Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a 169 828K
Business-Combination Transaction
2: EX-1.1 Purchase Agreement 39 129K
3: EX-2.1 Asset Purchase Agreement 28 115K
4: EX-2.2 Asset Purchase Agreement 65 262K
5: EX-2.3 Property Purchase Agreement 57 226K
6: EX-3.1 Certificate of Incorporation 11 37K
7: EX-3.2 By-Laws of Silver Cinemas International, Inc. 41 86K
8: EX-3.3 Certificate of Incorporation 2 12K
9: EX-3.4 By-Laws of Silver Cinemas, Inc. 40 87K
10: EX-3.5 Certificate of Incorporation 3 17K
11: EX-3.6 By-Laws of Sci Acquisition Corp. 40 85K
12: EX-3.7 Certificate of Incorporation 2 12K
13: EX-3.8 By-Laws of Landmark Theatre Corp. 39 86K
14: EX-4.1 Indenture 151 489K
15: EX-4.2 A/B Exchange Registration Rights Agreement 22 95K
16: EX-5.1 Opinion of Latham & Watkins 3 17K
17: EX-10.1 Stockholders' Agreement 21 69K
18: EX-10.2 Employment Agreement - Bert Manzari 20 75K
19: EX-10.3 Employment Agreement - Paul Richardson 18 66K
20: EX-12.1 Computation of Ratio of Earnings 3 20K
21: EX-21.1 Subsidiaries of Silver Cinemas Int'L, Inc. 1 9K
22: EX-23.2 Consent of Deloitte & Touche LLP 1 11K
23: EX-23.3 Consent of Kpmg Peat Marwick LLP 1 10K
24: EX-23.4 Consent of Coopers & Lybrand LLP 1 11K
25: EX-25.1 Form T-1 5 22K
28: EX-27.1 ƒ Financial Data Schedule 2± 14K
26: EX-99.1 Form of Letter of Transmittal 17 74K
27: EX-99.2 Forms of Notices of Guaranteed Delivery 4 21K
EXHIBIT 3.1
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
ENCORE ENTERTAINMENT, INC.
Encore Entertainment, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
(the "Corporation") DOES HEREBY CERTIFY:
FIRST: That the Restated Certificate of Incorporation of the
Corporation is hereby amended by striking out Article "FIRST" thereof and by
substituting in lieu of said Article the following new Article:
"FIRST: The name of the corporation is Silver Cinemas
International, Inc. (hereinafter called the
"Corporation")."
SECOND: The amendment of the Restated Certificate of
Incorporation herein certified has been duly adopted in accordance with the
provisions of Sections 228 and 242 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, said Corporation has caused this
certificate to be signed by Steven L. Holmes, its Chief Executive
Officer, this 11th day of October, 1996.
-----------------------------
Steven L. Holmes
Chief Executive Officer
RESTATED CERTIFICATE OF INCORPORATION
OF
ENCORE ENTERTAINMENT, INC.
It is hereby certified that:
1. The present name of the corporation (hereinafter called the
"Corporation") is Encore Entertainment, Inc., which is the name for which an
amendment to the certificate of incorporation was filed on May 15, 1996. The
name under which the Corporation was originally incorporated was Celebration
Cinemas, Inc. and the date of filing of the original certificate of
incorporation of the Corporation with the Secretary of State of the State of
Delaware is May 10, 1996.
2. The Corporation has not received any payment for any of its stock.
3. The certificate of incorporation and the amendment to the certificate
of incorporation of the Corporation (the "Certificate of Incorporation") are
hereby amended and restated. The amendment and the restatement herein certified
have been duly adopted by the sole incorporator in the manner and by the vote
prescribed by Section 241 and Section 245 of the General Corporation Law of the
State of Delaware, no directors having been named in the Certificate of
Incorporation and no directors having been elected.
