Exhibit 10.1


 


SECOND AMENDED AND RESTATED


 


CERTIFICATE OF INCORPORATION


 


OF


 


MARQUEE HOLDINGS INC.


 


A DELAWARE CORPORATION


 


 


Adopted in accordance with the
 provisions of Sections 242 and 245 of
the

General Corporation Law of the State of Delaware


 


 


The Certificate of Incorporation of Marquee Holdings
Inc. (the “Corporation”) was originally filed with the Secretary of
State of the State of Delaware (the “Delaware Secretary of State”) on July 16,
2004 and was amended and restated on July 21, 2004 and amended again on December 22,
2004 (as so amended, the “Original Certificate of Incorporation”).  The Corporation is filing this Second Amended
and Restated Certificate of Incorporation of the Corporation (this “Second
Amended and Restated Certificate of Incorporation”), which has been duly
adopted by all necessary action of the board of directors (the “Board”)
and the stockholders of the Corporation, pursuant to Section 242 and Section 245
of the Delaware General Corporation Law (as the same may be amended from time
to time, the “DGCL”) to amend and restate the Original Certificate of
Incorporation in its entirety.


 


ARTICLE FIRST


 


The name of this Corporation
shall be: Marquee Holdings Inc.


 


ARTICLE SECOND


 


The address of the
Corporation’s registered office in the State of Delaware is to be located at 1209
Orange Street, Wilmington, County of New Castle, Delaware 19801 and the name of
its registered agent at such address is The Corporation Trust Company.


 


ARTICLE THIRD


 


The purpose or purposes of the corporation shall be
to engage in any lawful act or activity for which corporations may be organized
under the DGCL.


 

















 


ARTICLE FOURTH


 


Section 1.               The total number of shares
of capital stock which the Corporation is authorized to issue is 13,375,000
shares, of which (a) 1,500,000 shares shall be Class A-1 Common
Stock, par value $0.01 per share (the “Class A-1 Common Stock”), (b) 1,500,000
shares shall be Class A-2 Common Stock, par value $0.01 per share (the “Class A-2
Common Stock” and together with the Class A-1 Common Stock, the “Class A
Common Stock”), (c) 1,500,000 shares shall be Class L-1 Common
Stock, par value $0.01 per share (the “Class L-1 Common Stock”), (d) 1,500,000
shares shall be Class L-2 Common Stock, par value $0.01 per share (the “Class L-2
Common Stock” and together with the Class L-1 Common Stock, the “Class L
Common Stock”), (e) 375,000 shares shall be Class N Common Stock,
par value $0.01 per share (the “Class N Common Stock”) and (f) 7,000,000
shares shall be Common Stock, par value $0.01 per share (the “Residual
Common Stock” and together with the Class A Common Stock, Class L
Common Stock and Class N Common Stock, the “Stock”).  All such shares of Stock shall be issued in
accordance with applicable law as fully paid and non-assessable shares, and absent
further agreement to the contrary between the Corporation and the holder
thereof, the holder thereof shall not be liable to the Corporation for any
further payments in respect thereof.


 


Section 2.               The preferences, privileges,
designations and relative rights of the shares of each class of Stock and the
qualifications, limitations or restrictions thereof shall be as set forth in
this Article Fourth.    Except as otherwise provided in this Second
Amended and Restated Certification of Incorporation (including in Article Fifth)
or as otherwise required by applicable law, all shares of Stock shall be
identical in all respects and shall entitle the holders thereof to the same
rights and privileges, subject to the same qualifications, limitations and
restrictions.


 


Section 3.               Except as otherwise may be provided
in this Second Amended and Restated Certificate of Incorporation (including in Article Fifth)
or as required by applicable law, (a) the issued and outstanding shares of
Residual Common Stock, Class A Common Stock and Class L Common Stock
shall be entitled to one vote per share and the respective holders thereof shall
vote as a single class on all matters to be voted on by the stockholders of the
Corporation; provided, however, that any matters to be voted on
by any class or classes of Stock voting as a separate class from the other
classes of Stock shall be determined by the holders of a majority of the issued
and outstanding shares held by such separate class of Stock on a one vote per
share basis, and (b) the shares of Class N Common Stock shall not
have any voting rights and the holders thereof shall not be entitled to vote on
any matters to be voted on by the stockholders of the Corporation.


 


Section 4.               Reclassification
and Conversion.


