall forfeit all right to benefits under the Plan.
(b)If a Participant's employment is terminated by the Company
at any time, including after his Early Retirement Date or Normal Retirement
Date, for Cause, the Participant shall forfeit all benefit rights under the
Plan. Termination by the Company of "for Cause" means termination upon:
(i)the willful and continued failure by the Participant to
substantially perform his duties with the Company (other than any such
failure resulting from disability) after a written demand for
substantial performance is delivered to the Participant by the
Company, which demand specifically identifies the manner in which the
Company believes the Participant has not substantially performed his
duties, or
(ii)the willful engaging by the Participant in conduct that
is demonstrably and materially injurious to the Company, monetarily or
otherwise.
(c)If a Participant's employment is terminated at any time,
either at the request of the Company (other than for Cause), or if such
termination of employment is deemed by the Company to occur as a result of
Change of Control, the Participant shall be entitled to receive his Accrued
Benefit under Section 3.2 or 3.3 as applicable.
A "Change in Control of the Company" shall be deemed to have
occurred if:
(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (other than the Company, the Durwood Interests, any
trustee or other fiduciary holding securities under an employee
benefit plan of the Company, or any company owned, directly or
indirectly, by the shareholders of the Company in substantially the
same proportions as their ownership of stock of the Company), is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's
then outstanding securities. The "Durwood Interests" means (i) Stanley
H. Durwood, his spouse and any of his lineal descendants and their
respective spouses (collectively, the "Durwood Family") and any
Affiliate of any member of the Durwood Family, (ii) Stanley H.
Durwood's estate, or any trust established by Stanley H. Durwood,
during any period of administration prior to the distribution of
assets to beneficiaries who are Persons described in clause (iii)
below, and (iii) any trust which is 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) or solely for the benefit
of one or more charitable organizations or solely for the benefit of a
combination of members of the Durwood Family and one or more
charitable organizations;
(ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board
of Directors and any new director (other than a director designated by
a person who has entered into an agreement with the Company to effect
a transaction described by clause (i), (iii) or (iv) of this
paragraph) whose election by the Board or nomination for election by
the Company's shareholders was approved by a vote of at least two-
thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute at least a majority thereof;
(iii) the shareholders of the Company approve a merger or
consolidation of the Company with any other company, other than (A) a
merger or consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation or (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than 50% of the
combined voting power of the Company's then outstanding securities; or
(iv) the shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets.
3.9Maximum Annual Payment. In the event the payment of all or any
portion of an annual Enhancement Plan Benefit would be nondeductible by the
Company or any Affiliate in any year under the terms of Section 162(m) of
the Code, such nondeductible amount shall be deferred and paid in a lump
sum as soon as practicable in the immediately following year.
SECTION IV
FORM AND COMMENCEMENT BENEFITS
4.1Form of Benefits. Upon commencement of benefits pursuant to
Sections 3.2, 3.3 or 3.4, a Participant shall be deemed to have elected to
receive his Enhancement Plan Benefit as a life annuity or, prior to
commencement of such benefit, the Participant may request payment of his
Enhancement Plan Benefit in any other form acceptable to the Administrator.
Such alternative form of annuity shall be the Actuarial Equivalent of the
Participant's Accrued Benefit payable as a life annuity. Such election
shall be made in accordance with procedures established by the
Administrator and failure to make an election will be deemed to be an
election of the life annuity form of benefit.
4.2Commencement of Benefits. An Enhancement Plan Benefit payable to
a Participant pursuant to paragraphs 3.2 or 3.3 shall commence to be paid
on the first day of the month coincident with or next following the
Participant's retirement on or after his Early Retirement Date and, in any
event, coincident or next following his Normal Retirement Date, unless
calculation of the benefit or other circumstances as reasonably determined
by the Administrator cause a delay in such payment. In the event payment
of a Participant's benefit is delayed more than thirty (30) days beyond the
date the Participant otherwise would be entitled to the payment hereunder,
the amount of such payment(s) shall be increased by an interest factor
equal to the then actuarially assumed rate of return under the Basic
Retirement Plan. An Enhancement Plan Benefit payable to a Surviving Spouse
pursuant to paragraph 3.4 or 3.5 shall commence as set forth in paragraph
3.4 or 3.5. In the event a Participant is entitled to severance payments
under a severance payment agreement, benefits under this Plan will not
commence until payments under the severance payment agreement have ceased.
SECTION V
AMENDMENT AND TERMINATION
5.1Amendment or Termination. The Company reserves the right to
amend or terminate the Plan by, or pursuant to, action of the Board of
Directors when, in the sole opinion of the Company, an amendment or
termination is advisable. Any amendment or termination shall be made
pursuant to a resolution of the Board of Directors and shall be effective
as of the date of such action. No amendment or termination of the Plan
shall directly or indirectly deprive any Participant or Surviving Spouse of
all or any portion of any Enhancement Plan Benefit currently being paid or
payable under the Plan, nor shall an amendment or termination reduce the
amount of any benefit considered to be accrued under the Plan to the date
of amendment or termination.
SECTION VI
ADMINISTRATION
6.1Administrator. The Plan shall be administered by the
Administrator, which shall have the authority to interpret the Plan, to
determine eligibility hereunder, to determine the nature and amount of
benefits and to decide and settle disputes relative to the rights of any
party under the Plan, all in its sole discretion. Any construction or
interpretation of the Plan and any determination of fact in administering
the Plan made in good faith by the Administrator shall be final and
conclusive upon all parties for all Plan purposes. All interpretations of
the Plan or determinations of entitlement to benefits shall be in writing,
signed by authority of the Administrator.