4. The Certificate of Incorporation of the Corporation, as amended and
restated herein, shall at the effective time of this Restated Certificate of
Incorporation, read as follows:
FIRST: The name of the corporation is Encore Entertainment, Inc.
(hereinafter called the "Corporation").
SECOND: The address, including street, number, city, county and
zip code, of the registered office of the Corporation in the State of Delaware
is 1013 Centre Road, City of Wilmington, County of New Castle; and the name of
the registered agent of the Corporation in the State of Delaware at such address
is The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock which
the Corporation shall have authority to issue is Seven Hundred Thousand
(700,000), consisting of Two Hundred Thousand (200,000) shares of Common Stock,
par value $.01 per share, and Five Hundred Thousand (500,000) shares of
Preferred Stock, par value $.01 per share.
The Preferred Stock may be divided into such number of series as
the Board of Directors may determine. Other than with respect to the Series A
Preferred Stock referenced below, the Board of Directors is authorized to
determine and alter the rights, preferences, privileges and restrictions
(including without limitation voting rights) granted to and imposed upon the
Preferred Stock or any series thereof with respect to any wholly unissued class
or series of Preferred Stock, and to fix the number of shares of any series of
Preferred Stock and the designation of any such series of Preferred Stock. The
Board of Directors, within the limits and restrictions stated in any resolution
or resolutions of the Board of Directors originally fixing the number of shares
constituting any series, may increase or decrease (but not below the number of
any series then outstanding) the number of shares of any series subsequent to
the issue of shares of that series.
1. Designation. A series of the Preferred Stock of the
Corporation is hereby designated as Series A Preferred Stock (hereinafter called
the "Series A Preferred Stock") consisting initially of Four Hundred Thousand
(400,000) shares. Shares of the Series A Preferred Stock shall rank prior to the
Corporation's Common Stock, par value $.01 per share, with respect to the
payment of dividends and upon liquidation, dissolution, winding-up or otherwise.
Unless specifically designated as junior to the Series A Preferred Stock with
respect to the payment of dividends or upon liquidation, dissolution, winding-up
or otherwise, all other series of Preferred Stock and other classes of preferred
stock of the Corporation shall rank on parity with the Series A Preferred Stock
with respect thereto.
2. Dividends.
(a) Each holder of shares of Series A Preferred Stock shall
be entitled to receive dividends on each such share at the rate of six percent
(6%) per annum (computed on the basis of $100.00 per share), when, as and if
declared by the Board of Directors of the Corporation, out of funds legally
available for the payment of dividends, in respect of the period from and
including the date of the original issuance of each such share of Series A
Preferred Stock with respect to each such share to and
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including June 30, 1996 (the "Initial Dividend Period"), and for each quarterly
dividend period thereafter (a "Quarterly Dividend Period"), which Quarterly
Dividend Periods shall Commence on July 1, October 1, January 1, and April 1 in
each year and shall end on and include the day immediately preceding the first
day of the next Quarterly Dividend Period. Dividends on the shares of Series A
Preferred Stock shall be payable on June 30, September 30, December 31, and
March 31 of each year (a "Dividend Payment Date"), commencing June 30, 1996.
Each such dividend shall be paid to the holders of record of the Series A
Preferred Stock as they shall appear on the stock register of the Corporation on
such record date, not exceeding 45 days nor less than 10 days preceding such
Dividend Payment Date, as shall be fixed by the Board of Directors of the
Corporation or a duly authorized committee thereof.
If, on any Dividend Payment Date, the holders of the Series A
Preferred Stock shall not have received the full dividends provided for in this
Section 2 in cash then such dividends shall cumulate, whether or not earned or
declared, with additional dividends thereon, compounded quarterly, at the
dividend rate of six percent (6%) per annum, for each succeeding full Quarterly
Dividend Period during which such dividends shall remain unpaid.
