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EXHIBIT 3.1
CERTIFICATE OF ELIMINATION WITH RESPECT
TO THE SERIES A PREFERRED STOCK
OF
HOLLYWOOD THEATERS, INC.
PURSUANT TO SECTION 151(g)
In accordance with Section 151(g) of the General Corporation Law of
the State of Delaware, Hollywood Theaters, Inc., a Delaware corporation (the
"Corporation"), does hereby certify that the following resolutions with respect
to its Series A Preferred Stock, par value $.01 per share (the "Series A
Preferred Stock") were duly adopted by the Corporation's Board of Directors:
WHEREAS, pursuant to Section 151(g) of the General Corporation
Law of the State of Delaware, the Corporation duly filed a Restated Certificate
of Incorporation on June 21, 1995 and a Certificate of Designation on June 22,
1995 with respect to its Series A Preferred Stock; and
WHEREAS, there are no shares of Series A Preferred Stock
outstanding, nor will any be issued subject to the Certificate of Designation.
NOW, THEREFORE, BE IT RESOLVED, that no shares of the
Corporation's Series A Preferred Stock are outstanding and no shares of the
Series A Preferred Stock will be issued subject to the Certificate of
Designation previously filed with respect to the Series A Preferred Stock; and
RESOLVED, that the officers of the Corporation are hereby
authorized and empowered to file with the Secretary of State of the State of
Delaware a certificate pursuant to Section 151(g) of the General Corporation
Law of the State of Delaware setting forth these resolutions in order to
eliminate from the Corporation's certificate of incorporation all matters set
forth in the Certificate of Designation with respect to the Series A Preferred
Stock.
IN WITNESS WHEREOF, Hollywood Theaters, Inc. has caused this
certificate to be executed by the undersigned this 7th day of August, 1997.
HOLLYWOOD THEATERS, INC.
By: /s/ James R. Featherstone
-------------------------------------
James R. Featherstone
Vice President and Chief
Financial Officer
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CERTIFICATE OF OWNERSHIP AND MERGER OF
FOREIGN SUBSIDIARY CORPORATION INTO
DOMESTIC PARENT CORPORATION
Pursuant to the provisions of Section 253 of the Delaware General
Corporation Law ("DGCL"), the undersigned domestic corporation adopts the
following Certificate of Ownership and Merger for the purpose of merging one of
its subsidiary corporations into itself:
1. Hollywood Theaters, Inc., a Delaware corporation
("Hollywood"), owns 105,001 shares of Common Stock, no par value per share, of
Escape Theatres, Inc., a Texas corporation ("Escape"), which shares constitute
all of the issued and outstanding shares of each class of capital stock of
Escape.
2. A copy of the resolutions adopted by the Board of Directors of
Hollywood to merge Escape into Hollywood is attached hereto as Exhibit A.
Such resolutions were adopted as of July 23, 1997, and remain in full force and
effect as of the date hereof.
IN WITNESS WHEREOF, this Certificate of Ownership and Merger has been
duly executed on July 23, 1997.
HOLLYWOOD THEATERS, INC.
By: /s/ Jackie Lynn McClure
-------------------------------------
Jackie Lynn McClure, Assistant
Secretary
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CERTIFICATE OF MERGER
OF
TRANS-TEXAS AMUSEMENTS, INC.
(A TEXAS CORPORATION)
AND
TRANS TEXAS THEATRES, INC.
(A TEXAS CORPORATION)
WITH AND INTO
HOLLYWOOD THEATERS, INC.
(A DELAWARE CORPORATION)
This CERTIFICATE OF MERGER (the "Certificate") is being
executed and filed pursuant to Sections 252 and 103 of the Delaware General
Corporation Law (the "DGCL"). The undersigned, Hollywood Theaters, Inc., a
Delaware corporation (the "Corporation"), hereby certifies that:
FIRST: The name and state of incorporation of each of the
constituent corporations are as follows:
Name State of Incorporation
---- ----------------------
Trans-Texas Amusements, Inc. Texas
Trans Texas Theatres, Inc. Texas
Hollywood Theaters, Inc. Delaware
SECOND: An Agreement and Plan of Merger (the "Agreement and
Plan of Merger") has been approved, adopted, certified, executed and
acknowledged by each of the constituent corporations in accordance
with the provisions of Section 252 of the DGCL.
THIRD: The surviving corporation of the merger is Hollywood
Theaters, Inc., a Delaware corporation, which shall continue in
existence under the name "Hollywood Theaters, Inc."
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FOURTH: The Certificate of Incorporation in effect for
Hollywood Theaters, Inc. immediately prior to the merger shall be the
Certificate of Incorporation for the surviving corporation.
