SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
AMC ENTERTAINMENT INC.
(name of issuer)
COMMON STOCK, 66 2/3 cents PAR VALUE
001669 10 0
(CUSIP number)
Raymond F. Beagle, Jr.
LATHROP & GAGE L.C.
2345 Grand Avenue
Kansas City, Missouri 64108-2684
(816) 460-5823
(name, address and telephone number)
of person authorized to receive
notices and communications)
July 14, 1999
(date of event which requires filing
of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 24 pages)
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*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
CUSIP No. 001669 10 0
(1) Names of reporting Persons; S.S. or I.R.S. Identification Nos. of Above
Persons.
1992 Durwood, Inc. Voting Trust, as amended and restated August 12, 1997
(2) Check the appropriate box if a member of a Group (See Instructions)
(a) [ ]
(b) [ ]
(3) SEC Use Only
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(4) Source of Funds (See Instructions)
00
(5) Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [ ]
(6) Citizenship or Place of Organization
Delaware.
Number of Shares (7) Sole Voting Power 0
Beneficially
Owned by Each (8) Shared Voting Power 4,041,993
Reporting
Person (9) Sole Dispositive Power 0
With
(10) Shared Dispositive Power 4,041,993
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
4,041,993
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) [ ]
(13) Percent of Class Represented by Amount in Row (11) 17.2 %
(14) Type of Reporting Person (See Instructions) OO
2
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CUSIP No. 001669 10 0
(1) Names of reporting Persons; S.S. or I.R.S. Identification Nos. of Above
Persons.
Trust created under Revocable Trust Agreement dated August 14, 1989 of
Stanley H. Durwood, as amended and restated on May 12, 1999
(2) Check the appropriate box if a member of a Group (See Instructions)
(a) [ ]
(b) [ ]
(3) SEC Use Only
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(4) Source of Funds (See Instructions)
00
(5) Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [ ]
(6) Citizenship or Place of Organization
Delaware.
Number of Shares (7) Sole Voting Power 0
Beneficially
Owned by Each (8) Shared Voting Power 0
Reporting
Person (9) Sole Dispositive Power 0
With
(10) Shared Dispositive Power 4,041,993
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
4,041,993
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) [ ]
(13) Percent of Class Represented by Amount in Row (11) 17.2 %
(14) Type of Reporting Person (See Instructions) OO
3
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CUSIP No. 001669 10 0
(1) Names of reporting Persons; S.S. or I.R.S. Identification Nos. of Above
Persons.
Raymond F. Beagle, Jr., as trustee
(2) Check the appropriate box if a member of a Group (See Instructions)
(a) [ ]
(b) [ ]
(3) SEC Use Only
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(4) Source of Funds (See Instructions)
00
(5) Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [ ]
(6) Citizenship or Place of Organization
U.S. Citizen
Number of Shares (7) Sole Voting Power 0
Beneficially
Owned by Each (8) Shared Voting Power 4,041,993
Reporting
Person (9) Sole Dispositive Power 0
With
(10) Shared Dispositive Power 4,041,993
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
4,041,993
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) [ ]
(13) Percent of Class Represented by Amount in Row (11) 17.2 %
(14) Type of Reporting Person (See Instructions) IN/OO
4
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CUSIP No. 001669 10 0
(1) Names of reporting Persons; S.S. or I.R.S. Identification Nos. of Above
Persons.
Charles J. Egan, Jr., as trustee
(2) Check the appropriate box if a member of a Group (See Instructions)
(a) [ ]
(b) [ ]
(3) SEC Use Only
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(4) Source of Funds (See Instructions)
00
(5) Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [ ]
(6) Citizenship or Place of Organization
U.S. Citizen
Number of Shares (7) Sole Voting Power 0
Beneficially
Owned by Each (8) Shared Voting Power 4,041,993
Reporting
Person (9) Sole Dispositive Power 0
With
(10) Shared Dispositive Power 4,041,993
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
4,041,993
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions) [ ]
(13) Percent of Class Represented by Amount in Row (11) 17.2 %
(14) Type of Reporting Person (See Instructions) IN/OO
5
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1. Security and Issuer.
This report relates to Common Stock, par value 66 2/3 cents per share
("Common Stock"), of AMC Entertainment Inc., a Delaware corporation ( the
"Company"). The principal executive offices of the Company are located at 106 W.
14th Street, Kansas City Missouri 64141.
2. Identity and Background.
This report is filed by (a) the 1992 Durwood, Inc. Voting Trust dated
December 12, 1992, as amended and restated on August 12, 1997 (the "Voting
Trust"), (b) the trust created under the Revocable Trust Agreement dated August
14, 1989 of Stanley H. Durwood, as amended and restated on May 12, 1999 (the
"Revocable Trust"), and (c) Raymond F. Beagle, Jr. and Charles J. Egan, Jr. (i)
as successor trustees of the Voting Trust, (ii) as successor trustees of the
Revocable Trust, and (iii) as surviving trustees of the Stanley H. Durwood
Foundation (the "Foundation") created under that certain Trust Indenture dated
April 27, 1999 (the "Foundation Trust Indenture"), and (d) by Charles J. Egan,
Jr., as trustee of the Pamela Yax Durwood Marital Trust (the "Marital Trust") to
be created under the Revocable Trust following the death of Stanley H. Durwood.
Raymond F. Beagle, Jr. is a United States citizen whose business address is
2345 Grand Avenue, Suite 2800, Kansas City, Missouri 64105. He is a member of
the law firm of Lathrop & Gage L.C. and serves as general counsel of the
Company.
Charles J. Egan, Jr. is a United States citizen whose business address is
2501 McGee, MD 561, Kansas City, Missouri 64108. He is a Vice President of
Hallmark Cards, Incorporated and serves as a director of the Company.