 


(a)           Each share
of Common Stock, par value $0.01 per share, of the Corporation issued and
outstanding (the “Existing Common Stock”) as of 10:00 a.m. on the
date of the filing of this Second Amended and Restated Certificate of
Incorporation with the Delaware Secretary of State (the “Effective Time”)
shall automatically be reclassified, changed and converted into one half of a
share of Class A-1 Common Stock and one half of a share of Class A-2
Common Stock (a “Class A Conversion”) at the Effective Time.  In connection with the Class A
Conversion, the certificates representing shares of Existing Common Stock shall
be surrendered by the holders thereof at the principal office of the
Corporation at any time during normal business hours.  The issuance by the Corporation of certificates
for shares of Class A Common Stock in respect of the Class A
Conversion shall be made without charge to the holders of shares of Existing
Common Stock being converted for any issuance tax or other cost incurred by the
Corporation in connection with the Class A Conversation and all shares of Class A
Common Stock issued in connection with the Class A Conversion shall be
fully paid and non-assessable, free and clear from all taxes, liens and
charges.  The Corporation shall not close
its books against the


 


2

















 


transfer of shares of Stock in any
manner which would interfere with the timely consummation of the Class A
Conversion.


 


(b)           Each share
of Class A Common Stock, Class L Common Stock and Class N Common
Stock shall automatically convert into one share of Residual Common Stock on a
one-for-one basis (a “Residual Conversion”) (a) upon the written
consent of each Principal Investor (as defined below) or (b) immediately
prior to the consummation of an Initial Public Offering (as defined below).  In connection with a Residual Conversion, the
certificates representing shares of Stock being converted into shares of
Residual Common Stock shall be surrendered by the holders thereof at the
principal office of the Corporation at any time during normal business
hours.  The issuance by the Corporation of
certificates for shares of Residual Common Stock in respect of a Residual Conversion
shall be made without charge to the holders of shares of Stock being converted
for any issuance tax or other cost incurred by the Corporation in connection
with a Residual Conversation and all shares of Residual Common Stock issued in
connection with a Residual Conversion shall be fully paid and non-assessable,
free and clear from all taxes, liens and charges.  The Corporation shall not close its books
against the transfer of shares of Stock in any manner which would interfere
with the timely consummation of a Residual Conversion.


 


Section 5.               If the Corporation in any
manner subdivides or combines the outstanding shares of one class of Stock, the
outstanding shares of the other classes of Stock shall be proportionately
subdivided or combined in a similar manner.


 


Section 6.               Dividends may be declared
and paid or set apart for payment upon the Stock out of any assets or funds of
the Corporation legally available for the payment of dividends, and the holders
of each class of Stock shall be entitled to participate in such dividends
ratably on a per share basis; provided, that if dividends are declared which are
payable in shares of Stock, dividends shall be declared which are payable at
the same rate on each class of Stock and the dividends payable on shares of a
class of Stock shall be payable to holders of that class of Stock in shares of
that class of Stock.  Dividends may not
be declared with respect to any class of Stock unless dividends payable at the
same rate and in the same form (subject to the proviso to the immediately
preceding sentence) are simultaneously declared with respect to the other
classes of Stock.


 


Section 7.               Upon any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
the net assets of the Corporation shall be distributed to the holders of Stock pro rata based on the number of shares of Stock held
by the holders of the Stock.


 


Section 8.               In the case of any reorganization
or consolidation of the Corporation with one or more other Persons or the
merger of the Corporation with another Person (other than a merger in which the
Corporation is the survivor and the Stock remains outstanding), each holder of
a share of one class of Stock shall be entitled to receive with respect to such
share the same kind and amount of shares of stock and other securities and
property (including cash) receivable upon such reorganization, consolidation or
merger by a holder of the other classes of Stock; provided, that the
terms of such reorganization, consolidation or merger may provide for the
receipt by the holders of different classes of Stock of stock with disparate
voting power and rights to elect directors, in each case, commensurate with the
relative voting powers and rights to elect directors of the different classes
of Stock.


 


Section 9.               For purposes of determining
the fair market value of the Class N Common Stock, neither the Corporation
nor the Board shall take into account the non-voting nature of the Class N
Common Stock and each share of Class N Common Stock shall be deemed to
have the same fair market value on a per share basis as the fair market value
of all other shares and all other classes of common stock of the Corporation.


