UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
AMC ENTERTAINMENT HOLDINGS, INC.
(Exact Name of Registrant as Specified in its
Charter)
Delaware |
|
26-0303916 |
(State
of incorporation or organization) |
|
(IRS
Employer Identification No.) |
|
|
One AMC Way
11500 Ash Street, Leawood, KS |
|
66211 |
(Address
of Principal Executive Offices) |
|
(Zip
Code) |
Securities to be registered pursuant to Section 12(b) of
the Act:
Title
of Each Class to be so Registered |
|
Name
of Each Exchange on Which
Each Class is to be Registered |
AMC
Preferred Equity Units, each constituting a depositary share representing a 1/100th interest in a share of Series A Convertible
Participating Preferred Stock |
|
New
York Stock Exchange |
If this form relates to the registration
of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c) or
(e), check the following box. x
If this form relates to the registration
of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d) or
(e), check the following box. ¨
Securities
Act registration statement file number to which this form relates: None
Securities to be registered pursuant to Section 12(g) of
the Act: None
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant’s
Securities to be Registered.
On August 4, 2022, AMC Entertainment Holdings, Inc.,
(the “Company”) declared a special dividend of one depositary share (an “AMC Preferred Equity Unit”)
for each share of Class A common stock, par value $0.01 per share (the “Common Stock”) of the Company outstanding
at the close of business on August 15, 2022. Each AMC Preferred Equity Unit represents an interest in one one-hundredth (1/100th)
of a share of the Company’s Series A Convertible Participating Preferred Stock (the “Preferred Stock”).
Each share of Preferred Stock is initially convertible into one-hundred (100) shares of the Company’s Common Stock upon the terms
described below.
Description of the AMC Preferred Equity
Units
General
Each AMC Preferred Equity Unit represents an
interest in one one-hundredth (1/100th) of a share of the Preferred Stock and will be evidenced by a depositary receipt. The Company
will deposit the underlying shares of the Preferred Stock with the Depositary (as defined below) pursuant to a Deposit Agreement among
the Company, Computershare Inc. and Computershare Inc.’s wholly-owned subsidiary Computershare Trust Company, N.A., collectively
acting as depositary and conversion agent (together, the “Depositary”), dated August 4, 2022 (the “Deposit
Agreement”). Subject to the terms of the Deposit Agreement, the depositary shares will be entitled to all the rights and preferences
of the Preferred Stock, as applicable, in proportion to the fraction of a share of Preferred Stock those depositary shares represent.
Listing
The Company has applied to list the AMC Preferred
Equity Units on the New York Stock Exchange (“NYSE”) under the symbol “APE”. Once the application is approved,
trading of the AMC Preferred Equity Units on the NYSE is expected to begin on or around August 22, 2022. The underlying Preferred
Stock will not be listed.
Automatic Conversion
To provide for the authorization of a sufficient
number of authorized and unissued and unreserved shares of the Common Stock into which the Preferred Stock (and, by virtue of such conversion,
AMC Preferred Equity Units) can convert in full, the Company may seek to obtain the requisite stockholder approval, at such time or times
as the board of directors in its sole discretion shall determine, of an amendment to its Third Amended and Restated Certificate of Incorporation
(the “Certificate of Incorporation”) to increase the number of authorized shares of Common Stock to a number at least
sufficient to permit the full conversion of the then-outstanding shares of Preferred Stock into Common Stock, or to such higher number
of authorized shares of Common Stock (which may be issued for any purpose) as the Company’s board of directors may determine in
its sole discretion (the “Common Stock Amendment”).
Under Delaware law, the affirmative vote of holders
of at least a majority in voting power of the Company’s outstanding capital stock will be required for stockholder approval of
the Common Stock Amendment. The holders of the AMC Preferred Equity Units will be entitled to vote on the Common Stock Amendment.
Upon the terms and in the manner described below
under “Description of the Preferred Stock – Conversion Procedures,” at 9:30 a.m., New York City time, on the first
business day following the effectiveness of the Common Stock Amendment, all of the issued and outstanding shares of Preferred Stock will
automatically convert in full with no action on the part of holders into Common Stock at the then-applicable conversion rate and the
Preferred Stock will cease to exist.
Because each AMC Preferred Equity Unit represents
an interest in one one-hundredth (1/100th) of a share of Preferred Stock, and upon conversion one (1) share of Preferred Stock is
convertible into one-hundred (100) shares of Common Stock, each AMC Preferred Equity Unit would represent an interest in one (1) share
of Common Stock upon conversion and such Common Stock will be deliverable upon conversion in respect of each AMC Preferred Equity Unit,
in each case subject to adjustments as described herein. After delivery of Common Stock by the transfer agent to the Depositary following
conversion of the Preferred Stock, the Depositary will transfer the proportional number of shares of Common Stock to the holders of AMC
Preferred Equity Units by book-entry transfer through the Depository Trust Company (“DTC”) or, if such holders’
interests are in certificated depositary receipts or held through the book-entry settlement system of the Depositary, by delivery of
common stock certificates or book-entry transfer through the Depositary, as applicable, for such number of shares of Common Stock. In
the event that the holders of AMC Preferred Equity Units would be entitled to receive fractional shares of Common Stock, the Depositary
will pay such holders cash in lieu of such fractional shares, as described under “Description of the Preferred Stock – Fractional
Shares” below.