FIFTH: The executed Agreement and Plan of Merger is on file
at the principal place of business of the Corporation, which is
located at 2911 Turtle Creek Blvd., Suite 1150, Dallas, Texas 75219.
The Corporation will furnish to any stockholder of a constituent
corporation, upon request and without cost, a copy of the Agreement
and Plan of Merger.
SIXTH: The authorized capital stock of Trans-Texas
Amusements, Inc., a Texas corporation, consists of 10,000 shares of
common stock, without par value. The authorized capital stock of
Trans Texas Theatres, Inc., a Texas corporation, consists of 10,000
shares of common stock, without par value.
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IN WITNESS WHEREOF, the undersigned has caused this
Certificate to be executed as of July 10, 1995.
HOLLYWOOD THEATERS, INC.
By: /s/ Thomas W. Stephenson, Jr.
-------------------------------------
Thomas W. Stephenson, Jr.
President
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HOLLYWOOD THEATERS, INC.
Certificate of Designation, Preferences and Rights
of Preferred Stock by Resolution
of the Board of Directors Providing for
Issue of Preferred Stock Designated
"Series A Preferred Stock"
Pursuant to Section 151
of the
General Corporation Law of the State of Delaware
HOLLYWOOD THEATERS, INC. (hereinafter referred to as the
"Corporation"), a corporation organized and existing under the General
Corporation Law of the State of Delaware, in accordance with the provisions of
Section 103 thereof, does hereby certify that:
The Board of Directors of the Corporation has duly adopted
resolutions providing for the issuance of a series of Preferred Stock to be
designated "Series A Preferred Stock" in accordance with the provisions of
Sections 151 of the General Corporation Law of the State of Delaware. These
resolutions are as follows:
SERIES A PREFERRED STOCK
RESOLVED, that the Board of Directors of the Corporation,
pursuant to the authority conferred upon it by the Certificate of
Incorporation, does hereby create and provide for the issue of a series of the
Preferred Stock, par value $.01 per share, of the Corporation and does hereby
fix and herein state the designation, preferences and relative and other
special rights of such series, and the qualifications, limitations and
restrictions thereof, as follows:
1. Designation and Amount. There is hereby created a
series of Preferred Stock designated as "Series A Preferred Stock." The
number of shares constituting such series shall be 1,000. Such number of
shares may be increased or decreased from time to time by resolution of the
Board of Directors; provided, however, that no decrease shall reduce the number
of shares of Series A Preferred Stock to a number less than the number of
shares of such series then issued and outstanding, plus the number of shares of
such series reserved for issuance upon the exercise of outstanding rights,
options or warrants or upon the conversion or exchange of outstanding
securities issued by the Corporation.
2. Voting Rights. Except as may be provided under
applicable law, the holders of Series A Preferred Stock shall not be entitled
to vote on the election of directors of the Corporation or any other matter
submitted to a vote of the stockholders of the Corporation.
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3. Dividends. The holders of Series A Preferred Stock
shall not be entitled to receive any dividends thereon.
4. Liquidation. Each share of Series A Preferred Stock
shall rank prior to each share of Junior Stock with respect to the distribution
of assets upon a Liquidation. In the event of any Liquidation, each holder of
a share of Series A Preferred Stock shall be entitled to receive, before any
distribution shall be made to the holders of Junior Stock, an amount per share
equal to $1,000.00 (the "Series A Liquidation Preference"). In the event that
there are not sufficient assets available to permit payment in full of the
Series A Liquidation Preference to all holders of outstanding shares of Series
A Preferred Stock, then the remaining assets of the Corporation shall be
distributed to the holders of this series in proportion to the Series A
Liquidation Preferences of the shares of Series A Preferred Stock held by them.
After payment shall have been made in full to the holders of the Series A
Preferred Stock, the remaining assets and funds of the Corporation shall be
distributed among the holders of Junior Stock according to their respective
rights.