6.2Claims Procedure.
(a)The Administrator shall prescribe a form for the
presentation of claims under the terms of this Plan.
(b)Upon presentation to the Administrator of a claim on the
prescribed form, the Administrator shall make a determination of the
validity thereof. If the determination is adverse to the claimant, the
Administrator shall furnish to the claimant within 90 days after the
receipt of the claim a written notice setting forth the following:
(i)the specific reason or reasons for the denial;
(ii)specific references to pertinent provisions of the Plan
on which the denial is based;
(iii)a description of any additional material or
information necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary; and
(iv)appropriate information as to the steps to be taken if
the claimant wishes to submit his or her claim for review.
(c)In the event of a denial of a claim, the claimant or his or
her duly authorized representative may appeal such denial to the
Administrator for a full and fair review of the adverse determination.
Claimant's request for review must be in writing and made to the
Administrator within 60 days after receipt by claimant of the written
notification required under Section 6.2(b); provided, however, such 60-day
period shall be extended if circumstances so warrant. Claimant or his or
her duly authorized representative may submit issues and comments in
writing which shall be given full consideration by the Administrator in its
review.
(d)The Administrator may, in its sole discretion, conduct a
hearing. A request for a hearing made by claimant will be given full
consideration. At such hearing, the claimant shall be entitled to appear
and present evidence and be represented by counsel.
(e)A decision on a request for review shall be made by the
Administrator not later than 60 days after receipt of the request;
provided, however, in the event of a hearing or other special
circumstances, such decision shall be made not later than 120 days after
receipt of such request. If it is necessary to extend the period of time
for making a decision beyond 60 days after the receipt of the request, the
claimant shall be notified in writing of the extension of time prior to the
beginning of such extension.
(f)The Administrator's decision on review shall state in
writing the specific reasons and references to the Plan provisions on which
it is based. Such decision shall be promptly provided to the claimant. If
the decision on review is not furnished in accordance with the foregoing,
the claim shall be deemed denied on review.
SECTION VII
MISCELLANEOUS
7.1No Effect on Employment Rights. Nothing contained herein will
confer upon any Participant the right to be retained in the service of the
Company or any Affiliate nor limit the right of the Company or any
Affiliate to discharge or otherwise deal with a Participant without regard
to the existence of the Plan.
7.2Funding. The Plan at all times shall be entirely unfunded and
unsecured and no provisions shall at any time be made with respect to
segregating any assets of the Company for payment of benefits hereunder.
No Participant, Surviving Spouse or any other person shall have any
interest in any particular assets of the Company by reason of the right to
receive a benefit under the Plan. To the extent that the Participant or
any other person acquires a right to receive benefits under this Plan, such
right shall be no greater than the right of any unsecured general creditor
of the Company.
7.3Spendthrift Provisions. No benefit payable under the Plan shall
be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, or charge prior to actual receipt thereof
by the payee, and any attempt so to anticipate, alienate, sell, transfer,
assign, pledge, encumber or charge prior to such receipt shall be void; and
the Company shall not be liable in any manner for or subject to the debts,
contracts, liabilities, engagements or torts of any person entitled to any
benefit under the Plan.
7.4State Law. The Plan is established under and will be construed
according to the laws of the State of Missouri, to the extent that such
laws are not preempted by the Employee Retirement Income Security Act of
1974 ("ERISA") and valid regulations promulgated thereunder.
7.5Incapacity of Recipient. In the event a Participant or Surviving
Spouse is declared incompetent and a conservator or other person legally
charged with the care of the person or the estate of the Participant or
Surviving Spouse is appointed, any benefits under the Plan to which such
Participant or Surviving Spouse is entitled shall be paid to the
conservator or other person legally charged with the care of the
Participant. Except as provided in the preceding sentence, should the
Administrator, in its discretion, determine that a Participant or Surviving
Spouse is unable to manage personal affairs, the Administrator may make
distributions to any person for the benefit of the Participant or Surviving
Spouse.
7.6Unclaimed Benefit. Each Participant shall keep the Company
informed of a current address and the current address of the Participant's
Surviving Spouse. The Administrator shall not be obligated to search for
the whereabouts of any person. If the location of a Participant is not
made known to the Company within three (3) years after the date on which
any payment of the Participant's Enhancement Plan Benefit may be made, such
benefit shall be forfeited but will be reinstated if a claim therefore is
filed by the Participant or his legal representative.
7.7Select Group. This Plan is "maintained primarily for the purpose
of providing deferred compensation to a select group of management or
highly compensated employees" of the Company and is intended to qualify as
a "Top Hat" plan under ERISA.
7.8Gender and Number. The masculine gender, where appearing herein,
shall be deemed to include the feminine gender, and the singular shall be
deemed to include the plural, unless the context clearly indicates to the
contrary.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its authorized officers this ______ day of __________________,
1996.
AMERICAN MULTI-CINEMA, INC.
ATTEST:
<PAGE>
EXHIBIT A
PARTICIPANTS ON THE EFFECTIVE DATE OF THE PLAN
Chairman & CEO S. Durwood
EVP & COO P. Singleton
EVP & CFO P. Brown