Dividends and Other Distributions
Holders of AMC Preferred Equity Units will receive
dividends only to the extent such dividends are declared on the Preferred Stock. Each dividend on a AMC Preferred Equity Unit will be
in an amount equal to the dividend on one share of Common Stock, or one one-hundredth (1/100th) of any dividend declared on the related
share of the Preferred Stock, subject to adjustment.
The Depositary will distribute all cash dividends
and other cash distributions received on the Preferred Stock to the holders of record of the depositary receipts in proportion, as nearly
as practicable, to the number of AMC Preferred Equity Units held by each holder. In the event of a distribution other than in cash, rights,
preferences or privileges upon the Preferred Stock, the Depositary will, at the direction of the Company, distribute such amounts of
securities or property received by it to the holders of record of the depositary receipts in proportion to the number of AMC Preferred
Equity Units held by each holder, unless the Depositary determines that this distribution is not feasible, in which case the Depositary
may, with the Company’s approval, adopt a method of distribution that it deems practicable, including the sale of the property
and distribution of the net proceeds of that sale to the holders of the depositary receipts.
Record dates for the payment of dividends and
other matters relating to the AMC Preferred Equity Units will be the same as the corresponding record dates for the Preferred Stock.
The amount paid as dividends or otherwise distributable
by the Depositary with respect to the AMC Preferred Equity Units or the underlying Preferred Stock will be reduced by any amounts required
to be withheld by the Company or the Depositary on account of taxes or other governmental charges. The Depositary may refuse to make
any payment or distribution, or any transfer, exchange, or withdrawal of any AMC Preferred Equity Units or the shares of the Preferred
Stock until such taxes or other governmental charges are paid.
Voting Rights
Because each AMC Preferred Equity Unit represents
an interest in one one-hundredth (1/100th) of a share of the Preferred Stock, and holders of the Preferred Stock will initially be entitled
to one hundred (100) votes per share and will vote together with the holders of common stock on an as-converted basis, each AMC Preferred
Equity Unit represents the equivalent of one vote under those circumstances in which holders of the Preferred Stock are entitled to a
vote, as described under “Description of the Preferred Stock – Voting Rights” below.
When the Depositary receives notice of any meeting
at which the holders of the Preferred Stock are entitled to vote, the Depositary will, if requested in writing, as soon as practicable
thereafter, mail or transmit a notice prepared by the Company which will contain (i) the information contained in the notice to
the record holders of the AMC Preferred Equity Units relating to the Preferred Stock, (ii) a statement that such holders may, subject
to any applicable restrictions, instruct the Depositary as to the exercise of the voting rights pertaining to the shares of the Preferred
Stock represented by their respective AMC Preferred Equity Units, and (iii) a brief statement as to the manner in which such instructions
may be given. Each record holder of the AMC Preferred Equity Units on the record date, which will be the same date as the record date
for the Preferred Stock, may instruct the Depositary to vote the amount of the Preferred Stock represented by the holder’s AMC
Preferred Equity Units. Insofar as practicable, the Depositary will vote the amount of the Preferred Stock represented by AMC Preferred
Equity Units in accordance with the instructions it receives. The Company will agree to take all reasonable actions that the Depositary
determines are necessary to enable the Depositary to vote as instructed. In the absence of specific instructions from holders of AMC
Preferred Equity Units, the Depositary will vote the Preferred Stock represented by the AMC Preferred Equity Units evidenced by the receipts
of such holders proportionately with votes cast pursuant to instructions received from the other holders of AMC Preferred Equity Units.
Additional AMC Preferred Equity Units
The Company without the consent of holders of
AMC Preferred Equity Units may issue from time to time additional AMC Preferred Equity Units that will form part of the same series of
security.
Redemption
The AMC Preferred Equity Units will not be redeemable
or subject to any sinking fund or similar provision.
Preemptive Rights
The AMC Preferred Equity Units will not have
any preemptive rights.
Withdrawal
Any holder of an AMC Preferred Equity Unit may
withdraw the number of whole shares of the Preferred Stock and all money and other property, if any, represented thereby by surrendering
the receipts evidencing the AMC Preferred Equity Units at the Depositary’s principal office or at such other offices as the Depositary
may designate. Only whole shares of Preferred Stock may be withdrawn. If the AMC Preferred Equity Units surrendered by the holder in
connection with withdrawal exceed the number of AMC Preferred Equity Units that represent the number of whole shares of Preferred Stock
to be withdrawn, the Depositary will deliver to that holder at the same time a new depositary receipt evidencing the excess number of
AMC Preferred Equity Units.