(b) The amount of any dividends accrued on any share of the
Series A Preferred Stock on any Dividend Payment Date shall be deemed to be the
amount of any unpaid dividends accumulated thereon, to and including such
Dividend Payment Date, whether or not earned or declared. The amount of
dividends accrued on any share of the Series A Preferred Stock on any dated
other then a Dividend Payment Date shall be deemed to be the sum of (i) the
amount of any unpaid dividends accumulated, thereon to and including the last
preceding Dividend Payment Date, whether or not earned or declared, (ii) an
amount determined by multiplying (a) $100.00 by (b) the result (the
"Multiplier") of multiplying one and one-half percent (1.5%) per annum by a
fraction, the numerator of which shall be the number of days from the last
preceding Dividend Payment Date, to and including the date on which such
calculation is made, and the denominator of which shall be the full number of
days in such Quarterly Dividend Period, and (iii) an amount determined by
multiplying the amount set forth in clause (i) above by the Multiplier.
(c) Declaration Prior to Redemption or Liquidation. Immediately
prior to authorizing or making any distribution in redemption or liquidation
with respect to the Series A Preferred Stock (other than a purchase or
acquisition of Series A Preferred Stock pursuant to a purchase or exchange offer
3
made on the same terms to holders of all outstanding Series A Preferred Stock),
the Board of Directors shall, to the extent of any funds legally available
therefor, declare a dividend in cash on the Series A Preferred Stock payable on
the distribution date in the amount equal to any accrued and unpaid dividends on
the Series A Preferred Stock as of such date.
3. Redemption.
(a) Optional Redemption. The Series A Preferred Stock may be
redeemed, in whole or in part, at any time at the election of the Corporation by
resolution of its Board of Directors, on notice as set forth in Section 3(c),
below, at the redemption price of $100.00 per share of Series A Preferred Stock,
plus accrued and unpaid dividends to the redemption date (the "Redemption
Price").
In the event that any rate less than all of the Series A
Preferred Stock outstanding is to be redeemed, the shares to be redeemed will be
selected by lot or pro rata, except that if the redemption is pro rata, the
Corporation may redeem all shares of Series A Preferred Stock held by all
holders of 100 or fewer shares as may be specified by the Corporation.
Notwithstanding anything to the contrary, the Corporation may not redeem less
than all of the Series A Preferred Stock outstanding unless all accrued and
unpaid dividends have been paid on all then outstanding shares of Series A
Preferred Stock.
(b) Notice of Redemption. Notice of any redemption pursuant to
this Section 3 shall be mailed, postage prepaid, at least 15 days but not more
than 60 days prior to said redemption date to each holder of record of the
Series A Preferred Stock to be redeemed at its address as the same shall appear
on the stock register of the Corporation. Each such notice shall state: (i) the
date fixed for such redemption, (ii) the place or places where certificates for
such shares of Series A Preferred Stock are to be surrendered for payment, (iii)
the Redemption Price, and (iv) that unless the Corporation defaults in making
the redemption payment, dividends on the shares of Series A Preferred Stock
called for redemption shall cease to accrue on and after the Date of Redemption.
If less than all the shares of the Series A Preferred Stock owned by such holder
are then to be redeemed, such notice shall also specify the number of shares
thereof which are to be redeemed and the number or the certificates representing
such shares.