5. Redemption.
(a) Mandatory. Provided that the Corporation may then
redeem shares of Series A Preferred Stock in accordance with the
applicable provisions of the General Corporation Law of the State of
Delaware, and provided that the Corporation is not then in default
under any agreement with respect to indebtedness for borrowed money
and such redemption would not cause such a default, the Corporation
shall redeem shares of Series A Preferred Stock by paying a redemption
price in cash in an amount per share equal to the Series A Liquidation
Preference upon (i) the sale or other disposition of all or
substantially all of the assets of the Corporation;(ii) the merger or
consolidation of the Corporation with or into any other corporation
wherein, after giving effect to such merger or consolidation, (A) less
than 50% of the total voting power of the outstanding voting stock of
the surviving or resulting entity is then beneficially owned in the
aggregate by (x) the stockholders of the Corporation immediately prior
to such merger or consolidation or, (y) if a record date has been set
to determine the stockholders of the Corporation entitled to vote with
respect to such merger or consolidation, the stockholders of the
Corporation as of such record date and (B) any Person or group, other
than the Control Group, has become the direct or indirect beneficial
owner of more than 50% of the total voting power of the voting stock
of the surviving or resulting entity; or (iii) the payment of any
dividend or distribution in respect of shares of Junior Stock. For
purposes of this Section 5(a), the terms "person," "group" and
"beneficial owner" are used as defined for purposes of Section 13(d)
of the Securities Exchange Act of 1934, as amended.
(b) Optional. At any time and from time to time, the
Corporation may, at its sole option by resolution of the Board of
Directors, call for redemption and redeem all or any part of the then
outstanding shares of Series A Preferred Stock by paying a redemption
price in cash in an amount per share equal to the Series A Liquidation
Preference; provided, that, if less than all of the then outstanding
shares of Series A Preferred Stock are to be redeemed,
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the shares to be redeemed shall be allocated pro rata among the
holders of Series A Preferred Stock in proportion to the number of
shares held by them.
(c) Notice. At least 20 days prior to the redemption of
any shares of Series A Preferred Stock, the Corporation shall transmit
notice to each holder of record of the shares of Series A Preferred
Stock to be redeemed at such holder's address set forth in the stock
records of the Corporation. Such notice shall also state the date
fixed for redemption (the "Redemption Date") and the redemption price
and shall call upon the holder to surrender to the Corporation on the
Redemption Date at the place designated in the notice such holder's
certificate or certificates representing shares of Series A Preferred
Stock to be redeemed. On or after the Redemption Date, each holder of
shares of Series A Preferred Stock called for redemption shall
surrender the certificate or certificates evidencing such shares to
the Corporation at the place designated in such notice in exchange for
payment of the redemption price. If funds legally available for such
purpose are not sufficient for the redemption of the shares of Series
A Preferred Stock called for redemption, or if the Corporation is then
or would as a result of such redemption be in default under any
agreement with respect to indebtedness for borrowed money, then the
certificates representing shares of Preferred Stock surrendered of
redemption shall be deemed not to be surrendered and such shares shall
remain outstanding. If such notice of redemption shall have been duly
given, and if on the Redemption Date funds necessary for the
redemption shall be available therefor and the Corporation may
otherwise redeem shares of Series A Preferred Stock pursuant to this
Section 5, then, notwithstanding that any certificate evidencing
shares of Series A Preferred Stock called for redemption shall not
have been surrendered, the shares so called for redemption and
represented by such certificate shall be deemed to be no longer
outstanding and, except for the right of the holder thereof to receive
the redemption price (without interest) upon surrender of such
certificate, all rights with respect to the shares so called for
redemption shall forthwith cease and terminate as of the Redemption
Date.
6. Amendment. So long as any share or shares of Series
A Preferred Stock are outstanding, the Corporation shall not, without the
affirmative vote of the holders of at least a majority of the outstanding
shares of Series A Preferred Stock at the time outstanding, voting separately
as a class, amend, alter or repeal any of the rights, preferences or powers of
the holders of shares of Series A Preferred Stock so as to affect adversely any
such rights, preferences or powers.
7. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to any conditions and restrictions set forth herein.
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8. Certain Definitions. As used in the foregoing
resolutions, the terms set forth below shall have the following respective
meanings:
"Control Group" means the Persons, other than Hollywood
Theater Holdings, Inc., who are the original parties to that certain
Stockholders' Agreement to be entered into among Hollywood Theater Holdings,
Inc. and the Persons to whom shares of Series A Preferred Stock, par value $.01
per share, of Hollywood Theater Holdings, Inc. are first issued.
"Junior Stock" means Common Stock, par value $.01 per share,
of the Corporation and any other class or series of capital stock of the
Corporation that ranks junior to the Series A Preferred Stock with respect to
the payment of dividends or the distribution of assets upon a Liquidation.
"Liquidation" means any liquidation, dissolution or winding up
of the affairs of the Corporation; provided, however, that a merger or
consolidation of the Corporation into or with another corporation or a sale or
conveyance of all or any part of the assets of the Corporation (which shall not
in fact result in the liquidation of the Corporation and the distribution of
assets to its stockholders) shall not be deemed to constitute a liquidation,
dissolution or winding up of the affairs of the Corporation for purposes of
this definition.
"Person" means any individual, corporation, estate, trust,
association, company, partnership, joint venture or other entity or
organization.