Amendment and Termination of the Deposit Agreement
The Company may amend the form of depositary
receipt evidencing the AMC Preferred Equity Units and any provision of the Deposit Agreement at any time and from time to time by agreement
with the Depositary without the consent of the holders of depositary receipts. However, any amendment that will materially and adversely
alter the rights of the holders of depositary receipts will not be effective unless the holders of at a majority of the affected AMC
Preferred Equity Units then outstanding approve the amendment. Every holder of an outstanding depositary receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such depositary receipts, to consent and agree to such amendment and
to be bound by the Deposit Agreement as amended thereby.
The Company will make no amendment that impairs
the right of any holder of AMC Preferred Equity Units to receive shares of the Preferred Stock and any money or other property represented
by those AMC Preferred Equity Units, except in order to comply with mandatory provisions of applicable law or the rules and regulations
of any governmental body, agency, or commission, or applicable securities exchange.
The Deposit Agreement may be terminated:
| · | if
all outstanding AMC Preferred Equity Units issued under the Deposit Agreement have been cancelled,
upon conversion of the Preferred Stock or otherwise; |
| · | if
there shall have been a final distribution made in respect of the Preferred Stock in connection
with any liquidation, dissolution or winding up of the Company and such distribution shall
have been distributed to the holders of depositary receipts representing AMC Preferred Equity
Units pursuant to the terms of the Deposit Agreement; or |
| · | upon
the consent of holders of depositary receipts representing in the aggregate not less than
two-thirds of the AMC Preferred Equity Units outstanding. |
Resignation and Removal of Depositary
The Depositary may resign at any time by delivering
to the Company written notice of its election to do so at least forty-five (45) days prior to such resignation. The Company also may,
at any time, remove the Depositary by providing at least forty-five (45) days prior written notice. The Company will use its reasonable
best efforts to appoint the successor depositary within forty-five (45) days after delivery of the notice of resignation or removal.
The successor depositary must be a bank or trust company having its principal office in the United States and having a combined capital
and surplus of at least $50 million.
Form and Notices
The Preferred Stock will be issued in registered
form to the Depositary, and the AMC Preferred Equity Units will be issued in book-entry only form through DTC, as described under “Registration
and Settlement – Book Entry System” below. The Depositary will forward to the holders of AMC Preferred Equity Units all reports,
notices, and communications from the Company that are delivered to the Depositary and that the Company is required to furnish to the
holders of the Preferred Stock.
Miscellaneous
The descriptions of the terms of the Deposit
Agreement and the AMC Preferred Equity Units set forth herein are qualified in their entirety by reference to the full text of the Deposit
Agreement, which is included as Exhibit 4.1 to this Registration Statement on Form 8-A and are incorporated by reference herein.
Description
of the Preferred Stock
Effect of Stockholder Approval
If we obtain the requisite stockholder approval
of the Common Stock Amendment, then upon the terms and in the manner described below under “– Conversion Procedures,”
at 9:30 a.m., New York City time, on the first business day following the effectiveness of the Common Stock Amendment, all of the issued
and outstanding shares of Preferred Stock will automatically convert in full with no action on the part of holders into Common Stock
at the then-applicable conversion rate and the Preferred Stock will cease to exist.
Automatic Conversion of Preferred Stock
Upon
the terms and in the manner described below under “– Conversion Procedures,” each issued and outstanding share of Preferred
Stock will automatically convert in full into shares of Common Stock at the conversion rate, with no action on the part of holders, at
9:30 a.m., New York City time, on the first business day following the effectiveness of the Common Stock Amendment (the “Conversion
Date”). The initial conversion rate is one hundred (100) shares of Common Stock for each share of Preferred Stock (or one (1) share
of Common Stock for each AMC Preferred Equity Unit). Such conversion rate is subject to adjustment as described below under “–
Anti-Dilution Adjustments.” Cash will be paid in lieu of any fractional shares of Common Stock that would be issued on conversion
as described below under “– Fractional Shares.”
General
The Preferred Stock will be a series (Series A)
of the Company’s authorized preferred stock. The Depositary will be the sole holder of shares of the Preferred Stock. The holders
of AMC Preferred Equity Units will be required to exercise their proportional rights in the Preferred Stock through the Depositary.
Conversion Procedures
As promptly as practicable after the Conversion
Date, the Company shall provide written notice of the conversion to each holder of Preferred Stock stating the Conversion Date and the
number of shares of Common Stock issued upon conversion of each share of Preferred Stock held of record by such holder and subject to
conversion. Immediately upon conversion, the rights of the holder of Preferred Stock with respect to the shares of Preferred Stock so
converted shall cease and the persons entitled to receive the shares of Common Stock upon the conversion of such shares of Preferred
Stock shall be treated for all purposes as having become the record and beneficial owners of such shares of Common Stock. In the event
that a holder of Preferred Stock shall not by written notice designate the name in which shares of Common Stock and/or cash, securities
or other property (including payments of cash in lieu of fractional shares) to be issued or paid upon conversion of shares of Preferred
Stock should be registered or paid or the manner in which such shares should be delivered, the Company shall be entitled to register
and deliver such shares, and make such payment, in the name of such holder and in the manner shown on the records of the Company.
The Company shall not be required to reserve
or keep available, out of its authorized but unissued shares of Common Stock, or to have sufficient authorized shares of Common Stock
to cover, the number of shares of Common Stock that would be required to effect the conversion of all of the then-outstanding shares
of Preferred Stock prior to the approval of the Common Stock Amendment.