If such notice of redemption shall have been so mailed and if
prior to the date of redemption specified in such notice all said funds
necessary for such redemption shall have
4
been irrevocably deposited in trust, for the account of the holders of the
shares of the Series A Preferred Stock to be redeemed (and so as to be and
continue to be available therefor), with a bank or trust company named in such
notice doing business in Los Angeles, California and having capital surplus and
undivided profits of at least $50,000,000, thereupon, and without awaiting the
redemption date, all shares of the Series A Preferred Stock with respect to
which such notice shall have been so mailed and such deposit shall have been so
make, shall, notwithstanding that any certificate for shares of Series A
Preferred Stock shall not have been surrendered for cancellation, be deemed to
be no longer outstanding and all rights with respect to such shares of the
Series A Preferred Stock shall forthwith upon such deposit in trust cease and
terminate, except for the right of the holders thereof on or after the
redemption date to receive from such deposit the amount payable upon the
redemption, but without interest. In case the holders of shares of the Series A
Preferred Stock which shall have been called for redemption shall not within two
years (or any longer period if required by law) after the redemption date claim
any amount so deposited in trust for the redemption of such shares, such bank or
trust company shall, if permitted by applicable law, pay over to the Corporation
any such unclaimed amount so deposited with it, and shall thereupon be relieved
of all responsibility in respect thereof, and thereafter the holders of such
shares shall, subject to applicable escheat laws, look only to the Corporation
for payment of the redemption price thereof, but without interest.
(c) Status of Shares. Shares of Series A Preferred Stock
redeemed, purchased or otherwise acquired for value by the Corporation shall,
after such acquisition, have the status of authorized and unissued shares of
Preferred Stock and may be reissued by the Corporation at any time as shares of
any series of Preferred Stock, other than shares of Series A Preferred Stock.
4. Priority.
(a) Priority as to Dividends. Subject to section 4(b), no
dividends (other than dividends payable in Common Stock or in another stock
ranking, with respect to the payment of dividends and upon liquidation,
dissolution, winding-up or otherwise, junior to, or on a parity with, the Series
A Preferred Stock) shall be declared or paid or set apart for payment on the
Preferred Stock of any series, or stock of any other class which, in either
case, ranks, as to dividends and upon liquidation, dissolution, winding up or
otherwise, (x) junior to the Series A Preferred Stock ("Junior Stock") or (y) on
a parity with the
5
Series A Preferred Stock ("Parity Stock") for any period unless at the time of
such declaration or payment or setting apart for payment (i) full cumulative
dividends have been or contemporaneously are declared and paid (or declared and
a sum sufficient for the payment thereof set apart for such payment) on the
Series A Preferred Stock for all quarterly Dividend Periods terminating on or
prior to the date of payment of such dividends on Junior Stock or Parity Stock,
(ii) the Corporation shall not be in default with respect to any obligation to
redeem or return shares of Series A Preferred Stock, and (iii) an amount equal
to the dividends accrued on the Series A Preferred Stock from the last Dividend
Payment Date to the Date of Payment of such dividends on Junior Stock or Parity
has been declared and set apart in cash for payment on the Series A Preferred
Stock.
(b) Notwithstanding anything to the contrary in Section
4(a) hereof, cumulative dividends on any parity Stock may be paid if cumulative
dividends shall be declared upon shares of Series A Preferred Stock and such
Parity Stock on a pro rate basis so that in all cases the amount of dividends
declared per share on the Series A Preferred Stock and such Parity Stock shall
bear to each other the same ratio that accrued dividends per share on the shares
of Series A Preferred Stock and on such Parity Stock bear to each other.
(c) Priority on Redemption. The Corporation shall not,
directly or indirectly, redeem or purchase or otherwise acquire for value any
Junior Stock or Parity Stock unless, at the time of making such redemption,
purchase or other acquisition the Corporation shall have redeemed, or shall
contemporaneously redeem, all of the then outstanding shares of Series A
Preferred Stock at the applicable redemption price (or shall have irrevocably
committed to redeem all of the then outstanding shares of Series A Preferred
Stock and have set aside a sum sufficient for the payment thereof at the
applicable Redemption Price on the date of such subsequent redemption).
5. Liquidation Preference.
(a) In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or involuntary,
after payment or provision for payment of the debts and other liabilities of the
Corporation, the holders of shares of the Series A Preferred Stock shall be
entitled to receive for each share of Series A Preferred Stock then held, out of
the assets of the Corporation, whether such assets are capital or surplus and
whether or not any dividends as such are declared, the applicable Redemption
Price on the date fixed for distribution, and no more, before any distribution
6
shall be made to the holders of the Common Stock or Junior Stock with respect to
the distribution of assets.