During the past five years, neither Mr. Beagle nor Mr. Egan has been
convicted in any criminal proceeding nor been a party to any civil proceeding of
a judicial or administrative body of competent jurisdiction which resulted in
him being subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activity subject to, federal or state
securities laws or finding a violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The trustees are successor trustees to Mr. Stanley H. Durwood under the
Voting Trust (in such capacity, "Successor Trustees") as the result of the death
of Mr. Stanley H. Durwood on July 14, 1999. The Voting Trust has legal title to
the shares of Class B Stock described herein. The Voting Trust has issued a
single Voting Trust certificate to the Revocable Trust, which Voting Trust
certificate evidences the beneficial interest in the shares of Company Class B
Stock held of record by the Voting Trust.
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Item 4. Purpose of the Transaction.
The terms of the Voting Trust provide that it was established to ensure
continuity and stability of Company policies and prudent and competent
management of the Company's business. The Voting Trust generally directs the
Successor Trustees to exercise their best judgment in the interest of the
Company to assure proper, stable and continuous management of the Company. The
Voting Trust generally empowers the Successor Trustees to vote shares of the
Company held therein in such manner as in their judgment may be for the best
interests of the holders of beneficial interests in the Voting Trust while
taking into account the interest of the Company. The Voting Trust provides that
the trustees are to hold shares in the Voting Trust for the common and mutual
benefit of the beneficiaries, subject to the terms of the Voting Trust.
Except for the limited open market sales required to meet funding
requirements referred to herein, the undersigned have no plans or proposals to
sell stock of the Company or to engage in any other transaction of a nature
required to be disclosed under this Item by Schedule 13D.
Subject to the requirement to make the distributions described below, the
Revocable Trust authorizes and directs the trustees of the Revocable Trust to
retain as an investment any securities of the Company or Voting Trust
certificates which may be held by the Revocable Trust until such time as such
trustees in their sole and absolute judgment and discretion deem it be to the
best advantage of the Revocable Trust and its beneficiaries and the Company to
sell them.
Notwithstanding the transfers of Voting Trust certificates evidencing
beneficial interests in the Class B Stock of the Company to the Marital Trust
and the Foundation described below, the Successor Trustees of the Voting Trust
will retain voting power over the shares of Class B Stock held in the Voting
Trust relating to such Voting Trust certificates.
Among other matters, the Revocable Trust provides for the distribution to
the Marital Trust of Voting Trust certificates representing the beneficial
interest in 500,000 shares of Class B Stock of the Company. This distribution is
to be made within one year after the date of Mr. Durwood's death. The Marital
Trust provides for the distribution of all income and, in addition, certain
amounts of principal in cash or in kind to Pamela Yax Durwood, the surviving
spouse of Stanley H. Durwood and the sole beneficiary of the Marital Trust
during her lifetime, at such times as she may request, subject to specified
annual limits.
The Revocable Trust also provides for the creation and funding of
charitable remainder trusts for various persons in the aggregate amount of $1.7
million. It likely will be necessary to sell Company shares in order to provide
for such trusts.
After making allowance for all other distributions and taxes, debts and
expenses of administration, the Revocable Trust provides for the distribution of
the remainder of its assets to the Foundation. These assets are expected to
include all other Voting Trust certificates evidencing beneficial interests in
Class B Stock of the Company.
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The Foundation is intended to qualify under Section 509(a)(3) of the
Internal Revenue Code. The Foundation Trust Indenture directs the trustees
thereunder to distribute all net income of the Foundation and so much of
principal as they deem appropriate to establish, support and fund such programs
operated, funded or sponsored by The Greater Kansas City Community Foundation
and Affiliated Trusts as the Stanley H. Durwood Foundation trustees deem
appropriate. However, the Foundation Trust Indenture does not mandate
distribution of principal over or during any specified period of time. The terms
of the Foundation Trust Indenture empower the trustees of the Foundation to hold
shares of stock and Voting Trust certificates and do not require diversification
of investments.
The trustees anticipate that they may convert shares of Class B Stock into
Common Stock of the Company and sell such shares in the open market from time to
time in order to meet funding requirements of the charitable remainder trusts,
the Marital Trust and the Foundation, as described above.
Item 5. Interest in Securities of the Issuer.
(a) The Voting Trust and the Revocable Trust may be deemed to beneficially
own 4,041,993, or 100%, of the outstanding shares of Class B Stock of the
Company. These shares generally represent 67.5% of the combined voting power of
the outstanding shares of the Company, other than in the election of directors.
In the election of directors, holders of Class B Stock are entitled as of the
date of this report to elect 75% of the Board. Were all of the shares of Class B
Stock converted to Common Stock, there would be 23,469,091 shares of Common
Stock outstanding of which the Voting Trust would hold of record 4,041,993, or
17.2%, of such shares. By reason of their positions as trustees, Mr. Beagle and
Mr. Egan may be deemed for purposes of Section 13(d) of the Securities Exchange
Act of 1934 to beneficially own all shares of the Company held of record by the
Voting Trust. Pursuant to Rule 13d-4 of the Exchange Act, each such trustee
disclaims such beneficial ownership of any shares of stock attributable to him
solely by reason of his position as trustee.
(b) In their capacities as trustees of the Voting Trust, the Revocable
Trust and of the Foundation, Mr. Beagle and Mr. Egan share the power to vote and
dispose of the shares held of record by the Voting Trust. Although Mr. Egan will
be the sole trustee of the Marital Trust, Mr. Beagle will continue to share the
power to dispose of the shares in which the Marital Trust has a beneficial
interest because under the terms of the Voting Trust, the Voting Trust trustees
must approve any transfer of shares held in the Voting Trust. As stated above,
as Successor Trustees of the Voting Trust, Mr. Beagle and Mr. Egan will continue
to have the power to vote shares of Class B Stock held by the Voting Trust when
Voting Trust certificates evidencing the beneficial interest in such shares are
transferred from the Revocable Trust to the Marital Trust and the Foundation.
(c) Not applicable
(d) The Voting Trust provides for the distribution to holders of Voting
Trust certificates of cash payments equal to dividends received by the Voting
Trust, less reasonable costs of administration.