All shares of Common Stock which may be issued
upon conversion of the shares of Preferred Stock will, upon issuance by the Company, be validly issued, fully paid and non-assessable.
Effective immediately prior to the Conversion
Date, dividends shall no longer be declared on the shares of Preferred Stock and such shares of Preferred Stock shall cease to be outstanding,
in each case, subject to the rights of holders of Preferred Stock to receive any declared and unpaid dividends on such shares and any
other payments to which they are otherwise entitled to as further described herein and in the Certificate of Designations.
Fractional Shares
No fractional shares of Common Stock shall be
issued upon conversion of shares of Preferred Stock. If more than one share of Preferred Stock shall be surrendered for conversion at
any one time by the same holder of Preferred Stock, the number of full shares of Common Stock issuable upon conversion thereof shall
be computed on the basis of the aggregate number of shares of Preferred Stock so surrendered. Instead of any fractional shares of Common
Stock which would otherwise be issuable upon conversion of any shares of Preferred Stock, the Company shall pay an amount in cash (rounded
to the nearest cent) equal to the interest in the net proceeds from the sale in the open market by the applicable conversion agent of
the aggregate fractional shares of Common Stock that otherwise would have been issuable upon conversion of the Preferred Stock.
Dividends
Dividends on the Preferred Stock will not be
mandatory. Holders of the Preferred Stock will be entitled to receive, when, as, and if declared by the Company’s board of directors
or any duly authorized committee of the Company’s board of directors, but only out of assets legally available therefor, all cash
dividends or distributions (including, but not limited to, regular quarterly dividends) declared and paid or made in respect of the shares
of Common Stock, at the same time and on the same terms as holders of Common Stock, in an amount per share of Preferred Stock equal to
the product of (x) the then-applicable conversion rate then in effect and (y) any per share dividend or distribution, as applicable,
declared and paid or made in respect of each share of Common Stock (the “Common Equivalent Dividend Amount”), and
(ii) the Board or any duly authorized committee thereof may not declare and pay any such cash dividend or make any such cash distribution
in respect of Common Stock unless the Board or any duly authorized committee of the Board declares and pays to the holders of Preferred
Stock, at the same time and on the same terms as holders of Common Stock, the Common Equivalent Dividend Amount per share of Preferred
Stock. Notwithstanding any provision to the contrary in the Certificate of Designations with respect to dividends, the holders of Preferred
Stock shall not be entitled to receive any cash dividend or distribution made with respect to the Common Stock after the issuance of
the Preferred Stock where the record date for determination of holders of Common Stock entitled to receive such dividend or distribution
occurs prior to the issuance of the Preferred Stock.
Each dividend or distribution declared and paid
as described hereunder will be payable to holders of record of Preferred Stock as they appear in the records of the Company at the close
of business on the same day as the record date for the corresponding dividend or distribution to the holders of shares of Common Stock.
Except as set forth in the Certificate of Designations,
the Company shall have no obligation to pay, and the holders of Preferred Stock shall have no right to receive, dividends at any time,
including with respect to dividends with respect to Parity Securities (as defined herein) or any other class or series of authorized
preferred stock of the Company. To the extent the Company declares dividends on the Preferred Stock and on any Parity Securities but
does not make full payment of such declared dividends, the Company will allocate the dividend payments on a pro rata basis among the
holders of the shares of Preferred Stock and the holders of any Parity Securities then outstanding. For purposes of calculating the allocation
of partial dividend payments, the Company will allocate dividend payments on a pro rata basis among the holders of Preferred Stock and
the holders of any Parity Securities so that the amount of dividends paid per share on the Preferred Stock and such Parity Securities
shall in all cases bear to each other the same ratio that payable dividends per share on the shares of the Preferred Stock and such Parity
Securities (but without, in the case of any noncumulative preferred stock, accumulation of dividends for prior dividend periods) bear
to each other. The foregoing right shall not be cumulative and shall not in any way create any claim or right in favor of holders of
Preferred Stock in the event that dividends have not been declared or paid in respect of any prior calendar quarter.
No interest or sum of money in lieu of interest
will be payable in respect of any dividend payment or payments on Preferred Stock or on such Parity Securities that may be in arrears.
Holders of Preferred Stock shall not be entitled
to any dividends, whether payable in cash, securities or other property, other than dividends (if any) declared and payable on Preferred
Stock as specified hereunder.
Notwithstanding any provision in the Certificate
of Designations to the contrary, holders of Preferred Stock shall not be entitled to receive any dividends for any calendar quarter in
which the Conversion Date occurs, except to the extent that any such dividends have been declared by the Company’s board of directors
or any duly authorized committee of the Company’s board of directors and the record date for such dividend occurs prior to the
Conversion Date.
A holder of an AMC Preferred Equity Unit, which
is a depositary share in the Preferred Stock, will not be entitled to receive dividends on the Preferred Stock declared by the Company’s
board of directors unless such holder is a holder of record of the depositary share as of the close of business on the record date for
such dividend.