If, upon any such liquidation, dissolution or other
winding up of the affairs of the Corporation, the assets of the Corporation
distributable among the holders of all outstanding shares of the Series A
Preferred Stock and of any Parity Stock shall be insufficient to permit the
payment in full to such holders of the preferential amounts to which they are
entitled, then the entire assets of the Corporation remaining after the payment
or provision for payment of the debts and other liabilities of the Corporation
shall be distributed among the holders of the Series A Preferred Stock and of
any Parity Stock ratably in proportion to the full amount so to which they would
otherwise be respectively entitled.
(b) Written notice of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation,
stating a payment date and the place where the distributive amounts shall be
payable, shall be given by mail, postage prepaid, not less than 30 days prior to
the payment date stated therein, to the holders of record of the Series A
Preferred Stock at their respective addresses as the same shall appear on the
hooks of the Corporation.
(c) No payment on account of such liquidation, dissolution
or winding up of the affairs of the Corporation shall be made to the holders of
any Parity Stock, unless there shall likewise be paid at the same time to the
holders of the Series A Preferred Stock like proportionate distributive amounts,
ratably, in proportion to the full distributive amounts to which they and the
holders of such Parity Stock are respectively entitled with respect to such
preferential distribution.
6. Voting Rights.
(a) General Voting Rights. Except as otherwise required by
law, the holders of the Series A Preferred Stock shall be entitled to vote along
with the Common Stock (and not as a separate class) on all matters and shall be
entitled to one vote per share of Series A Preferred Stock.
FIFTH: The number of directors which shall constitute the
whole Board of Directors shall be fixed by, or in the manner provided in, the
Bylaws of the Corporation.
SIXTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
repeal, alter, amend and rescind the Bylaws
7
of the Corporation.
SEVENTH: The Corporation is to have perpetual existence.
EIGHTH: From time to time any of the provisions of this
Certificate of Incorporation may be amended, altered, or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted in the manner and at the time prescribed by said laws,
and all rights at any time conferred upon the stockholders of the Corporation by
this Certificate of Incorporation are granted subject to the provisions of this
Article EIGHTH.
NINTH: The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware (or any
successor section), as the same may be amended and supplemented, indemnify any
and all persons whom it shall have power to indemnify under said section from
and against any and all of the expenses, liabilities, or other matters referred
to in or covered by said section, and the indemnification provided for herein
shall not be deemed exclusive of any other rights to which those indemnified may
be entitled under any Bylaw, agreement, vote of Stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such a
person.
TENTH: No director shall be personally liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director; provided that this Article TENTH shall not eliminate or limit the
liability of a director (i) for any breach of such 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 the law,
(iii) under Section 174 of the General Corporation law of the State of Delaware,
or (iv) for any transaction from which such director derives an improper
personal benefit. If the General Corporation Law of the State of Delaware is
amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the General Corporation law of the State of Delaware as so amended. No amendment
to or repeal of this Article TENTH shall adversely affect any right or
protection of any director of the Corporation existing at the time of such
8
amendment or repeal for or with respect to acts or omissions of such director
prior to such amendment or repeal.
ELEVENTH: Election of directors at an annual or special meeting
of stockholders need to be by written ballot unless the Bylaws of the
Corporation shall so provide.
9
TWELFTH: The name and the mailing address of the incorporator
are as follows:
NAME and MAILING ADDRESS:
Ilona F. Bush
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
Dated: May 17, 1996
-----------------------------
Ilona F. Bush
Incorporator
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Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 6/16/98 | | | | | | | None on these Dates |
| Filed on: | | 6/15/98 |
| | 6/30/96 | | 4 |
| | 5/17/96 | | 11 |
| | 5/15/96 | | 2 |
| | 5/10/96 | | 2 |
| List all Filings |
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