Securities and Exchange Commission
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities Act of 1933
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 Number)
106 West 14th Street, Kansas City, Missouri 64105
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(Address of Principal Executive Offices) (Zip Code)
AMC Entertainment Inc. 1999 Stock Option and Incentive Plan
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(Full Title of Plan)
Peter C. Brown
106 West 14th Street
P.O Box 219615
Kansas City, Missouri 64121-9615 (816) 221-4000
(Name, Address and Telephone Number of Agent for Service)
Copies to:
Raymond F. Beagle, Jr.
Lathrop & Gage L.C.
2345 Grand Boulevard, Suite 2800
Kansas City, Missouri 64108
(816) 460-5823
Calculation of Registration Fee
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount
to be to be Offering Price Aggregate Registration
Registered Registered Per Share(1) Offering Price(1) Fee
- ---------- ---------- ------------ ----------------- ---
Common Stock
66 2/3% par 2,100,000 shares $9.40625 $19,753,125 $5,215
value
1 The maximum offering price is estimated to be $9.40625 per share pursuant to
Rule 457(h)(1) and 457(c) solely for the purpose of calculating the registration
fee, which amount represents the average of the high and low prices of the
Registrant's common stock reported on the AMEX composite tape on December 7,
1999.
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Part II
Information Required In The Registration Statement
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities and
Exchange Commission (the" Commission") are incorporated herein by
reference and hereby made a part hereof:
(a) The Registrant's annual report on Form 10-K for the fiscal year
ended April 1, 1999.
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since April 1, 1999.
(c) The description of the Registrant's Common Stock contained in
Registrant's Form 8-A filed August 18, 1983 (File no. 0-12429).
(d) All documents hereafter filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
prior to the filing of a post-effective amendment that indicates all
of the securities offered hereby have been sold or that deregisters
all securities then remaining unsold.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the shares of Common Stock offered
hereby have been passed upon for the Company by Lathrop & Gage L.C.,
Kansas City, Missouri. Raymond F. Beagle, Jr., a member of Lathrop &
Gage L.C., is general counsel of the Registrant and a voting trustee of
the Durwood Voting Trust, which is the record holder of all the
Registrant's outstanding Class B stock.
Item 6. Indemnification of Directors and Officers.
AMC Entertainment Inc. ("AMCE") is incorporated in Delaware. Under
Section 145 of the Delaware General Corporation Law, a corporation has
the power, under specified circumstances, to indemnify its directors,
officers, employees and agents in connection with actions, suits or
proceedings brought against them by a third party or in the right of the
corporation, by reason of the fact that they were or are such directors,
officers, employees or agents, against expenses incurred in any such
action, suit, or proceeding. AMCE's Certificate of Incorporation
requires indemnification of directors and officers to the full extent
permitted by the Delaware General Corporation Law and provides that, in
any action by a claimant, AMCE shall bear the burden of proof that the
claimant is not entitled to indemnification.
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Section 102(b)(7) of the Delaware General Corporation Law provides that
a certificate of incorporation may contain a provision eliminating or
limiting the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director provided that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 (relating to liability
for unauthorized acquisitions or redemptions of, or dividends on,
capital stock) of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal
benefit. The Certificate of Incorporation of AMCE contains the
provisions permitted by Section 102(b)(7) of the Delaware General
Corporation Law.
Section 3.6 of AMCE's 1999 Stock Option and Incentive Plan (the "Plan")
provides that service on AMCE's Compensation Committee constitutes
service as a director of AMCE so that members of the Compensation
Committee, who are charged with the administration of the Plan, are
entitled to indemnification and reimbursement as directors pursuant to
AMCE's Certificate of Incorporation, Bylaws or any agreements between
AMCE and its directors providing for indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 - Amended and Restated Certificate of Incorporation of AMC
Entertainment Inc. (1)
4.2 - Bylaws of AMC Entertainment Inc. (2)
4.3 - AMC Entertainment Inc. 1999 Stock Option and Incentive Plan, as
amended.
5.1 - Opinion of Lathrop & Gage L.C. as to the validity of the stock
being issued.
23.1 - Consent of Lathrop & Gage L.C. to the use of their opinion filed
as Exhibit 5.1 (included in Exhibit 5.1).
23.2 - Consent of PricewaterhouseCoopers, LLP.
24.1 - Power of Attorney (included elsewhere in the Registration
Statement).
(1) Previously filed as Exhibit 3.1 to Registrant's Form 10-Q
(File no. 1-8747) for the quarter ended January 1, 1998 and
incorporated herein by reference.
(2) Previously filed as Exhibit 3.3 to Registrant's Form 10-Q
(File no. 0-12429) for the quarter ended December 26, 1996
and incorporated herein by reference.
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Item 9. Undertakings.