Voting Rights
The holders of the Preferred Stock will vote
together with the holders of the Common Stock (and any other securities that vote together or that may in the future vote together with
the holders of the Common Stock) on all matters upon which the holders of Common Stock are entitled to vote, including the Common Stock
Amendment, except for those matters which under the Certificate of Incorporation or Delaware law would require the vote of the Preferred
Stock or the Common Stock voting as a separate voting group. Holders of the Preferred Stock will be entitled to one hundred (100) votes
per share (or one (1) vote per AMC Preferred Equity Unit), or such other number of votes per share equal to the number of shares
of Common Stock into which a share of Preferred Stock (and AMC Preferred Equity Units) would convert at the then-applicable conversion
rate, subject to adjustments as described herein. The Preferred Stock will not otherwise have voting rights except as specifically required
by Delaware law.
Holders of Preferred Stock shall not be entitled
to vote together with the Common Stock with respect to any matter at a meeting of the stockholders of the Company, which under applicable
law or the Certificate of Incorporation requires a separate class vote.
Ranking and Liquidation Rights
With respect to any dividends or distributions
(including, but not limited to, regular quarterly dividends) declared by the Company’s board of directors, the Preferred Stock
shall rank (i) senior to any class or series of capital stock of the Company hereafter created specifically ranking by its terms
junior to any Preferred Stock (“Junior Securities”); (ii) on parity with the Common Stock and any class
or series of capital stock of the Company created specifically ranking by its terms on parity with the Preferred Stock (“Parity
Securities”); and (iii) junior to any class or series of capital stock of the Company hereafter created specifically
ranking by its terms senior to any Preferred Stock (“Senior Securities”). With respect to distributions of assets
upon liquidation, dissolution or winding up of the Company, whether voluntarily or involuntarily, except as set forth in (b) below,
the Preferred Stock shall rank (i) senior to all of the Common Stock; (ii) senior to any class or series of Junior Securities;
(iii) on parity with any class or series of Parity Securities; and (iv) junior to any class or series of Senior Securities.
Subject to any superior liquidation rights of
the holders of any Senior Securities of the Company and the rights of the Company’s existing and future creditors, upon any voluntary
or involuntary liquidation, dissolution or winding up of the Company, each holder of the Preferred Stock shall be entitled to be paid
out of the assets of the Company legally available for distribution to stockholders, prior and in preference to any distribution of any
of the assets or surplus funds of the Company to the holders of the Common Stock and Junior Securities and pari passu with any
distribution to the holders of Parity Securities: (i) an amount equal to the sum of the Liquidation Preference for each share of
Preferred Stock held by such holder and an amount equal to any dividends declared but unpaid thereon plus (ii) the amount the holders
of Preferred Stock would have received if, immediately prior to such voluntary or involuntary liquidation, dissolution or winding up
of the Company, the Preferred Stock had converted into Common Stock (based on the then-applicable conversion rate and without giving
effect to any limitations on conversion set forth herein) and if such amount exceeds the amount set forth in (i) above, minus the
amount set forth in (i) above, which shall be paid out pari passu with any distribution to holders of the Common Stock and
Parity Securities. Holders shall not be entitled to any further payments in the event of any such voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company other than what is expressly provided for in the Certification of Designations
and will have no right or claim to any of the Company’s remaining assets.
The sale, conveyance, exchange or transfer (for
cash, shares of stock, securities or other consideration) or all or substantially all of the property and assets of the Company shall
not be deemed a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, nor shall the merger,
consolidation or any other business combination transaction of the Company into or with any other corporation or person or the merger,
consolidation or any other business combination of any other corporation or person into or with the Company be deemed to be a voluntary
or involuntary dissolution, liquidation or winding up of the affairs of the Company.
Anti-Dilution Adjustments
Initially, each share of Preferred Stock will
convert into Common Stock at a rate of one hundred (100) shares of Common Stock for each share of Preferred Stock (or one (1) share
of Common Stock for one (1) AMC Preferred Equity Unit), subject to adjustment as set forth herein.
If the Company issues solely shares of Common
Stock as a dividend or distribution on all or substantially all shares of the Common Stock, or if the Company effects a stock split,
stock combination or other similar recapitalization of the Common Stock (in each case excluding an issuance solely pursuant to a reorganization
event), then the conversion rate will be adjusted based on the following formula:
where:
|
CR0 |
= |
the conversion rate in
effect immediately before the close of business on the record date or effective date, as applicable, for such dividend, distribution,
stock split, stock combination or other similar recapitalization, as applicable; |
|
|
|
|
|
CR1 |
= |
the conversion rate in
effect immediately after the close of business on such record date or effective date, as applicable; |
|
|
|
|
|
OS0 |
= |
the number of shares of
Common Stock outstanding immediately before the close of business on such record date or effective date, as applicable, without giving
effect to such dividend, distribution, stock split, stock combination or other similar recapitalization; and |
|
|
|
|
|
OS1 |
= |
the number of shares of
Common Stock outstanding immediately after giving effect to such dividend, distribution, stock split, stock combination or other
similar recapitalization. |
If any distribution, dividend, stock split, stock
combination or other similar recapitalization of the Common Stock is declared or announced, but not so paid or made, then the conversion
rate will be readjusted, effective as of the date the Company’s board of directors, or any officer acting pursuant to authority
conferred by the Company’s board of directors, determines not to pay such distribution or dividend or to effect such stock split,
stock combination or other similar recapitalization, to the conversion rate that would then be in effect had such dividend, distribution,
stock split, stock combination or similar recapitalization not been declared or announced.