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When the Marital Trust is created, Mr. Durwood's surviving spouse, Pamela
Yax Durwood, will be its sole beneficiary during her lifetime.
(e) Not applicable
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to
Securities of the Issuer.
Provisions of the Revocable Trust that may result in transfer of shares of
Company stock are described in Item 4.
The Voting Trust was made between Stanley H. Durwood, as initial trustee of
the Voting Trust, as trustee of the Revocable Trust and individually, and
Raymond F. Beagle, Jr. and Charles J. Egan, Jr., as Successor Trustees under the
Voting Trust. The Voting Trust provides for a separate Voting Trust Share for
each named beneficiary of the Revocable Trust. Under the Voting Trust Agreement,
the Successor Trustees must consent to any transfer of shares held in the Voting
Trust by a beneficiary and to any release of shares from, or any termination of,
the Voting Trust. The Voting Trust expires no later than December 31, 2030,
unless, if permitted by law, the Voting Trust trustees extend its term. The
Successor Trustees may appoint and remove additional trustees and may designate
their own successors.
Item 7. Material to be Filed as Exhibits.
99.1 Joint Filing Agreement.
The undersigned represent that each of them is eligible to use Schedule 13D
and acknowledge that the Schedule 13D to which this Joint Filing Agreement is an
exhibit is filed on behalf of each of them, that each of them is responsible for
the timely filing of any amendments thereto and for the completeness and the
accuracy of the information concerning such person contained therein.
99.2 Durwood Voting Trust (Amended and Restated 1992 Durwood, Inc. Voting
Trust Agreement dated August 12, 1997). (attached)
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SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief, each
of the undersigned certifies that the information set forth in this statement is
true, complete and accurate.
/s/ Raymond F. Beagle, Jr.
-----------------------------------
Raymond F. Beagle, Jr.
On behalf of and as successor
trustee of the 1992 Durwood, Inc.
Voting Trust dated December 12,
1992, as amended and restated on
August 12, 1997, on behalf of and
as successor trustee of the
Revocable Trust August 14, 1989 of
Stanley H. Durwood, as amended and
restated on May 12, 1999, and as
surviving trustee of the Stanley H.
Durwood Foundation
/s/ Charles J. Egan, Jr.
-----------------------------------
Charles J. Egan, Jr.
On behalf of and as successor
trustee of the 1992 Durwood, Inc.
Voting Trust dated December 12,
1992, as amended and restated on
August 12, 1997, on behalf of and
as successor trustee of the
Revocable Trust August 14, 1989 of
Stanley H. Durwood, as amended and
restated on May 12, 1999, as
surviving trustee of the Stanley H.
Durwood Foundation, and as trustee
of the Pamela Yax Durwood Marital
Trust to be created under t
Revocable Trust
DURWOOD VOTING TRUST
(Amended and Restated 1992 Durwood, Inc.
Voting Trust Agreement)
THIS VOTING TRUST AGREEMENT (the "Agreement") is made this 12th day of
August, 1997, between the following Parties:
1. STANLEY H. DURWOOD, as Initial Trustee of the 1992 Durwood, Inc.
Voting Trust (the "Voting Trust"), established under that certain 1992
Durwood, Inc. Voting Trust Agreement dated December 12, 1992, as
amended by the First Amendment thereto dated September 27, 1994
(collectively, the "Voting Trust Agreement"), and as such, possessing
all of the voting rights thereunder;
2. RAYMOND F. BEAGLE, JR., and CHARLES J. EGAN, JR., as the Named
Successor Trustees under said 1992 Durwood, Inc. Voting Trust.
3. STANLEY H. DURWOOD, Trustee of the trust created pursuant to the
Revocable Trust Agreement of Mr. Stanley H. Durwood dated August 14,
1989, as amended (the "Revocable Trust"); and
4. STANLEY H. DURWOOD, an individual ("SHD").
WITNESSETH:
WHEREAS, SHD created the Voting Trust pursuant to the terms and conditions
of the Voting Trust Agreement;
WHEREAS, the Revocable Trust is referred to as the "Shareholder";
WHEREAS, Durwood, Inc., a Missouri corporation ("DI"), is a corporation
duly organized and validly existing under the laws of the State of Missouri,
with authorized capital stock consisting of (i) 150,000 shares of Class A Stock,
par value $100.00 per share ("DI Class A Stock"), 120,000 shares of which are
issued and outstanding, and (ii) 50,000 shares of Class B Stock, par value
$100.00 per share ("DI Class B Stock"), 40,784 shares of which are issued and
outstanding;
WHEREAS, the Shareholder transferred 120,000 shares of the DI Class A Stock
to the Trustees of the Voting Trust in exchange for Voting Trust Certificate
Number 1 dated December 12, 1992;
WHEREAS, the Shareholder withdrew 500 shares of the DI Class A Stock from
the Voting Trust, and donated such 500 shares of the DI Class A Stock to Harvard
College on December 29, 1993;
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WHEREAS, as a result of the gift to Harvard College, the Trustees of the
Voting Trust owned 119,500 shares of the DI Class A Stock, canceled Voting Trust
Certificate Number 1 and issued to the Shareholder Voting Trust Certificate
Number 2 dated December 29, 1993, for 119,500 shares of DI Class A Stock;
WHEREAS, American Associated Enterprises, a Missouri limited partnership
("AAE"), owned 40,784 shares of the DI Class B Stock;
WHEREAS, as a result of the liquidation of AAE, the Shareholder received
4,818.4664 of the DI Class B Stock;
WHEREAS, AMC Entertainment, Inc., a Delaware corporation ("AMCE" or
"Company"), is a corporation duly organized and validly existing under the laws
of the State of Delaware, with capital stock consisting of (i) issued and
outstanding shares of Common Stock, par value 66 2/3 per share ("AMCE Common
Stock"), (ii) issued and outstanding shares of Class B Stock, par value 66 2/3