1. Rule 415 Offering.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs 1.(a)(i) and 1.(a)(ii)
do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained
in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
2. Filings Incorporating Subsequent Exchange Act Documents by
Reference.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
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3. Indemnification Matters.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it
is against public policy as expressed in the Securities Act of
1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto authorized,
in Kansas City, Missouri on this 10th day of December, 1999.
AMC ENTERTAINMENT INC.
By /s/ Peter C. Brown
Peter C. Brown
Chairman of the Board, Chief Executive
Officer & President
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on the dates indicated below. By so signing, each person whose signature appears
below this Registration Statement on Form S-8 in his or her capacity as a
director or officer, or both, as the case may be, of the Registrant does hereby
severally constitute and appoint Peter C. Brown and Craig R. Ramsey, and each of
them, with full power to act without the other, his or her true and lawful
attorney-in-fact and agent, with the full power of substitution and
resubstitution, to sign for him or her and in his or her name, place and stead
in any and all capacities indicated below, any and all pre-effective and
post-effective amendments to this Registration Statement on Form S-8, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary fully to all
intents and purposes as he or she might or could do in person, thereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his or her substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
Date: December 10, 1999 /s/ Peter C. Brown
-----------------------------------------
Peter C. Brown, Chairman of the Board,
Chairman of the Board, President,
Chief Executive Officer and Director
Date: December 10, 1999 /s/ Charles J. Egan, Jr.
-----------------------------------------
Charles J. Egan, Jr., Director
Date: December 10, 1999 /s/ W. Thomas Grant II
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W. Thomas Grant II, Director
Date: December 10, 1999
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Charles S. Paul, Director
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Date: December 10 , 1999 /s/ Paul E. Vardeman
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Paul E. Vardeman, Director
Date: December 10, 1999 /s/ Craig R. Ramsey
-----------------------------------------
Craig R. Ramsey, Senior Vice President,
Finance and Chief Accounting Officer
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Exhibit 4.3
AMC ENTERTAINMENT INC. 1999 STOCK OPTION AND INCENTIVE PLAN
(As Amended)
1. PURPOSE
The AMC Entertainment Inc. 1999 Stock Option and Incentive Plan is intended
to incorporate stock-based and results-oriented awards into the ongoing
compensation packages of executives, managers and other key employees 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 in 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 a Permitted Holder) shall, as a result of a tender or exchange offer, open
market purchases, privately negotiated purchases or otherwise, have acquired
voting power (within the meaning of Rule 13d-3 under the Exchange Act) with
respect to 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 (such determination of combined voting power to
recognize (if then applicable) that the Company's Class B Stock has ten votes
per share and the Company's Common Stock has one vote per share).
2.5 "Code" means the Internal Revenue Code of 1986 as amended from time to
time.
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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 Awards under 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 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 "Director" means a member of the Board.
2.10 "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
2.11 "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 New York 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.
2.12 "Grantee" means a person to whom an Award is made.
2.13 "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.
2.14 "Non-Qualified Stock Option" or "NQSO" means an Option awarded under
the Plan which by its terms and conditions is not an ISO.
2.15 "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.
2.16 "Plan" means the Company's 1999 Stock Option and Incentive Plan.
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2.17 "Performance Unit" means an Award payable only in cash and valued by
reference to designated criteria (other than Shares) established by the
Committee.
2.18 "Permitted Holder" means (i) the Durwood Voting Trust established
under the 1992 Durwood, Inc. Voting Trust agreement dated December 12, 1992, as
amended and restated on August 12, 1997 (such trust, together with any other
voting trust created pursuant to the terms of such agreement, being referred to
herein as the "Voting Trust"), (ii) any trustee of the Voting Trust appointed in
accordance with the terms of such trust, and (iii) 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, provided, that
if any lender or other person shall foreclose on or otherwise realize upon or
exercise any remedy with respect to any security interest in or lien on any
securities of the Company held by any person listed in this clause (iii), then
such securities shall no longer be deemed to be held by a Permitted Holder.
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 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
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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.
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; notwithstanding any provision of this Plan to the contrary, the
Committee shall not have the authority to reprice, replace or regrant to a
Grantee through cancellation any Option which has been awarded to such Grantee.
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
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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 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 of the Company and its
Subsidiaries who are corporate executives or senior managers, including
executive officers of the Company and its Subsidiaries, other managers,
including theatre managers, and other key employees. 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 2,100,000 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 750,000
Shares, Stock Awards entitling the Grantee to receive more than 90,000 Shares or
cash awards aggregating more than $2.5 million under Performance Units. During
any 12 month period no Grantee may receive Options to acquire more than 250,000
Shares or Performance Units for cash awards aggregating more than $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.
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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.