 


3

















 


ARTICLE FIFTH


 


Section 1.               Notwithstanding any other
provision of this Second Amended and Restated Certificate of Incorporation,
except as otherwise required by applicable law, each of the following actions (the
“Material Actions”) by the Corporation or any of its Subsidiaries (as
defined below) shall require the prior written approval of the Requisite
Stockholder Majority (as defined below) if at the time of the taking of such
Material Action the Investors (as defined below) collectively hold at least a
majority of the voting power of the then outstanding shares of Stock (and the
Corporation will not permit its Subsidiaries to take any such action without
such approval):


 


(a)           the sale
of all or substantially all of the Corporation or AMC Entertainment Inc., a
Delaware corporation and wholly-owned Subsidiary of the Corporation (“AMCE”),
whether by merger, consolidation, sale of all or substantially all of the
assets of the Corporation or AMCE, or otherwise;


 


(b)           the purchase,
exchange or other acquisition, whether in a single transaction or series of
related transactions or by any other manner (including by way of merger, consolidation,
business combination or similar transaction involving the Corporation or any of
its Subsidiaries), of any equity securities or assets of any Person (other than
a wholly-owned Subsidiary of the Corporation) with an aggregate value in excess
of $10.0 million;


 


(c)           the sale,
transfer, lease, license or other disposition of assets or properties with an
aggregate value in excess of $10.0 million;


 


(d)           any approval,
amendment or modification of the annual budget or annual plan (including the
annual expenditure budget) of the Corporation (the “Annual Budget”);


 


(e)           the
approval or making of any capital expenditures not specifically included in
Annual Budget and with a value in excess of $5.0 million;


 


(f)            other than
as contemplated in the Annual Budget, the entry into any contract with a value
in excess of $5.0 million or requiring payments in excess of
$2.0 million per annum;


 


(g)           the settlement
of any claim or litigation for an amount in excess of $2.5 million;


 


(h)           the establishment
of any Subsidiary, other than a wholly-owned Subsidiary, in which the
Corporation and/or any of its wholly-owned Subsidiaries invests (or commits to
invest), or becomes liable for, an aggregate amount in excess of
$2.0 million;


 


(i)            the
establishment or entrance into any joint ventures, partnerships, alliances or
similar arrangements in which the Corporation and/or its wholly-owned Subsidiaries
invests (or commits to invest), or becomes liable for, an aggregate amount in
excess of $5.0 million;


 


(j)            the
authorization or consummation of an Initial Public Offering or any public
offering of equity securities of the Corporation or any its Subsidiaries;


 


(k)           the hiring
of the Chief Executive Officer, Chief Financial Officer or Chief Operating Officer
of the Corporation or any significant Subsidiary of the Corporation (including
setting or amending the salary, benefits or other terms of any such officer’s
employment) or the termination of employment of the Chief Executive Officer,
Chief Financial Officer or Chief Operating Officer of the Corporation;


 


4

















 


(l)            issuance
or sale of equity securities or capital stock (or securities exercisable or
convertible into equity securities or capital stock) of the Corporation or any
of its Subsidiaries (other than issuances made to wholly-owned Subsidiaries of
the Corporation), including any issuance of Stock;


 


(m)          the dissolution,
liquidation, recapitalization (including any stock split, stock dividend,
reverse stock split or otherwise) or reorganization of the Corporation or any Subsidiary
of the Corporation (other than a reorganization or combination of any
wholly-owned Subsidiary of the Corporation with any other wholly-owned Subsidiary
of the Corporation);


 


(n)           the repurchase
or redemption of securities of the Corporation or any Subsidiary of the
Corporation or the declaration or payment of cash or other dividends or any
other distributions on the capital stock of the Corporation or any or its Subsidiaries,
other than dividends or other distributions by a wholly-owned Subsidiary of the
Corporation to the Corporation or any of its wholly-owned Subsidiaries;


 


(o)           the adoption
of, or amendment to or termination of, any equity incentive or other material
benefit program of the Corporation or any of its Subsidiaries (except for any
amendment required by law);


 


(p)           the incurrence
of indebtedness (other than ordinary course borrowings under revolving credit
facilities), or the assumption, guaranteeing, endorsement or otherwise becoming
responsible for any obligations of another Person, or the making of any
amendment to the maturity date, aggregate principal amount or interest rate of
any indebtedness, in each case, with recourse to any Investor or in excess of
$5.0 million or any refinancing of any such existing indebtedness; provided,
that the incurrence of any indebtedness with recourse to any Investor shall
also require the consent of such Investor;


 


(q)           any change
to tax elections or accounting methods of the Corporation or any of its
Subsidiaries;


 


(r)            the selection
of, or change in, the Corporation’s certified public accountants;


 


(s)           any waiver
or material amendment of (i) this Second Amended and Restated Certificate
of Incorporation or the by-laws of the Corporation or (ii) the debt
financing documents relating to indebtedness of the Corporation or any of its
Subsidiaries in excess of $5.0 million, other than amendments that would
discriminate against a particular Investor, which shall also require the
consent of each such Investor;


 


(t)            any material
change in the nature of the business of the Corporation and its Subsidiaries;


 


5

















 