per shares ("AMCE Class B Stock"), and (iii) shares of Preferred Stock, par
value 66 2/3 per share ("AMCE Preferred Stock"), of which shares of $1.75
Cumulative Convertible Preferred Stock ("AMCE Convertible Preferred Stock") are
issued and outstanding; and
WHEREAS, AMCE and DI have executed an Agreement and Plan of Merger and
Reorganization dated March 31, 1997 (the "Merger Agreement"), pursuant to which
DI merged with and into AMCE with AMCE remaining as the surviving corporation
("the Merger");
WHEREAS, as a result of the consummation of the Merger as contemplated
in the Merger Agreement, each share of DI Class A Stock held by the Voting Trust
was converted into and exchanged for 32.142857 shares of AMCE Class B Stock so
that the 119,500 shares of DI Class A Stock previously held by the Voting Trust
were converted into and exchanged for an aggregate of 3,841,071 shares of AMCE
Class B Stock;
WHEREAS, as a result of the consummation of the Merger as contemplated in
the Merger Agreement, each share of DI Class B Stock held by the Shareholder was
converted into and exchanged for 243.767528 shares of AMCE Class B Stock, so
that the 4,818.4664 shares of DI Class B Stock held by the Shareholder were
converted into and exchanged for an aggregate of 1,174,586 shares of AMCE Class
B Stock;
WHEREAS, the Shareholder has transferred to the Voting Trust all of the
1,174,586 shares of AMCE Class B Stock received in the Merger after which the
Voting Trust holds 5,015,657 shares of AMCE Class B stock;
WHEREAS, the Parties wish to acknowledge that as a result of the
consummation of the Merger of DI, a Missouri corporation, into AMCE, a Delaware
corporation, and the exchange of stock described above, that this Agreement will
be governed by the laws of the State of Delaware;
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<PAGE>
WHEREAS, SHD and the Shareholder wish to amend and restate the Voting Trust
Agreement in the manner hereinafter set forth;
WHEREAS, in Paragraph 9.5 of SECTION 9 of the Voting Trust Agreement,
STANLEY H. DURWOOD, as Initial Trustee and holder of all voting rights, is given
the power to amend the Voting Trust Agreement; and
WHEREAS, RAYMOND F. BEAGLE, JR., and CHARLES J. EGAN, JR., wish to
acknowledge their consent to this amendment and restatement, as set forth in
this Agreement.
NOW, THEREFORE, the Parties, pursuant to said Paragraph 9.5 of SECTION 9,
hereby amend and restate the Voting Trust Agreement, as follows:
ITEM I
SECTION 1 of the Voting Trust Agreement shall be deleted in its entirety,
as DI is no longer a party to this Agreement and the remaining Parties are
otherwise identified in this Agreement. The Parties hereby release and discharge
DI from any and all duties and obligations under the Voting Trust as of the
effective time of the Merger of DI into AMCE, (the term "effective time" having
the same meaning as in the Merger Agreement), and AMCE shall have no contractual
duties, rights or obligations under this Agreement as the successor to DI after
said effective time of the Merger.
ITEM II
SECTIONS 2 through 10 of the Voting Trust Agreement shall be deleted in
their entirety, and the following SECTIONS 2 through 10 shall be substituted
therefor and shall constitute the entire Amended and Restated Voting Trust
Agreement as of the effective time of the Merger.
SECTION 2
2.1. Establishment of Voting Trust. The Shareholder and SHD deem it to be
to the Shareholder's and SHD's advantage and in the best interests of the
Company to establish arrangements to ensure continuity and stability of Company
policies and prudent and competent management of the Company's business. In
consideration of said premises and of the covenants contained herein, the
Shareholder and SHD establish this Voting Trust as of the Effective Date upon
the terms and conditions stated herein. The Voting Trust shall be formally known
as the "Durwood Voting Trust" after the execution of this amendment.
2.2. Acceptance by Trustees. The Initial Trustee and the Named Successor
Trustees accept the Voting Trust established hereby subject to the terms and
conditions stated herein.
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SECTION 3
3.1. Definitions. Unless otherwise required by the context, the terms
"Shares," "Trustees," "Beneficiaries" and "Effective Date" shall have the
meanings ascribed to them below:
3.1.(a) The term "Shares" shall mean (1) the shares of AMCE Class B
Stock received by the Initial Trustee as a result of the Merger and as a
result of the transfer, if any, by the Shareholder or SHD after the Merger,
(2) all other shares of the AMCE Common Stock, AMCE Class B Stock, AMCE
Preferred Stock, AMCE Convertible Preferred Stock or any other class of
stock of AMCE created prior or subsequent to this Agreement, which are
transferred to or held by the Trustees under the terms of this Agreement,
and (3) any stock of any other corporation received in exchange for the
stock described in (1) or (2) of this subparagraph, or which is otherwise
transferred to or held by the Trustees under the terms of this Agreement.
However, the term "Shares" shall not include shares released from the
Voting Trust as provided herein. If any shares of stock of any corporation
other than AMCE are held in this Voting Trust, references herein to the
words "AMCE" or "Company" shall include such other corporation with respect
to its shares of stock.
3.1.(b) The term "Trustees" shall mean the Initial Trustee, the Named
Successor Trustees, Additional Trustees, Successor Trustees, and each of
them, and their respective successors in interest.
3.1.(c) The term "Beneficiaries" shall mean collectively the
Shareholder and the Shareholder's successors in interest, and all of the
holders of Voting Trust Certificates issued pursuant to this Agreement.
3.1.(d) The term "Effective Date" shall mean December 12, 1992.