Adjustments
In the event of:
| · | the
consolidation, merger or conversion of the Company with or into another person in each case
pursuant to which the Common Stock will be converted into cash, securities, or other property
of the Company or another person; |
| · | any
sale, transfer, lease, or conveyance to another person of all or substantially all of the
consolidated assets of the Company and its subsidiaries, taken as a whole, in each case pursuant
to which Common Stock will be converted into cash, securities, or other property; or |
| · | any
reclassification of Common Stock into securities other than Common Stock, |
each of which is referred to as a “reorganization
event,” each share of the Preferred Stock outstanding immediately prior to such reorganization event will, without the consent
of the holders of the Preferred Stock, automatically convert into the kind of securities, cash, and other property receivable in such
reorganization event by a holder of the shares of Common Stock into which such share of Preferred Stock was convertible immediately prior
to such reorganization event in exchange for such shares of Common Stock. In the event that holders of the shares of Common Stock have
the opportunity to elect the form of consideration to be received in such reorganization event, the consideration that the holders of
the Preferred Stock are entitled to receive will be deemed to be the weighted average of the types and amounts of consideration actually
received, per share of Common Stock, by the holders of the Company’s Common Stock, unless holders of Preferred Stock have the opportunity
to elect the form of consideration to be received in such reorganization event.
The Company (or any successor) shall, within
20 days of the occurrence of any reorganization event, provide written notice to the holders of Preferred Stock of such occurrence of
such event and of the type and amount of the cash, securities or other property that such holders are entitled to.
Other than with respect to an adjustment as described
herein, if at any time prior to the Conversion Date, the Company issues to all holders of the Common Stock shares of securities or assets
of the Company (other than shares of Common Stock or cash) as a dividend on the Common Stock, or the Company issues to all holders of
the Common Stock certain rights or warrants entitling them for a period of 60 days or less to purchase shares of Common Stock at less
than the current market value of the Common Stock at that time, or the Company purchases shares of Common Stock pursuant to a tender
offer or exchange offer generally available to holders of Common Stock (subject to customary securities laws limitations) at above the
current market value of the Common Stock at that time, and in each such case the record date with respect to such event (or the date
such event is effective, as the case may be) occurs on or after the date of issuance of the Preferred Stock and prior to the Conversion
Date (each, an “Adjustment Event”), then the Company will make such provision (i) to extend such tender offer
or exchange offer on equivalent terms to holders of Preferred Stock or (ii) as is necessary so that the holder of Preferred Stock
receives (upon cancellation of such shares of Preferred Stock in the event of a tender offer or exchange offer) the same dividend or
other asset or property, if any, as it would have received in connection with such Adjustment Event if it had been the holder on the
record date (or the date such event is effective, as the case may be) of the number of shares of Common Stock into which the shares of
Preferred Stock held by such holder are then convertible, or, to the extent that it is not reasonably practicable for the Company to
make such provision, the then-applicable conversion rate or other terms of the Preferred Stock shall be adjusted to provide such holder
with an economic benefit comparable to that which it would have received had such provision been made. The foregoing shall not apply
to the extent that any holder of Preferred Stock participates, or is permitted to participate, on a pro rata as-converted basis with
the holders of Common Stock. Amounts resulting from any calculation as described under “– Anti-Dilution Adjustments”
or this “– Conversion Procedures” will be rounded to the nearest 1/10,000th.
Redemption
The Preferred Stock will not be redeemable or
subject to any sinking fund or similar provision.
Preemptive Rights
The Preferred Stock will not have any preemptive
rights.