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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
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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, subsidiary or strategic business unit Adjusted EBITDA (operating income
plus depreciation and amortization plus preopening expense plus theatre closure
expense); (ii) Company, subsidiary or strategic business unit Unlevered Net
Income (Adjusted EBITDA less depreciation multiplied by one minus the applicable
tax rate) or net income; (iii) diluted earnings per share; (iv) public market
price of the Company's Common Stock; (v) private market value of shares of the
Company's Common Stock on a diluted basis, based on a constant multiple of
Adjusted EBITDA plus cash, cash equivalents and investments and investments in
other long-term assets, less corporate borrowings, capitalized and financing
lease obligations and the carrying value of minority interests in other
long-term liabilities; (vi) return to stockholders, measured by increases in the
market value of an investment in shares of the Company's Common Stock, assuming
reinvestment of dividends received; and (vii) Company, subsidiary or strategic
business unit Return on Invested Capital (Unlevered Net Income divided by
Invested Capital as defined below), return on net assets or return on equity.
Invested Capital is defined as the sum of stockholders' equity, corporate
borrowings and capital and financing lease obligations, less cash and
equivalents. The Committee may, in its discretion, determine whether an award
will be paid under any one or more of the 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 strategic business unit or other operations based unit or span of a
participant's responsibility; (ii) the performance of a broad based group of
stocks such as, but not limited to, the Standard & Poor's 500 Index or the
Russell 2000; 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
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.
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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 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), 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.
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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 in Control Event occurs or if termination results from such Change in
Control Event, (a) any restrictions on 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
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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 which
have been held by the Grantee for at least six (6) months and 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 a 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 December 2, 1999, 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 annual meeting of stockholders held in 2002 or December
31, 2002, 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
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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,
shall require the Grantee's consent. It shall be conclusively presumed that any
adjustment for changes in capitalization and other changes in the corporate
structure or shares of the Company 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 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.
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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 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, 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 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
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
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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 elect to tender
back to the Company Shares received pursuant to (a) or (b), having a Fair Market
Value sufficient to satisfy the Company's minimum statutory federal, state,
local and other tax withholding obligations associated with the transaction. Any
such election shall be 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 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, 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
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of his rights under the Plan, except as to Options already exercised and 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 Delaware.
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.
15
Exhibit 5.1
December 10, 1999
AMC Entertainment Inc.
106 West 14th Street, Suite 1700
Kansas City, Missouri 64105
Re: 1999 Stock Option and Incentive Plan
Ladies and Gentlemen:
We have acted as counsel for AMC Entertainment Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing of a registration
statement on Form S-8 (the "Registration Statement") for the registration under
the Securities Act of 1933, as amended, of 2,100,000 shares of the common stock,
par value 66 2/3 per share (the "Shares"), of the Company, which shares are to
be issued under the Company's 1999 Stock Option and Incentive Plan (the "Plan").
In connection therewith we have examined:
(i) Resolutions approving the Plan and authorizing the preparation and
filing of the Registration Statement, and amendments thereto, and
certain related actions;
(ii) The Registration Statement;
(iii) The Plan;
(iv) The Amended and Restated Certificate of Incorporation of the Company;
and
(v) The Bylaws of the Company.
We have also made such other factual and legal investigations as we deemed
necessary or appropriate in order to render the opinion hereafter expressed. In
such examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
original documents submitted to us as certified copies or photocopies.
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Based solely on the foregoing, we are of the opinion that:
1. The Company has authority to issue options and Shares upon the exercise
of said options and to issue Shares pursuant to Performance and Restricted Stock
Awards pursuant to the Plan; and
2. The Shares are duly authorized, and, upon receipt by the Company of
adequate consideration therefor pursuant to the Plan and delivery by the
Company, said Shares will be validly issued, fully paid and nonassessable;
3. The Plan is not subject to the Employment Retirement Income Securities
Act of 1974.
We express no opinion as to the laws of any jurisdiction other than the
General Corporation Law of the State of Delaware. The opinion set forth in this
letter is effective as of the date hereof. No expansion of our opinion may be
made by implication or otherwise. We express no opinion other than as herein
expressly set forth. We do not undertake to advise you with respect to any
manner within the scope of this letter that comes to our attention after the
date of this letter and disclaim any responsibility to advise you of future
changes of law or fact which may affect the above opinion. We hereby consent to
all references to the undersigned in the Registration Statement and the
Prospectus contained therein, and in all amendments thereto, and to the filing
of this opinion by the Company as an exhibit to said Registration Statement.
Very truly yours,
/s/ Lathrop & Gage L.C.
LATHROP & GAGE L.C.
2
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of
AMC Entertainment Inc.
Kansas City, Missouri
We hereby consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated May 7, 1999 relating to the financial
statements which appear in AMC Entertainment Inc.'s Annual Report on Form 10-K
for the year ended April 1, 1999.
/s/ PricewaterhouseCoopers LLP
Kansas City, Missouri
December 10, 1999