3.2. Initial Transfer of Shares. The Parties acknowledge that the
Shareholder assigned and delivered to the Trustees a certificate or certificates
evidencing 119,500 shares of DI Class A Common Stock (after the gift to Harvard
College described in the Recitals) transferred by the Shareholder, together with
proper and sufficient instruments of transfer duly executed to effect transfer
thereof to the Trustees. The Parties acknowledge that the Trustees, upon receipt
of the shares of the DI Class A Common Stock, issued to the Shareholder a Voting
Trust Certificate evidencing such shares
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of DI Class A Common Stock transferred by the Shareholder. The Parties
acknowledge that upon the receipt of such shares of DI Class A Common Stock by
the Trustees and the issuance of the Voting Trust Certificate by the Trustees,
the Trustees surrendered such shares of DI Class A Common Stock and related
instruments of transfer to DI, which thereupon recorded the transfer on its
books and records and issued to, and in the name of, the Trustees, a certificate
or certificates evidencing the number of such shares of DI Class A Common Stock,
together with instruments of transfer, transferred to the Trustees. The Parties
acknowledge that, pursuant to the Merger, the Trustees tendered a certificate or
certificates evidencing such shares of DI Class A Common Stock pursuant to the
terms and conditions of the Merger Agreement and received 3,841,071 shares of
AMCE Class B Stock. The Parties acknowledge that SHD transferred to the
Shareholder 1,174,586 shares of AMCE Class B Stock he received in the Merger and
the Shareholder in turn transferred said shares to the Trustees of the Voting
Trust. The Parties acknowledge that the Trustees issued to the Shareholder
Voting Trust Certificate Number 3 evidencing the 5,015,657 shares of AMCE Class
B Stock, representing all shares of AMCE Class B Stock received by or for the
benefit of SHD in the Merger, and the Shareholder tendered to the Trustees
Voting Trust Certificate No. 2, which the Trustees canceled.
3.3. Additional Transfers of Shares. Additional transfers of Shares to the
Trustees may be made any time after the Effective Date but no shareholder shall
be obligated to transfer additional Shares except at the times and to the extent
provided herein. Upon any transfer of Shares to the Trustees after the Effective
Date, the Trustees shall accept the transferred Shares and issue Voting Trust
Certificates to the transferors all in the manner hereinabove provided. Voting
Trust Certificates shall be substantially in the form of Exhibit "A" attached to
this Agreement.
SECTION 4
4.1. Initial Trustee. The Initial Trustee shall be the sole trustee of
the Voting Trust until the first to occur of the following events:
4.1.(a) The death of the Initial Trustee;
4.1.(b) The resignation of the Initial Trustee;
4.1.(c) The designation by the Initial Trustee of one or more
Additional Trustees.
4.2. Additional Trustees Appointed by Initial Trustee. During his tenure
hereunder, the Initial Trustee may designate one or more natural persons as
Additional Trustees hereunder ("Additional Trustees") to serve for such terms of
office as he may designate, and may remove, with or without cause, any
Additional Trustee so designated.
4.3. Succession of Named Successor Trustees. Any person who is a Named
Successor Trustee may also be designated as an Additional Trustee, but such
designation shall not affect the rights and duties of the Named Successor
Trustee. The term of office of any Additional Trustee shall end on the date the
Initial Trustee is no longer serving as a result of his death, resignation or
disability. Upon the death, disability or resignation of the Initial Trustee,
the Named Successor Trustees shall become Trustees hereunder and shall continue
to serve until their death, resignation or disability.
4.4. Appointment of Additional Trustee by Named Successor Trustees. After
the death, resignation or disability of the Initial Trustee, during such time as
a Named Successor Trustee is serving
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as Trustee, he or they may, but only by their unanimous agreement if more than
one is serving, designate one or more natural persons as Additional Trustees
hereunder, and establish such terms of office for them as they deem appropriate.
The Named Successor Trustees may remove, with or without cause, any Additional
Trustee designated by them.
4.5. Disability of Trustees. The Initial Trustee and any other Trustee
shall be deemed to have resigned if either of the following should occur:
4.5.(a) Upon any adjudication of his incompetency and the judicial
appointment of a guardian or conservator of either his person or his
estate.
4.5.(b) Upon the receipt by any other Trustee then serving as such,
of a written certificate signed by two licensed, board certified medical
doctors, each of whom certifies that he or she has examined the individual
and has concluded in his or her professional opinion that the individual
has become unable to act rationally and prudently in making decisions
normally required of controlling shareholders of business entities
comparable to the Company, and each of whom further certifies that such
condition of the individual is likely to continue for a substantial or
indefinite period of time.
4.6. Designation of Successor to Named Successor Trustees. In the event
a Named Successor Trustee is not living at the time he would otherwise have
assumed his duties as such, or in the event of his death or resignation while
serving as such, the person designated by him shall become a Successor Trustee
and shall fill the position occupied by said Named Successor Trustee. Such
designated Successor Trustee must be a natural person specifically designated as
a Successor Trustee by reference to this Agreement in the last will of said
Named Successor Trustee or in a written instrument signed and acknowledged by
said Named Successor Trustee and deposited with the other Trustees prior to his
death or resignation. In the event of inconsistent designations, the designation
in the document bearing the last execution date shall control. The term of
office of any Successor Trustee shall be for such period as is designated by the
Named Successor Trustee at the time he designates the Successor Trustee. If no
term of office is designated, then such Successor Trustee shall serve until his
death, resignation or disability. If a Successor Trustee has not been designated
by a deceased or resigned Named Successor Trustee, or if a Successor Trustee
should die, resign or be disabled, a Successor Trustee shall be designated by
the remaining Named Successor Trustee or Trustees by their unanimous consent, or
if there is no Named Successor Trustee then serving, then by the unanimous
consent of any other Trustee or Trustees who are then serving.
4.7. Vacancies. Any vacancy in the office of Trustee not filled as provided
above in this Section 4 shall be filled by the holders of Voting Trust
Certificates representing a majority of the Shares held in the Voting Trust. The
term of office for any successor appointed under this paragraph shall be three
(3) years.