Anti-Takeover Effects of Certain Provisions
of the Certificate of Incorporation, the Bylaws, and Delaware Law
Certain provisions of the Certificate of Incorporation
and the Company’s Third Amended and Restated Bylaws (the “Bylaws”) may be considered to have an anti-takeover
effect and may delay or prevent a tender offer or other corporate transaction that a stockholder might consider to be in its best interest,
including those transactions that might result in payment of a premium over the market price for our shares. These provisions are designed
to discourage certain types of transactions that may involve an actual or threatened change of control of the Company without prior approval
of the Company’s board of directors. These provisions are meant to encourage persons interested in acquiring control of the Company
to first consult with the Company’s board of directors to negotiate terms of a potential business combination or offer. For example,
the Certificate of Incorporation and Bylaws:
| · | provide
for a classified board of directors, pursuant to which the Company’s board of directors
is divided into three classes whose members serve three-year staggered terms; |
| · | provide
that the size of the Company’s board of directors will be set by members of the board
of directors, and any vacancy on the board of directors, including a vacancy resulting from
an enlargement of the board of directors, may be filled only by vote of a majority of the
directors then in office; |
| · | do
not permit stockholders to take action by written consent; |
| · | provide
that, except as otherwise required by law, special meetings of stockholders can only be called
by the Company’s board of directors; |
| · | establish
an advance notice procedure for stockholder proposals to be brought before an annual meeting
of stockholders, including proposed nominations of candidates for election to the Company’s
board of directors; |
| · | limit
consideration by stockholders at annual meetings to only those proposals or nominations specified
in the notice of meeting or brought before the meeting by or at the direction of the Company’s
board of directors or by a stockholder of record on the record date for the meeting who is
entitled to vote at the meeting and who has delivered timely written notice in proper form
to our secretary of the stockholder’s intention to bring such business before the meeting; |
| · | authorize
the issuance of “blank check” preferred stock that could be issued by the Company’s
board of directors to increase the number of outstanding shares or establish a stockholders
rights plan making a takeover more difficult and expensive; and |
| · | do
not permit cumulative voting in the election of directors, which would otherwise allow less
than a majority of stockholders to elect director candidates. |
The Certificate of Incorporation expressly states
that the Company has elected not to be governed by Section 203 of the Delaware General Corporate Law, which prohibits a publicly
held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period
of three years after the time the stockholder became an interested stockholder, subject to certain exceptions, including if, prior to
such time, the board of such corporation approved the business combination or the transaction which resulted in the stockholder becoming
an interested stockholder. “Business combinations” include mergers, asset sales and other transactions resulting in a financial
benefit to the “interested stockholder.” Subject to various exceptions, an “interested stockholder” is a person
who, together with his or her affiliates and associates, owns, or within three years did own, 15% or more of the corporation’s
outstanding voting stock. These restrictions generally prohibit or delay the accomplishment of mergers or other takeover or change-in-control
attempts that are not approved by a company’s board. Although the Company has elected to opt out of the statute’s provisions,
the Company could elect to be subject to Section 203 in the future.
Common Stock Rights
For a description of the rights of holders of
Common Stock to be delivered upon conversion of the Preferred Stock, see “Description of Capital Stock” included in the “Description
of the registrant’s securities registered pursuant to Section 12 of the Securities Exchange Act of 1934” filed as Exhibit 4.5
to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021.
Miscellaneous
The Company shall not be required to reserve
or keep available, out of the authorized but unissued Common Stock, or have sufficient authorized Common Stock to cover, the shares of
Common Stock issuable upon the conversion of the Preferred Stock prior to the applicable conversion date. Any shares of the Preferred
Stock converted into shares of Common Stock or otherwise reacquired by the Company shall resume the status of authorized and unissued
preferred shares, undesignated as to series, and shall be available for subsequent issuance.
The descriptions of the terms of the Preferred
Stock set forth herein are qualified in their entirety by reference to the full text of the Certificate of Designations, which is included
as Exhibit 3.4 to this Registration Statement on Form 8-A and are incorporated by reference herein.
Additional Shares of Preferred Stock and Classes
or Series of Stock
Notwithstanding anything to the contrary set
forth in the Certificate of Incorporate or the Certificate of Designations, the Company’s board of directors or any authorized
committee of the board of directors, without the vote of the holders of Preferred Stock (including the holders of the related AMC Preferred
Equity Units), may increase or decrease the number of authorized shares of Preferred Stock or other stock ranking junior or senior to,
or on parity with, the Preferred Stock as to dividends and the distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company.
Registration and Settlement
Book-Entry System
The Preferred Stock will be issued in book-entry
only form to Computershare Trust Company, N.A., as depositary and sole holder of the Preferred Stock. Individual Preferred Stock certificates
will not be issued to each holder of Preferred Stock.
Owners of beneficial interests in the AMC Preferred
Equity Units will hold their AMC Preferred Equity Units through the book-entry settlement system of DTC, and if requested by the Company
or DTC, such AMC Preferred Equity Units may be represented by a global depositary receipt, deposited with and held in the name of DTC,
or its nominee. The AMC Preferred Equity Units of record holders will be deposited with and held in an account at Computershare Trust
Company, N.A. In order to own a beneficial interest in the AMC Preferred Equity Units, a holder must be an organization that participates
in DTC or have an account with an organization that so participates, including Euroclear Bank, SA/NV, as operator of the Euroclear System,
and Clearstream Banking, société anonyme, Luxembourg.
Owners of beneficial interests in AMC Preferred
Equity Units held through DTC, or its nominee, if applicable, will not be entitled to have AMC Preferred Equity Units registered in their
names, nor will such owners receive or be entitled to receive physical delivery of the AMC Preferred Equity Units in definitive form,
or be considered the owners or holders of AMC Preferred Equity Units under the Deposit Agreement including for purposes of receiving
any reports or notices delivered by the Company unless DTC ceases to make its book-entry settlement system available as described below.
Accordingly, each person owning a beneficial interest in such AMC Preferred Equity Units, must rely on the procedures of DTC and, if
that person is not a participant, on the procedures of the participant through which that person owns its beneficial interest, in order
to exercise or sell any rights of a holder of AMC Preferred Equity Units.
