EXHIBIT 3.1
AMENDED AND RESTATED
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CERTIFICATE OF INCORPORATION
OF
UNITED ARTISTS THEATRE COMPANY
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ARTICLE I
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The name of the corporation (which is hereinafter referred to as the
"Corporation") is:
United Artists Theatre Company
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ARTICLE II
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The address of the Corporation's registered office in the State of
Delaware is The Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of the Corporation's registered
agent at such address is The Corporation Trust Company.
ARTICLE III
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The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware.
ARTICLE IV
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Section 1. The Corporation shall be authorized to issue 30,075,000 shares of
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capital stock, of which 23,200,000 shares shall be Class A Voting Common Stock,
$.01 par value ("Class A Common Stock"), 1,818,000 shares shall be Class B Non-
Voting Common Stock, $.01 par value ("Class B Non-Voting Common Stock"), 57,000
shares shall be Class C Non-Voting Common Stock, $.01 par value ("Class C Non-
Voting Common Stock"), and 5,000,000 shares shall be Preferred Stock, $.10 par
value ("Preferred Stock"). The Class B Non-Voting Common Stock and the Class C
Non-Voting Common Stock are sometimes hereinafter together referred to as the
"Non-Voting Common Stock." The Non-Voting Common Stock and the Class A Common
Stock are sometimes hereinafter together referred to as the "Common Stock." All
shares of Common Stock outstanding upon the effectiveness of this Restated
Certificate of Incorporation shall be automatically deemed to be shares of Class
A Common Stock.
Section 2. Shares of Preferred Stock may be issued from time to time in one
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or more series. The Board of Directors of the Corporation (the "Board") is
hereby authorized to fix the voting rights, if any, designations, powers,
preferences and the relative, participation, optional or other rights, if any,
and the qualifications, limitations or restrictions thereof, of any unissued
series of Preferred Stock; and to fix the number of shares constituting such
series, and to increase or decrease the number of shares of any such series (but
not below the number of shares thereof then outstanding).
Section 3. (a) Except as otherwise provided by law or by the resolution or
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resolutions adopted by the Board designating the rights, powers and preferences
of any series of Preferred Stock, each outstanding share of Class A Common Stock
shall be entitled to vote on
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each matter on which the stockholders of the Corporation shall be entitled to
vote. Each holder of Class A Common Stock shall be entitled to one vote for each
share of such stock held by such holder.
(b) Except as set forth herein or as otherwise required by law, each
outstanding share of Non-Voting Common Stock shall not be entitled to vote
on any matter, including on any matter on which the holders of the Class A
Common Stock shall be entitled to vote, and shares of Non-Voting Common
Stock shall not be included in determining the number of shares voting or
entitled to vote on any such matters. On any matter on which the holders
of shares of any of the Class A Common Stock, Class B Non-Voting Common
Stock and Class C Non-Voting Common Stock may be entitled to vote, except
as otherwise required by law, all classes of Common Stock entitled to vote
shall vote together as a single class, and each holder of shares of Non-
Voting Common Stock entitled to vote shall be entitled to one vote for each
share of such stock held by such holder; provided that, notwithstanding the
foregoing, holders of shares of Non-Voting Common Stock shall be entitled
to vote as a separate class on any amendment to this subsection 3(b) and on
any amendment, repeal or modification of any provision of this Restated
Certificate of Incorporation that adversely affects the powers, preferences
or special rights of holders of shares of Non-Voting Common Stock.
Notwithstanding the foregoing and without limiting the first sentence of
this Section 3(b), no vote or consent of the holders of any Class B Non-
Voting Common Stock or any Class C Non-Voting Common Stock will be required
for (i) the creation or incurrence of any indebtedness of any kind of the
Corporation or any of its subsidiaries, (ii) the creation, issuance, or
increase or decrease in the amount, of any class or series of capital stock
of the Corporation, whether ranking prior to, on a parity with, or junior
to the
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Class B Non-Voting Common Stock or any Class C Non-Voting Common Stock as
to dividends or upon liquidation, dissolution or winding up of the
Corporation, (iii) any merger, consolidation or similar transaction
involving the Corporation or any sale, lease or other conveyance of all or
substantially all of the assets of the Corporation, or (iv) any other
action by the Corporation or any of its subsidiaries.
Section 4. Subject to the provisions of any series of Preferred Stock which
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may at the time be outstanding, the Board of Directors of the Corporation may
declare or make and cause to be paid, dividends or other distributions to the
holders of shares of Class A Common Stock or Non-Voting Common Stock out of any
funds of the Corporation legally available for the payment of dividends or
assets legally available for such distributions; provided, however, that
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dividends and distributions shall be declared, made and paid pro rata on a
share-for-share basis on the Class A Common Stock and the Class B Non-Voting
Common Stock; provided further that no dividends or other distributions shall be
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declared, made or paid on the Class C Non-Voting Common Stock until the
aggregate fair market value (as determined in good faith by the Board of
Directors of Oscar I) of dividends and distributions (other than dividends or
distributions in shares of Class A Common Stock or Class B Non-Voting Common
Stock of Oscar I) paid or distributed per share of Class A Common Stock and per
share of Class B Non-Voting Common Stock after May 5, 1992 shall be equal in the
aggregate to $9.50 per share of Class A Common Stock and $9.50 per share of
Class B Non-Voting Common Stock, respectively (the "Common Stock Dividend
Amount"); and provided further that thereafter any dividends or other
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distributions declared, made or paid by the Corporation shall be declared, made
and paid pro rata,
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on a share-for-share basis, on the Class A Common Stock, the Class B Non-Voting
Common Stock and the Class C Non-Voting Common Stock.