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4.8. Number of Trustees. After the death, resignation or disability of the
Initial Trustee, there shall at all times be at least two (2) Trustees who shall
be entitled to vote. The Trustees shall take such action as may be appropriate
to increase or decrease the number of Trustees, or to fill any vacancy, in order
to provide for a sufficient number of Trustees entitled to vote. In the event of
an equal division of the vote among the Trustees on any matter, the Trustees
shall appoint by their unanimous consent a qualified, disinterested person who
shall cast the deciding vote on the issue in question.
SECTION 5
5.1. Duty to Beneficiaries of Trust. The Trustees shall hold the Shares in
the Voting Trust for the common and mutual benefit of the Beneficiaries, and
their successors in interest, subject to the terms and conditions of this
Agreement.
5.2. Rights of Trustees. Subject to the requirements of Section 6, the
Trustees shall be the sole possessors of the following rights:
5.2.(a) The right to vote the Shares in person or by nominee, agent,
attorney-in-fact or proxy at all meetings of shareholders;
5.2.(b) The right to participate in, consent to, or ratify any
corporate or shareholders' action;
5.2.(c) The right to receive all dividends and distributions in cash,
kind or in any other property; and
5.2.(d) The right to become financially interested in any matter or
transaction to which the Company or any company subsidiary to, controlled
by, or affiliated with the Company may be a party, and the right to
contract with or become financially interested in any company subsidiary
to, controlled by or affiliated with the Company as fully and freely as
though the Trustees were not the Trustees hereunder.
5.3. Duty to Vote Shares. It shall be the duty of the Trustees, and they
shall have full power and authority, and they are hereby fully empowered and
authorized, subject to the requirements of Section 6, to vote the Shares, as in
the judgment of the Trustees or of any majority of them may be for the best
interests of the Beneficiaries while taking account of the interest of the
Company as set forth in Section 5.4, at all meetings of the shareholders of the
Company, in the election of Directors, and upon any and all matters and
questions which may be brought before such meetings, as fully as any shareholder
might do if personally present. Such power shall include the power to change or
adjust the voting characteristics or power of any shares of Company stock,
including the power to consent to or ratify the creation of any class of
non-voting shares of the Company, or any shares of any subsidiary of the Company
distributed in respect of shares of the Company, in order to meet the definition
of a "Permitted Holder" under the terms
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of any note or debenture issued by the Company or any of its subsidiaries or any
other applicable restriction. In the event of an equal division of the vote
among the Trustees on any matter, the Trustees' duty to vote shall be discharged
in the manner set forth in Section 4.8.
5.4. Duty to Exercise Best Judgment in Interest of Company. The Trustees
agree to exercise their best judgment in the interest of the Company to assure
proper, stable, and continuous management of the affairs of the Company, but the
Trustees as such are not responsible for the acts of the Directors and Officers
of the Company whether or not taken pursuant to the vote or consent of the
Trustees or ratified afterward by the Trustees. The Trustees may, in their
discretion, notice and call a meeting of all Beneficiaries to obtain
instructions from the Beneficiaries with respect to voting of the Shares on any
particular question. However, the Trustees shall not be bound to vote the Shares
in accordance with the vote or instructions of the Beneficiaries. The decisions
of the Trustees in the good faith exercise of their independent judgment and
discretion shall be binding on all interested parties and Beneficiaries.
5.5. Division of Trust into Voting Trust Shares on Death of Shareholder. On
the death of SHD, the Trustees shall divide the Voting Trust into separate
Voting Trust Shares for beneficiaries named (hereinafter "Named Beneficiaries")
in the will or any trust agreement of SHD, including the Shareholder, effecting
a testamentary disposition of the Shareholder's Voting Trust Certificates. The
Trustees shall create one Voting Trust Share for each such beneficiary and shall
hold and administer it as a separate Voting Trust under the terms of this
Agreement. It is anticipated at the date of execution of this Agreement that
separate Voting Trust Shares will be created for the various Named Beneficiaries
under SHD's testamentary plan for distribution of Voting Trust Certificates. The
Trustees shall act as Trustees of each Voting Trust Share and shall administer
all Voting Trust Shares according to the fiduciary and other standards set forth
in this Agreement. In the event of any conflict of interest, the Trustees may
continue to act as Trustees of all such Voting Trust Shares without any waiver
or consent required from the holders of Voting Trust Certificates and shall not
be liable for any advantage or disadvantage conferred or incurred with respect
to any of said holders so long as the Trustees exercise their good faith
judgment and adhere to the objectives of this Agreement and the standards for
fiduciary conduct set forth herein. Nothing contained in this paragraph shall
preclude the Trustees from appointing Additional Trustees who shall act as
Special Trustees for a Voting Trust Share to serve on a temporary basis in their
place and stead to vote the shares or otherwise exercise, in their sole and
absolute discretion and without the control or influence of any other Trustee,
any power of the Trustees under this Agreement with respect to any particular
issue or question that the Trustees in their sole discretion deem necessary or
advisable.
SECTION 6
6.1. Voting Rights of Initial Trustee. All voting rights with respect to
the Shares shall be vested in and exercised by the Initial Trustee until the
death, disability or resignation of the Initial Trustee. No Named Successor
Trustee nor any Additional Trustee designated by the Initial Trustee shall have
any voting rights until the death, disability or resignation of the Initial
Trustee,
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except as may be delegated by the Initial Trustee by proxy, power of attorney
or other valid written delegation.
6.2. Voting Rights of Other Trustees. After the Initial Trustee is no
longer serving as a result of his death, disability or resignation, all voting
rights with respect to the Shares shall be vested in and exercised by the Named
Successor Trustees and any Additional or Successor Trustees by majority vote.
6.3. Call of Trustee Meetings. Any Trustee who is entitled to vote may call
a meeting of the Trustees at any time upon written notice delivered or mailed to
the other Trustees then serving as such not less than ten (10) days prior to the
date of the meeting.