"Preferred Stock" has the meaning set forth in the Certificate
of Incorporation of the Corporation, as amended from time to time.
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IN WITNESS WHEREOF, Hollywood Theaters, Inc. has caused this
Certificate to be executed by the undersigned this 21st day of June, 1995.
HOLLYWOOD THEATERS, INC.
By: /s/ Thomas W. Stephenson, Jr.
-------------------------------------
Thomas W. Stephenson, Jr.
President
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HOLLYWOOD THEATERS, INC.
UNDER SECTIONS 241 AND 245 OF THE
DELAWARE GENERAL CORPORATION LAW
HOLLYWOOD THEATERS, INC. (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of
the State of Delaware, hereby adopts this Amended and Restated Certificate of
Incorporation that accurately restates and integrates the provisions of the
existing Certificate of Incorporation of the Corporation (the "Certificate of
Incorporation") and further amends the provisions of the Certificate of
Incorporation as described below, and does hereby further certify that:
The name of the Corporation is Hollywood Theaters, Inc. The
Corporation was originally incorporated under the name "AF Acquisition, Inc."
The original certificate of incorporation of the Corporation was filed with the
Secretary of State of the State of Delaware on May 19, 1993.
The Corporation has not received any payment for any of its
stock. The sole director of the Corporation duly adopted the amendments to the
Certificate of Incorporation as described herein, in accordance with the
provisions of Section 241 and 245 of the General Corporation Law of the State
of Delaware.
The existing Certificate of Incorporation, as amended by this
Amended and Restated Certificate of Incorporation, is hereby superseded by this
Amended and Restated Certificate of Incorporation, which shall henceforth be
the Certificate of Incorporation of the Corporation.
The text of the Amended and Restated Certificate of
Incorporation is hereby restated and further amended to read in its entirety as
follows:
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
FIRST: The name of the corporation is Hollywood Theaters,
Inc. (the "Corporation").
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street, Wilmington, County
of New Castle, Delaware 19801. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
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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 (the "General Corporation
Law").
FOURTH: The total number of shares of all classes of capital
stock which the Corporation shall have authority to issue is 110,000 shares
consisting of (i) 10,000 shares of preferred stock, par value $.01 per share
("Preferred Stock"), and (ii) 100,000 shares of common stock, par value $.01
per share ("Common Stock").
The powers, preferences and rights of each class of capital
stock, and the qualifications, limitations and restrictions thereof, are as
follows:
a. Preferred Stock. Shares of Preferred Stock may be
issued in such series as may from time to time be determined by the Board of
Directors. Prior to the issuance of a series, the Board of Directors by
resolution shall designate the series to distinguish it from any other classes
or series of capital stock of the Corporation, shall specify the number of
shares to be included in the series and shall fix the powers, preferences and
relative, participating, optional or other special rights of the series, and
the qualifications, limitations or restrictions thereof. Without limiting the
generality of the foregoing, any such resolution of the Board of Directors may
set forth the following characteristics of the series:
i. the designation of, and the number of shares of
Preferred Stock which shall constitute, the series, which number may
be increased (except as otherwise provided by the Board of Directors)
or decreased (but not below the number of shares thereof then
outstanding) from time to time by action of the Board of Directors;
ii. the rate or rates and the date or dates at which (or
the method of determination thereof), and the terms and conditions
upon which, dividends, if any, on shares of the series shall be paid,
the nature of any preferences or the relative rights of priority of
such dividends to the dividends payable on any other class or classes
of capital stock of the Corporation or on any series of Preferred
Stock of the Corporation, and whether such dividends shall be
cumulative;
iii. whether shares of the series shall be convertible
into or exchangeable for shares of capital stock or other securities
or property of the Corporation or of any other corporation or entity,
and, if so, the terms and conditions of such conversion or exchange,
including any provisions for the adjustment of the conversion or
exchange rate upon the occurrence of such events as the Board of
Directors shall determine;
iv. whether shares of the series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the
date or dates upon or after which they shall be redeemable and the
amount and type of consideration payable upon redemption, which amount
may vary under different conditions and at different redemption dates;
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v. whether shares of the series shall have a sinking
fund or redemption or purchase account for the redemption or purchase
of shares of the series, and if so, the terms, conditions and amount
of such sinking fund or redemption or purchase account;
vi. the rights of the holders of shares of the series
upon voluntary or involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding up of the
Corporation;
vii. whether shares of the series shall have voting rights
in addition to the voting rights provided by law, which may include
(a) the right to more or less than one vote per share on any or all
matters submitted to a vote of the stockholders of the Corporation and
(b) the right to vote, as a series by itself or together with any
other series of Preferred Stock or together with all series of
Preferred Stock as a class or with the Common Stock as a class, upon
such matters, under such circumstances and upon such conditions as the
Board of Directors may fix (including, but not limited to, the right,
voting as a series by itself or together with any other series of
Preferred Stock or together with all series of Preferred Stock as a
class, to elect one or more directors of the Corporation in the event
there shall have been a default in the payment of dividends on any
series of Preferred Stock or under such other circumstances and upon
such other conditions as the Board of Directors may determine); and
viii. any other powers, preferences and relative,
participating, optional or other rights, and the qualifications,
limitations or restrictions thereof.