(u)           the
entrance into any Affiliate Transaction (as defined below), provided,
that, in the case where such Affiliate Transaction (i) has an aggregate value
in excess of $5.0 million, (ii) is not permitted as an “affiliate
transaction” under any of the agreements evidencing material indebtedness of
the Corporation and its Subsidiaries and (iii) involves a Principal
Investor or any of their Affiliates (as defined below), such Affiliate Transaction
must be on terms that are no less favorable to the Corporation or its Subsidiaries,
as the case may be, than would be available at the time of such Affiliate Transaction
in a comparable transaction on an arm’s-length basis with any unaffiliated
third party, provided  further that neither an interested Investor
nor such Investor’s representatives on the Board or the board of directors of any
Subsidiary of the Corporation will participate in the relevant approvals
relating to any such Affiliate Transaction; and


 


(v)           the
entrance into any agreement, commitment or arrangement, to effect any of the
foregoing.


 


In
the event that any Material Action is approved by the Requisite Stockholder
Majority, the Corporation shall take, and shall cause its Subsidiaries to take,
any and all actions as are reasonably necessary to effect such Material Action.


 


Section 2.               The number of directors on
the Board shall be at least two (2) and not more than nine (9), determined
in accordance with this Article Fifth, and the initial number of directors
on the Board at the Effective Time shall be nine (9), elected in accordance
with this Section 2 of Article Fifth; provided, however,
that the total number of directors may be increased to more than nine (9) directors
at any time as determined by (i) the unanimous approval of the entire
Board and (ii) the holders of record of the majority of the outstanding
shares of each of the Class A Common Stock and the Class L Common Stock.  Notwithstanding any other provision of this
Second Amended and Restated Certificate of Incorporation, except as otherwise
required by applicable law, for so long as an Initial Public Offering has not
occurred, the following provisions shall govern the election of directors to
the Board:


 


(a)           Investors
that hold shares of Class A-1 Common Stock shall be entitled, voting as a
separate class, to elect and appoint at any annual or special meeting of the
Corporation’s stockholders, or by written consent, four (4) directors to
the Board (the “Class A-1 Directors”), subject to reduction as
provided in Section 3 of this Article Fifth, and the holders of Class A-1
Common Stock shall have the sole right to fill any Class A-1 Director
vacancies and otherwise remove and replace the Class A-1 Directors, and
may do so at any time for any reason;


 


(b)           Investors
that hold shares of Class A-2 Common Stock shall be entitled, voting as a
separate class, to elect and appoint at any annual or special meeting of the
Corporation’s stockholders, or by written consent, one (1) director to the
Board (the “Class A-2 Director”), and the holders of Class A-2
Common Stock shall have the sole right to fill any Class A-2 Director
vacancy and otherwise remove and replace the Class A-2 Director, and may
do so at any time; provided, however, that the position of the Class A-2
Director shall at all times be held by the Chief Executive Officer of the
Corporation;


 


(c)           Investors
that hold shares of Class L-1 Common Stock shall be entitled, voting as a
separate class, to elect and appoint at any annual or special meeting of the
Corporation’s stockholders, or by written consent, three (3) directors to
the Board (the “Class L-1 Director”), subject to reduction as
provided in Section 3 of this Article Fifth, and the holders of Class L-1
Common Stock shall have the sole right to fill any Class L-1 Director
vacancies and otherwise remove and replace the Class L-1 Directors, and
may do so at any time for any reason; the holders of shares of Class L-1 Common
Stock shall designate in their sole discretion one (1) of the Class L-1
Directors as a Spectrum Class L-1 Director (the “Spectrum Class L-1
Director”) and shall provide notice to the Corporation of such designation
or any change in such designation;


 


6

















 


(d)           Investors
that hold shares of Class L-2 Common Stock shall be entitled, voting as a
separate class, to elect and appoint at any annual or special meeting of the
Corporation’s stockholders, or by written consent, one (1) director to the
Board (the “Class L-2 Director”), and the holders of Class L-2
Common Stock shall have the sole right to fill any Class L-2 Director
vacancy and otherwise remove and replace the Class L-2 Director, and may
do so at any time for any reason, it being understood that the election,
appointment, removal and replacement of the Class L-2 Director shall
require the affirmative vote or written consent of each of the Bain Investors
and the Carlyle Investors, in each case, for so long as shares of Class L-1
Common Stock held by such Investors represent at least five percent (5%) of the
shares of Class L-1 Common Stock held by such Investors immediately
following the Effective Time (as may be adjusted for stock splits, stock
dividends, recapitalizations, pro-rata sell-downs or similar events); and


 


(e)           the
election of directors to the Board need not be by written ballot.