SECTION 7
7.1. Distribution of Dividends. The Trustees shall distribute to each
holder of a Voting Trust Certificate or Certificates cash payments equal to the
amount of cash dividends received by the Trustees on account of the Shares for
which such Voting Trust Certificates were issued, less any reasonable expenses
incurred in the administration of this trust.
7.2. Record Date. The Trustees may fix a date not exceeding twenty (20)
days preceding any date for the payment or distribution of dividends, or for the
distribution of assets or rights, as a record date for the determination of the
Voting Trust Certificate holders entitled to receive such payment or
distribution, and the holders of Voting Trust Certificates of record on such
date shall be exclusively entitled to participate in such payment or
distribution. In any case in which the Trustees shall fail to fix such a record
date, the date three (3) days prior to the date of payment or distribution of
dividends or the distribution of assets or rights shall constitute the record
date for the determination of the holders of Voting Trust Certificates entitled
to receive such payment or distribution.
7.3. Distributions in Additional Shares of Company Stock. If the Trustees
receive, as a dividend or distribution on account of Shares, any additional
Shares of the stock of the Company or any subsidiary of the Company, the
Trustees shall hold such additional Shares in trust subject to the terms and
conditions of this Agreement. Any such dividend or distribution of Shares shall
be held for the benefit of those Beneficiaries who are the beneficial owners of
the Shares on account of which the particular stock dividend or distribution was
made, and the Trustees shall issue to those Beneficiaries additional Voting
Trust Certificates (substantially in the form of Exhibit "A") evidencing
retention by the Trustees of the Shares received.
7.4. Other Distributions. If the Trustees receive any monies (other than
cash dividends) or any property (other than Shares of the Company or any
subsidiary of the Company or any other instrument granting voting rights) which
constitute a distribution by the Company to its Stockholders, the Trustees shall
distribute such money or property to the holders of Voting Trust
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Certificates representing the Shares on account of which such money or property
was distributed, less any reasonable expenses incurred in the administration of
the trust.
7.5. Direct Distribution to Trust Beneficiaries. The Trustees in their
discretion may direct the Company to pay directly to the Beneficiaries, as their
interests may appear, any dividend or distribution payable by the Company to the
Trustees in cash or other property, excluding, however, dividends or
distributions in the form of shares of Company stock, or the stock of any
subsidiary of the Company, or any other instrument granting voting rights. The
Company shall be entitled to rely upon any such direction and shall comply
therewith, if made in writing, signed by the Trustees and delivered to the
Secretary of the Company, until and unless such direction is revoked by the
Trustees in the same manner.
SECTION 8
8.1. Transfers of Shares by Beneficiaries. If a Beneficiary desires to
transfer Shares which are represented by Voting Trust Certificates held by such
Beneficiary, the Beneficiary shall be entitled to effect such transfer only if
the Trustees approve such transfer after written request by the Beneficiary. The
Trustees may approve or disapprove a proposed transfer in the sole and absolute
discretion of the Trustees. The transfer of shares shall be subject to the
Voting Trust. Any decisions by the Trustees under this paragraph shall be final
and binding on all parties. If the Trustees consent to a transfer, the Trustees
shall take such steps as may be necessary, including the transfer of Shares from
the Voting Trust, the acceptance of Shares from a transferee, and the
acceptance, cancellation and reissuance of Voting Trust Certificates, to effect
transfers of Shares as contemplated by this Section 8. Voting Trust Certificates
shall not be transferable as such.
8.2. Restrictions on Transfer by Trustees. The Trustees shall have no power
or authority to sell, encumber or transfer Shares except as specifically
authorized under this Agreement.
SECTION 9
9.1. Issuance of Shares by Company. All shares of capital stock, whether
voting or non-voting and regardless of class, issued by the Company with respect
to the AMCE Class B Stock held in the Voting Trust after the Effective Date,
including, without limitation, shares of treasury stock or of authorized but
unissued stock issued by reason of subscription, purchase, exercise of any
option, dividend, stock split or distribution, acquisition of assets by the
Company, merger, reorganization or similar transaction, shall be issued to and
held in the Voting Trust.
9.2. Termination of Trust on Transfer of Shares to Company. The Voting
Trust shall terminate with respect to Shares transferred to or redeemed by the
Company, whether such Shares are canceled by the Company or held by the Company
as treasury stock; provided, however, that the reissuance of such Shares shall
be subject to the conditions of Paragraph 9.1.
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9.3. Release of Shares from Voting Trust. While Stanley H. Durwood is
serving as Initial Trustee, he, or the trustees of any trust holding Voting
Trust Certificates for his benefit, may from time to time and without
restriction withdraw from the Voting Trust any of the Shares. Other Shares may
be released from the Voting Trust by the agreement of the Trustees then having
voting rights with the concurrence of the holders of Voting Trust Certificates
representing eighty percent (80%) of the Shares owned by each separate Voting
Trust Share for a Named Beneficiary. The Voting Trust shall terminate with
respect to Shares so released unless and until such Shares are again transferred
to the Voting Trust. Upon the release of Shares, the holder of Voting Trust
Certificates representing the released Shares shall surrender the same to the
Trustees for cancellation, and upon receipt and cancellation thereof, the
Trustees shall transfer the released Shares to such holder.
9.4. Amendment of Voting Trust. This Agreement may be amended at any time
by an instrument in writing executed by the Trustees then having voting rights
and by the holders of Voting Trust Certificates representing eighty percent
(80%) of the Shares.
9.5. Termination and Extension of Voting Trust By Trustees and Shareholder.
The Voting Trust or any Voting Trust Share for a Named Beneficiary may be
terminated by the agreement of the Trustees then having voting rights with the
concurrence of the holders of Voting Trust Certificates representing eighty
percent (80%) of the Shares of the Voting Trust or the Voting Trust Share, as
the case may be. The Voting Trust may be extended for any period or periods,
including additional periods of time after the expiration of earlier periods,
including in perpetuity if permitted by law, by the written agreement of the
Trustees then having voting rights and without the concurrence of holders of
Voting Trust Certificates. Shareholder may terminate the Voting Trust during
SHD's lifetime by notice in writing delivered to any other Trustees and holders
of Voting Trust Certificates.