Subject to the express terms of any series of Preferred Stock outstanding at
any time, the vote or consent of the holders of Preferred Stock of any series
shall not be required for the issuance of any other series of Preferred Stock,
regardless of whether the powers, preferences and rights of such other series
shall be fixed by the Board of Directors as senior to, on a parity with or
junior to the powers, preferences and rights of such outstanding series.
b. Common Stock.
i. Dividends. Subject to the rights, if any, of the holders of
Preferred Stock with respect to the payment of dividends and the requirements,
if any, with respect to the setting aside of sums as sinking funds or
redemption or purchase accounts for the benefit of such holders and subject to
any other conditions that may be fixed in accordance with the provisions of
paragraph A of this Article FOURTH, then, but not otherwise, the holders of
Common Stock shall be entitled to receive such dividends, if any, as may be
declared from time to time by the Board of Directors on the Common Stock out of
assets which are legally available therefor. Any such dividends shall be
distributed among the holders of the Common Stock pro rata in accordance with
the number of shares of such stock held by each such holder.
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ii. Liquidation. In the event of any voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or winding-up of the
Corporation, after payment or provision for payment of the debts and
liabilities of the Corporation and after distribution to the holders of
Preferred Stock of the amounts fixed in accordance with the provisions of
paragraph A of this Article FOURTH, the holders of the Common Stock shall be
entitled to receive all the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to stockholders. Any
such distribution shall be made among the holders of Common Stock pro rata in
accordance with the number of shares of such stock held by each such holder.
iii. Voting. Except as may otherwise be required by law or the
provisions of any resolution or resolutions adopted by the Board of Directors
pursuant to paragraph A of this Article FOURTH, each holder of Common Stock
shall have one vote for each share of Common Stock held by such holder on each
matter submitted to a vote of the stockholders. Cumulative voting of shares of
Common Stock shall not be permitted.
FIFTH: The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors. In furtherance
and not in limitation of the powers conferred by statute, the Board of
Directors is expressly authorized to adopt, amend or repeal the Bylaws of the
Corporation; provided, however, that the grant of such authority shall not
divest the stockholders of the power, nor limit their power to adopt, amend or
repeal the Bylaws. The number of directors that shall constitute the whole
Board of Directors of the Corporation shall be as from time to time fixed by,
or in the manner provided in, the Bylaws of the Corporation. The election of
directors need not be by written ballot, unless the Bylaws so provide. In
addition to the authority and powers hereinabove or by statute conferred upon
the directors, the directors are hereby authorized and empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation, subject to the provisions of the General Corporation Law, this
Amended and Restated Certificate of Incorporation and any Bylaws adopted by the
stockholders of the Corporation; provided, however, that no Bylaws hereafter
adopted by the stockholders of the Corporation shall invalidate any prior act
of the directors that would have been valid if such Bylaws had not been
adopted.
SIXTH: No director of the Corporation shall be personally
liable to the Corporation or any of its stockholders for monetary damages for
breach of fiduciary duty as a director involving any act or omission of any
such director; provided, however, that the foregoing provision shall not
eliminate or limit the liability of a director (a) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (b) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the General Corporation Law,
as the same exists or hereafter may be amended, or (d) for any transaction from
which the director derived an improper personal benefit. If the General
Corporation Law is amended after the date of filing of this Amended and
Restated Certificate of Incorporation to authorize corporate action further
limiting or eliminating the personal liability of directors, then the liability
of a director of the Corporation, in addition to the limitation on personal
liability provided for herein, shall be limited to the fullest extent permitted
by the General Corporation Law as so amended. Any
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repeal or modification of this Article Sixth by the stockholders of the
Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation existing
at the time of such repeal or modification.
IN WITNESS WHEREOF, the undersigned has executed this Amended
and Restated Certificate of Incorporation as of June 20, 1995 in his capacity
as sole director of Hollywood Theaters, Inc.
By: /s/ Thomas W. Stephenson, Jr.
-------------------------------------
Thomas W. Stephenson, Jr.
Sole Director
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