 


Section 3.               Notwithstanding the
foregoing, the number of directors the holders of voting Stock are entitled to
elect and appoint to the Board pursuant to Section 2 of Article Fifth
shall be reduced irrevocably as follows:


 


(a)           in the
case of the Class A-1 Directors, at any time (i) the shares of Class A-1
Common Stock held by the JPMP Investors (as defined below) represent less than
twenty-five percent (25%) and equal to or greater than five percent (5%) of the
shares of Class A-1 Common Stock held by the JPMP Investors immediately
following the Effective Time (in each case, as may be adjusted for stock
splits, stock dividends, recapitalizations or similar events), the number of Class A-1
Directors shall be reduced by one (1), (ii) the shares of Class A-1
Common Stock held by the Apollo Investors (as defined below) represent less
than twenty-five percent (25%) and equal to or greater than five percent (5%)
of the shares of Class A-1 Common Stock held by Apollo Investors
immediately following the Effective Time (in each case, as may be adjusted for
stock splits, stock dividends, recapitalizations, pro-rata sell-downs or similar
events), the number of Class A-1 Directors shall be reduced by one (1), (iii) the
shares of Class A-1 Common Stock held by JPMP Investors represent less
than five percent (5%) of the shares of Class A-1 Common Stock held by the
JPMP Investors immediately following the Effective Time (as may be adjusted for
stock splits, stock dividends, recapitalizations or similar events), the number
of Class A-1 Directors shall be reduced by two (2); provided, however,
that if the number of Class A-1 Directors has already been reduced
pursuant to Section 3(a)(i) of this Article Fifth, the number of
Class A-1 Directors shall only be reduced by one (1) pursuant to this
Section 3(a)(iii) of Article Fifth and (iv) the shares of Class A-1
Common Stock held by Apollo Investors represent less than five percent (5%) of
the shares of Class A-1 Common Stock held by the Apollo Investors
immediately following the Effective Time (as may be adjusted for stock splits,
stock dividends, recapitalizations or similar events), the number of Class A-1
Directors shall be reduced by two (2); provided, however, that if
the number of Class A-1 Directors has already been reduced pursuant to Section 3(a)(ii) of
this Article Fifth, the number of Class A-1 Directors shall only be
reduced by one (1) pursuant to this Section 3(a)(iv) of Article Fifth;
and


 


7

















 


(b)           in the
case of the Class L-1 Directors, at any time (i) shares of Class L-1
Common Stock held by the Carlyle Investors represent less than five percent
(5%) of the shares of Class L-1 Common Stock held by the Carlyle Investors
immediately following the Effective Time (as may be adjusted for stock splits,
stock dividends, recapitalizations or similar events), the number of Class L-1
Directors shall be reduced by one (1), (ii) shares of Class L-1
Common Stock held by the Bain Investors represent less than five percent (5%)
of the shares of Class L-1 Common Stock held by the Bain Investors
immediately following the Effective Time (as may be adjusted for stock splits,
stock dividends, recapitalizations or similar events), the number of Class L-1
Directors shall be reduced by one (1) and (iii) shares of Class L-1
Common Stock held by the Spectrum Investors represent less than five percent
(5%) of the shares of Class L-1 Common Stock held by the Spectrum
Investors immediately following the Effective Time (as may be adjusted for
stock splits, stock dividends, recapitalizations or similar events), the number
of Class L-1 Directors shall be reduced by one (1).


 


Upon any reduction in the number of directors the holders of
voting stock are entitled to elect and appoint to the Board pursuant to this Section 3
of Article Fifth, the authorized number of directors on the Board shall
concomitantly be reduced.


 


Section 4.               Except as may be otherwise
specifically provided by applicable law, for so long as an Initial Public
Offering has not occurred, (a) at all meetings of the Board (including
telephonic meetings), or actions in writing taken in lieu thereof, a majority
of the votes of directors comprising the entire Board, so long as such majority
includes the votes of at least one Class A-1 Director and at least one Class L-1
Director who is not the Spectrum Class L-1 Director, shall constitute a
quorum for the transaction of business (provided, however, that a
quorum shall not require a Class A-1 Director or a Class L-1 Director
who is not the Spectrum Class L-1 Director, as the case may be, in the
event each of the Class A-1 Directors or each of the Class L-1
Directors (other than the Spectrum Class L-1 Director), as the case may
be, shall have failed to attend two consecutive duly called Board meetings
relating to the same subject matter immediately prior to the Board meeting at
issue)) and (b) with respect to (i) any action that is a Material
Action, the majority of the votes of directors at any Board meeting at which
there is a quorum (including a telephonic meeting), or action in writing taken
in lieu thereof in which a quorum would exist if such directors executing
written consents attended a meeting, where such Material Action is approved shall
be sufficient to approve such Material Action and (ii) any action that is
not a Material Action, the approval of directors holding at least thirteen (13)
votes of the entire Board shall be sufficient to approve any such action; provided,
that in the event the number of directors on the Board is reduced pursuant to Section 3
of this Article Fifth, the number of votes required to approve any action
that is not a Material Action shall be a majority of the votes of the entire
Board.