9.6. Automatic Termination of Voting Trust. Unless sooner terminated or
extended pursuant to paragraph 9.5, the Voting Trust shall continue in full
force and effect for the period ending (a) five (5) years after the last to die
of Stanley H. Durwood and all of his descendants of any degree who were living
on the Effective Date, or (b) December 31, 2030, whichever period ends first,
and then shall terminate.
9.7. Exchange of Certificates for Stock on Termination. Upon termination of
the Voting Trust, the holder of each Voting Trust Certificate then outstanding
shall surrender the same to the Trustees for cancellation, in exchange for which
the Trustees shall transfer to each such holder the number of Shares represented
by the surrendered Voting Trust Certificate.
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SECTION 10
10.1. Trustees May Serve as Company Officers or Directors. No provision of
this Agreement shall preclude the Trustees from serving as officers or
directors, or both, of the Company, or of any company affiliated with or which
is a subsidiary of the Company.
10.2. Trustee Compensation and Expenses. The Trustees shall be entitled to
reasonable compensation for their services hereunder and to reimbursement for
all costs and expenses reasonably incurred by them in the performance of their
duties. The Trustees shall be entitled to employ or retain professional or
business advisers of their own selection to advise or assist them with respect
to the performance of their duties.
10.3. Liability of Trustees. The Trustees shall exercise their best
judgment in the performance of their duties and the exercise of their powers,
all in the best interests of the Beneficiaries, while taking account of the
interests of the Company, as set forth in Section 5.4. No Trustee shall be
liable in his individual capacity for any error of judgment, or mistake of law
or fact, or act or failure to act, except such as may be attributable to his
willful misconduct or gross negligence. The Trustees shall not be liable for any
failure to diversify the assets of the Voting Trust or any Voting Trust Shares
nor shall they be liable for any failure to sell any Shares of the Company if an
offer is made to purchase such Shares even if such offer would be acceptable to
the holders of Voting Trust Certificates, if in the exercise of their sole and
absolute discretion and good faith judgment they believe the retention of such
Shares is justified. If the Trustees become parties to litigation involving the
Voting Trust in either their individual or their fiduciary capacities, the
Trustees shall be entitled to employ attorneys of their own selection and to be
reimbursed by the Voting Trust for all reasonable costs, fees, and expenses
incurred in such litigation unless, by reason of such litigation, damages are
assessed against them in their individual capacities by reason of their willful
misconduct or gross negligence.
10.4. Severability. In the event any provision of this Agreement shall be
illegal or invalid for any reason, the remaining provisions shall be binding
upon all Parties. Illegality or invalidity of this Agreement or any part
thereof, as to any Party or Parties but not others, shall be limited to such
Party or Parties, and this Agreement shall continue to be binding upon all other
Parties.
10.5. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware. Without limiting the
generality of the foregoing, the Parties intend for this Agreement to comply
with the provisions of Section 218 of the Delaware General Corporation Law.
10.6. Binding Effect. This Agreement shall bind the Parties hereto, and all
holders of Voting Trust Certificates issued pursuant to this Agreement, and
their respective heirs, executors, administrators, successors and assigns. In
the case of any trust, partnership or corporation which is or becomes a party to
this Agreement, this Agreement shall bind the trustees of the trust and their
successor trustees, the beneficiaries of such trust and their successors in
interest, and all
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distributees of such trust, the partners of such partnership and their
successors and assigns, and the officers, directors, shareholders and members of
such corporation, their successors and assigns, and the successor or successors
of such corporations by virtue of any merger, liquidation, consolidation or
other reorganization.
10.7. Headings. Paragraph headings shall not be considered to be a part of
this Agreement and shall not be used to alter, change, or interpret the meaning
of the language used in said paragraphs.
ITEM III
In all other respects, the provisions of the Voting Trust Agreement are
hereby expressly ratified and confirmed, except as they may be inconsistent with
the provisions of this Agreement.
IN WITNESS WHEREOF, this Amended and Restated Voting Trust Agreement has
been executed in several counterparts as of the day and year first above
written.
/s/ Stanley H. Durwood
-------------------------------------------
Stanley H. Durwood, individually and as
Initial Trustee of the Voting Trust and
Trustee of the Revocable Trust
/s/ Raymond F. Beagle, Jr.
-------------------------------------------
Raymond F. Beagle, Jr.,
Named Successor Trustee of the Voting
Trust
/s/ Charles J. Egan, Jr.
-------------------------------------------
Charles J. Egan, Jr.,
Named Successor Trustee of the Voting
Trust
STATE OF Missouri )
) ss:
COUNTY OF Jackson_ )
On this 12th day of August, 1997, at my office in said County and State,
before me, the undersigned, a notary public, personally appeared STANLEY H.
DURWOOD, to me personally known and known to me to be the same person described
in and who executed the foregoing instrument, and acknowledged that he executed
the same as his free act and deed.
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above written.
/s/ Ellen E. Zellmer
Notary Public
My Commission Expires:
August 5, 1999
STATE OF Missouri )
) ss:
COUNTY OF Jackson )
On this 13 day of August, 1997, at my office in said County and State,
before me, the undersigned, a notary public, personally appeared RAYMOND F.
BEAGLE, JR., to me personally known and known to me to be the same 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 the day and year last above written.
/s/ Ellen E. Zellmer
Notary Public
My Commission Expires:
August 5, 1999
STATE OF Missouri )
) ss:
COUNTY OF Jackson )
On this 13th day of August, 1997, at my office in said County and State,
before me, the undersigned, a notary public, personally appeared CHARLES J.
EGAN, JR., to me personally known and known to me to be the same 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 the day and year last above written.
/s/ Shirley D. Fronkier
Notary Public
My Commission Expires:
July 17, 1998
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