If DTC ceases to make its book-entry settlement
system available, the Company will instruct the Depositary to make other arrangements for book-entry settlement. If the AMC Preferred
Equity Units are not eligible for book-entry form, the Depositary shall provide AMC Preferred Equity Units in certificated form registered
in the names of the beneficial owners. Once AMC Preferred Equity Units in certificated form are issued, the underlying Preferred Stock
may be withdrawn from the depositary arrangement upon surrender of AMC Preferred Equity Units at the corporate trust office of the Depositary
and upon payment of the taxes, charges, and fees provided for in the Deposit Agreement. Subject to the Deposit Agreement, the holders
of such AMC Preferred Equity Units will receive the appropriate number of shares of Preferred Stock and any money or property represented
by the AMC Preferred Equity Units.
Only whole shares of the Preferred Stock may
be withdrawn. If a holder holds an amount other than a whole multiple of one-hundred (100) AMC Preferred Equity Units, the Depositary
will deliver, along with the withdrawn shares of the Preferred Stock, a new depositary receipt evidencing the excess number of AMC Preferred
Equity Units. Holders of withdrawn shares of the Preferred Stock will not be entitled to redeposit those shares or to receive a new depositary
receipt evidencing AMC Preferred Equity Units therefor.
Same Day Settlement
As long as the AMC Preferred Equity Units are
held through DTC, or its nominee, if applicable, the AMC Preferred Equity Units will trade in the DTC Same-Day Funds Settlement System.
DTC requires secondary market trading activity in the AMC Preferred Equity Units to settle in immediately available funds. This requirement
may affect trading activity in the AMC Preferred Equity Units.
Payment of Dividends
The Company will pay dividends, if any, on the
Preferred Stock represented by AMC Preferred Equity Units in book-entry form to the Depositary. In turn, the Depositary will deliver
the dividends to record holders, including DTC, or its nominee, in accordance with the arrangements then in place between the Depositary
and DTC. Generally, DTC will be responsible for crediting the dividend payments it receives from the depositary to the accounts of DTC
participants, and each participant will be responsible for disbursing the dividend payment for which it is credited to the holders that
it represents. As long as the AMC Preferred Equity Units, are held through DTC, or its nominee, if applicable, the Company will make
all dividend payments in immediately available funds. Computershare will pay record holders directly.
In the event the AMC Preferred Equity Units are
issued in certificated form, dividends generally will be paid by check mailed to the holders on the applicable record date at the address
appearing on the security register.
Notices
Any notices required to be delivered to a holder
of AMC Preferred Equity Units will be delivered by the Company to the Depositary, and the Depositary will, upon the Company's written
instruction, transmit such notice to record holders. Notices to holders of AMC Preferred Equity Units held through DTC, or its nominee,
if applicable, will be given by the Depositary to DTC for communication to its participants.
If the Preferred Stock are issued as individual
Preferred Stock certificates or the depositary receipts are issued in certificated form, notices to each holder will be given, as applicable,
by mail to the addresses of the respective holders as they appear on the security register.
Item 2. Exhibits.
Exhibit
Number |
|
Exhibit Description |
3.1 |
|
Third
Amended and Restated Certificate of Incorporation of AMC Entertainment Holdings, Inc. (incorporated by reference from Exhibit 3.1
to the Company’s Current Report on Form 8-K (File No. 1-33892) filed on December 23, 2013). |
3.2 |
|
Certificate
of Amendment to the Third Amended and Restated Certificate of Incorporation of AMC Entertainment Holdings, Inc., dated as of
July 29, 2020 (incorporated by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K (File
No. 1-33892) filed on July 31, 2020). |
3.3 |
|
Certificate
of Amendment to the Third Amended and Restated Certificate of Incorporation of AMC Entertainment Holdings, Inc. dated as of
January 25, 2021 (incorporated by reference from Exhibit 3.1 to AMC’s Current Report on Form 8-K (File No. 1-33892)
filed on January 25, 2021). |
3.4 |
|
Certificate
of Designations for the Series A Convertible Participating Preferred Stock (incorporated by reference from Exhibit 3.1
to the Company’s Current Report on Form 8-K (File No. 001-33892) filed on August 4, 2022). |
4.1 |
|
Deposit
Agreement among AMC Entertainment Holdings, Inc., Computershare Inc. and Computershare Trust Company, N.A., dated as of August 4,
2022 (incorporated by reference from Exhibit 4.1 to the Company’s Current Report on Form 8-K (File No. 001-33892)
filed on August 4, 2022). |
4.2 |
|
Form of
Depositary Receipt (incorporated by reference from Exhibit 4.2 to the Company’s Current Report on Form 8-K (File
No. 001-33892) filed on August 4, 2022). |
SIGNATURE
Pursuant to the requirements of Section 12
of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
Date:
August 4, 2022 |
AMC
Entertainment Holdings, Inc. |
|
|
|
|
By: |
/s/ Sean D. Goodman |
|
Name: |
Sean D. Goodman |
|
Title: |
Executive Vice President and Chief Financial Officer |
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