 


Section 5.               For so long as an Initial
Public Offering has not occurred, the directors of the Board shall have votes
and be entitled to vote on all matters with respect to which the Board may take
action as follows: (a) each Class A-1 Director shall have three (3) votes;
(b) the Class A-2 Director shall have one (1) vote; (c) each
Class L-1 Director shall have three (3) votes; and (d) the Class L-2
Director shall have one (1) vote. 
The directors of the Board shall vote together as a single class on all
matters to be voted on by the Board.


 


Section 6.               For so long as an Initial
Public Offering has not occurred, except as limited by applicable law, the
Corporation shall take all actions within its power reasonably necessary to
ensure that (a) the composition of the board of directors of AMCE will be
identical to the composition of the Board and (b) the composition of the
boards of directors of any Significant Subsidiaries (as such term is defined in
Regulation S-X of the Rules and Regulations of the Securities and Exchange
Commission) shall be subject to the approval of the Requisite Stockholder
Majority.


 


8

















 


Section 7.               The Board may, by duly
adopted action of the Board, designate one or more committees of one or more
directors, including alternates who may replace any absent or disqualified
member at any meeting of the committee; provided, that unless otherwise
required by applicable law, so long as there is at least one Class A-1
Director, at least one Class A-1 Director shall be a member of each
committee of the Board, and so long as there is at least one Class L-1
Director, at least one Class L-1 Director shall be a member of each
committee of the Board.  Unless otherwise
required by applicable law, the Board shall designate and maintain a
compensation committee of the Board and an audit committee of the Board.


 


Section 8.               Regular meetings of the
Board may be held without notice so long as the times and dates of any such
meetings are publicized in advance to all members of the Board.  Special meetings of the Board may be called
by any Class A-1 Director or any Class L-1 Director and may be held
upon twenty four hours notice to each director, either personally, by mail or
by facsimile, or such shorter period as approved by all the Class A-1
Directors and all the Class L-1 Directors; provided, that such
notice requirement shall be deemed waived for any special meeting if each
director is present at such special meeting.


 


ARTICLE SIXTH


 


Section 1.               As used in this Second
Amended and Restated Certificate of Incorporation, the following terms shall
have the following meanings:


 


“Affiliate” means with respect to a
specified Person, any Person that directly or indirectly controls, is
controlled by, or is under common control with, the specified Person.  As used in this definition, the term “control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise.  Notwithstanding the foregoing, CSFB Strategic
Partners Holdings II, L.P., on the one hand, and CSFB Credit Opportunities Fund
(Employee), L.P. and CSFB Credit Opportunities Fund (Helios), L.P., on the
other hand, shall not be deemed to be Affiliates of each other.


 


“Affiliated Fund” means, with respect
to any specified Investor, an investment fund that is an Affiliate of such
Person (including entities investing solely on behalf of the Investor or such
fund) or an entity that is directly or indirectly wholly-owned by such Investor
or one or more of such funds (other than a portfolio company of any such fund).


 


“Affiliate
Transaction” means any transaction of the type that would be required to be
disclosed under Item 404 of Regulation S-K promulgated by the Commission
between the Corporation or any of its Subsidiaries, on the one hand, and any (a) present
or former officer or director of the Corporation or any of its Subsidiaries or
any of their immediate family members (including their spouses), (b) record
or beneficial owner of more than 5% of the shares of any class of Stock, or (c) Person
known by the Corporation’s executive officers or directors to be an Affiliate
of any such officer, director or beneficial owner, on the other hand.


 


“AMCE”
has the meaning set forth in Section 1(a) of Article Fifth.


 


“Annual
Budget” has the meaning set forth in Section 1(d) of Article Fifth.


 


“Apollo
Investors” means Apollo Investment Fund V, L.P., a Delaware limited
partnership, Apollo Overseas Partners V, L.P., a Cayman Island exempted limited
partnership, Apollo Netherlands Partners V(A), L.P., a Cayman Island exempted
limited partnership, Apollo Netherlands


 


9

















 


Partners V(B), L.P., a Cayman Island exempted
limited partnership, Apollo German Partners V GmbH & Co KG, a German
limited partnership, and any of their respective Permitted Transferees.


 


“Bain
Investors” means Bain Capital Holdings (Loews) I, L.P., Bain Capital AIV
(Loews) II, L.P. and any of their respective Permitted Transferees.