Section 5. In the event of any liquidation, dissolution or winding up of the
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Corporation, whether voluntary or involuntary, after payment to the holders of
any shares of Preferred Stock then outstanding of all amounts to which they are
entitled, if any, (i) the holders of shares of Class A Common Stock and the
Class B Non-Voting Common Stock then outstanding shall each first be entitled to
receive an amount equal to $9.50 per share (less the aggregate fair market value
(as determined as of the date of such dividend or distribution in good faith by
the Board of Directors of Oscar I) of dividends and distributions (other than
dividends or distributions in shares of capital stock of Oscar I) paid or
distributed per share of Class A Common Stock and per share of Class B Non-
Voting Common Stock after May 5, 1992, respectively, and prior to the time of
such liquidation, dissolution or winding up) (the "Common Stock Liquidation
Amount") and (ii) thereafter all of the holders of shares of Class A Common
Stock or Non-Voting Common Stock shall be entitled to share ratably, on a share-
for-share basis, in any remaining assets of the Corporation available for
distribution to its stockholders. In structuring a merger, recapitalization,
sale of substantially all of the assets of the Corporation or other
extraordinary capital transaction to transactions involving the Corporation, the
relative differentials between the Class A Common Stock, the Class B Non-Voting
Common Stock and the Class C Non-Voting Common Stock set forth in this Article
shall be taken into account and preserved (to the extent practicable).
Section 6. If the Corporation shall in any manner subdivide (by stock split,
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stock dividend or otherwise) or combine (by reverse stock split or otherwise)
the outstanding
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shares of the Class A Common Stock, the Class B Non-Voting Common Stock or the
Class C Non-Voting Common Stock, then the outstanding shares of each other class
of Common Stock shall be subdivided or combined, as the case may be, to the same
extent, share and share alike, and appropriate adjustment shall be made in the
Common Stock Liquidation Amount and the Common Stock Dividend Amount.
Section 7. Except as otherwise expressly provided in this Certificate of
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Incorporation, all shares of Common Stock shall entitle the holders thereof to
the same rights and privileges.
ARTICLE V
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Unless and except to the extent that the By-Laws of the Corporation
shall so require, the election of directors of the Corporation need not be by
written ballot.
ARTICLE VI
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In furtherance and not in limitation of the powers conferred by law,
the Board is expressly authorized and empowered to make, alter and repeal the
By-Laws of the Corporation by a majority vote at any regular or special meeting
of the Board or by written consent, subject to the power of the stockholders of
the Corporation to alter or repeal any By-Laws made by the Board.
ARTICLE VII
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The Corporation reserves the right at any time from time to time to
amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, and any other pro-
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visions authorized by the laws of the State of Delaware at the time in force may
be added or inserted, in the manner now or hereafter prescribed by law; and all
rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or any other persons whomsoever by and pursuant to this
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this Article VII.
ARTICLE VIII
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Section 1. Elimination of Certain Liability of Directors. A director of the
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Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) 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 of the General Corporation Law of the State of Delaware, or (iv) for
any transaction from which the director derived an improper personal benefit.
Section 2. Indemnification and Insurance.
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(a) Right to Indemnification. Each person who was or is made a party or is
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threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was a director
or officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis
of such proceeding is
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alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the General Corporation Law
of the State of Delaware, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights
than said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of his or her heirs, executors and administrators; provided,
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however, that, except as provided in paragraph (b) hereof, the Corporation
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shall indemnify any such person seeking indemnification in connection with
a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board. The right to
indemnification conferred in this Section shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred
in defending any such proceeding in advance of its final disposition;
provided, however, that, if the General Corporation Law of the State of
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Delaware requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it
shall ultimately be determined that such director or officer is not
entitled to be indemnified under
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this Section or otherwise. The Corporation may, by action of the Board,
provide indemnification to employees and agents of the Corporation with the
same scope and effect as the foregoing indemnification of directors and
officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of this
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Section is not paid in full by the Corporation within thirty days after a
written claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim.
It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in
advance of its final disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the claimant has not
met the standards of conduct which make it permissible under the General
Corporation Law of the State of Delaware for the Corporation to indemnify
the claimant for the amount claimed, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, nor an
actual determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to the action
or create a presumption that the claimant has not met the applicable
standard of conduct.
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(c) Non-Exclusivity of Rights. The right to indemnification and the payment of
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expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, By-law, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its expense, to
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protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any such expense, liability or loss, whether or
not the Corporation would have the power to indemnify such person against
such expense, liability or loss under the General Corporation Law of the
State of Delaware.
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