 


“Board”
has the meaning set forth in the introduction.


 


“Carlyle
Investors” means TC Group III, L.P., Carlyle Partners III Loews, L.P., CP
III Coinvestment, L.P. and any of their respective Permitted Transferees.


 


“Class A
Common Stock” has the meaning set forth in Section 1 of Article Fourth.


 


“Class A
Conversion” has the meaning set forth in Section 4(a) of Article Fourth.


 


“Class A-1
Common Stock” has the meaning set forth in Section 1 of Article Fourth.


 


“Class A-1
Directors” has the meaning set forth in Section 2(a) of Article Fifth.


 


“Class A-2
Common Stock” has the meaning set forth in Section 1 of Article Fourth.


 


“Class A-2
Director” has the meaning set forth in Section 2(b) of Article Fifth.


 


“Class L
Common Stock” has the meaning set forth in Section 1 of Article Fourth.


 


“Class L-1
Common Stock” has the meaning set forth in Section 1 of Article Fourth.


 


“Class L-1
Director” has the meaning set forth in Section 2(c) of Article Fifth.


 


“Class L-2
Common Stock” has the meaning set forth in Section 1 of Article Fourth.


 


“Class L-2
Director” has the meaning set forth in Section 2(d) of Article Fifth.


 


“Class N
Common Stock” has the meaning set forth in Section 1 of Article Fourth.


 


“Corporation”
has the meaning set forth in the introduction.


 


“Delaware
Secretary of State” has the meaning set forth in the introduction.


 


“DGCL”
ahs the meaning set forth in the introduction.


 


“Effective
Time” has the meaning set forth in Section 4(a) of Article Fourth.


 


“Existing
Common Stock” has the meaning set forth in Section 4(a) of Article Fourth.


 


10

















 


“Former
LCE Investors” means the Bain Investors, the Carlyle Investors and the
Spectrum Investors.


 


“Initial
Public Offering” means the initial public offering of Stock registered on Form S-1
(or any equivalent or successor form) under the Securities Act of 1933, as
amended, and the rules and regulations in effect thereunder.


 


“Investor” or “Investors”
means each of the JPMP Investors, the Apollo Investors, the Other Marquee
Investors, the Carlyle Investors, the Bain Investors and the Spectrum
Investors.


 


“JPMP
Investors” means J.P. Morgan Partners (BHCA), L.P., a Delaware limited
partnership, J.P. Morgan Partners Global Investors, L.P., a Delaware limited
partnership, J.P. Morgan Partners
Global Investors (Cayman), L.P., a Cayman limited partnership, J.P. Morgan Partners Global Investors
(Cayman) II, L.P., a Cayman limited partnership, J.P. Morgan Partners Global Investors (Selldown), L.P., a
Delaware limited partnership, AMCE (Ginger), L.P., a Delaware limited
partnership, AMCE (Luke), L.P., a Delaware limited partnership, AMCE
(Scarlett), L.P., a Delaware limited partnership, and any of their respective
Permitted Transferees.


 


“Material
Actions” has the meaning set forth in Section 1 of Article Fifth.


 


“Original
Certificate of Incorporation” has the meaning set forth in the
introduction.


 


“Other
Marquee Investors” means Weston Presidio Capital IV, L.P., WPC Entrepreneur
Fund II, L.P., SSB Capital Partners (Master Fund) I, L.P., Caisse de Depot et
Placement du Quebec, Co-Investment Partners, L.P., CSFB Strategic Partners
Holdings II, L.P., CSFB Strategic Partners Parallel Holdings II, L.P., CSFB
Credit Opportunities Fund (Employee), L.P., CSFB Credit Opportunities Fund
(Helios), L.P. Credit Suisse Anlagestiftung, Pearl Holding Limited, Partners
Group Private Equity Performance Holding Limited, Vega Invest (Guernsey)
Limited, Alpinvest Partners CS Investments 2003 C.V., Apinvest Partners Later
Stage Co-Investments Custodian II B.V., Alpinvest Partners Later Stage
Co-Investments Custodian IIA B.V., Screen Investors 2004, LLC and any of their respective
Permitted Transferees.


 


“Permitted
Transferee” means any Person who acquires shares of Stock pursuant to a
transfer by an Investor (i) approved by the Requisite Stockholder Majority
or (ii) from an Affiliated Fund of such Investor; provided such
transferor remains an Affiliated Fund of such Investor following such transfer.  For the avoidance of doubt, a Permitted
Transferee of an Investor shall not be deemed a Permitted Transferee for
purposes of Article Fifth, Section 3 unless such Investor’s transfer
of rights to designate directors is expressly approved by the Requisite
Stockholder Majority.


 


“Person” means any individual,
corporation, association, partnership (general or limited), joint venture,
trust, estate, limited liability company, or other legal entity or
organization.


 


“Pre-Existing
Marquee Investors” means the JPMP Investors, the Apollo Investors and the
Other Marquee Investors.


 


“Principal
Investor” means any one of (i) the JPMP Investors, collectively, (ii) the
Apollo Investors, collectively, (iii) the Carlyle Investors, collectively,
and (iv) the Bain Investors, collectively; provided, however,
that any such Principal Investor shall cease to be a Principal Investor at such
time as such Principal Investor ceases to hold shares of Stock representing at
least twenty-five


 


11

















 


percent (25%) of the shares of Stock held by such
Principal Investor immediately following the Effective Time (in each case, as
may be adjusted for stock splits, stock dividends, recapitalizations, pro-rata
sell-downs or similar events).  For the
avoidance of doubt, so long as there are two or more Principal Investors,
references in this Second Amended and Restated Certificate of Incorporation to “Principal
Investors” shall mean all Principal Investors then remaining, and if at any
time there is only one Principal Investor, references in this Second Amended
and Restated Certificate of Incorporation to “the Principal Investors” or “each
Principal Investor” shall mean that sole Principal Investor then remaining.


 


“Proceeding”
has the meaning specified in Section 2 of Article Seventh.


 


“Requisite
Stockholder Majority” means: (a) the consent of three of the Principal
Investors so long as there are four Principal Investors, provided, however,
if two of the Principal Investors (the “Approving Principal Investor Parties”)
consent to the exercise of any right or the taking of any action but the other
two Principal Investors (the “Opposing Principal Investor Parties”) do
not consent to the exercise of such right or the taking of such action and (A) a
Pre-Existing Marquee Investor is an Approving Principal Investor Party and
another Pre-Existing Marquee Investor is an Opposing Principal Investor Party, (B) a
Former LCE Investor is an Approving Principal Investor Party and another Former
LCE Investor is an Opposing Principal Investor Party, and (C) the Spectrum
Investors hold shares of Stock representing at least 25% of the shares of Stock
held by the Spectrum Investors immediately following the Effective Time (as may
be adjusted for stock splits, stock dividends, recapitalizations or similar
events), then the “Requisite Stockholder Majority” shall mean the consent of
the Approving Principal Investor Parties plus the consent of the Spectrum
Investors; (b) the consent of two of the Principal Investors, so long as
there are two or three Principal Investors; (c) the consent of one
Principal Investor, so long as there is only one Principal Investor; or (d) the
consent of holders of a majority of the issued and outstanding shares of Class A
Common Stock and Class L Common Stock, voting together as a single class,
so long as there is no Principal Investor. 
For the avoidance of doubt, for purposes of determining the Requisite
Stockholder Majority, the taking of any action or the exercise of any right
(including the granting of any consent or approval) by any Principal Investor
or by the Spectrum Investors shall be determined by the holders of a majority
of the shares of Stock held by such Principal Investor or the Spectrum
Investors (as applicable).


 


“Residual
Common Stock” has the meaning set forth in Section 1 of Article Fourth.


 


“Residual
Conversion” has the meaning set forth in Section 4(a) of Article Fourth.


 


“Second
Amended and Restated Certificate of Incorporation” has the meaning set
forth in the introduction.


 


 “Spectrum Class L-1 Director” has
the meaning set forth in Section 2(c) of Article Fifth.


 


“Spectrum
Investors” means Spectrum Equity Investors IV, L.P., Spectrum Equity
Investors Parallel IV, L.P., Spectrum IV Investment Managers’ Fund, L.P. and
any of their respective Permitted Transferees.


 


“Stock”
has the meaning set forth in Section 1 of Article Fourth.


 


“Subsidiary”
or “Subsidiaries” means any Person in which the Corporation (either
alone or through or together with any other Person), owns, directly or
indirectly, 50% or more of


 


12

















 


the stock or other equity interests which are
generally entitled to vote for the election of the board of directors or other
governing body of such Person.


 


Section 2.               The following rules of
interpretation shall apply to this Second Amended and Restated Certificate of
Incorporation:


 


(a)           unless the
context otherwise requires, (i) words of any gender include each other
gender; (ii) words using the singular or plural number also include the
plural or singular number, respectively; (iii) the terms “Article” or “Section”
refer to the specified Article or Section of this Second Amended and
Restated Certificate of Incorporation; (iv) each defined term has its
defined meaning throughout this Second Amended and Restated Certificate of
Incorporation, whether the definition of such term appears before or after such
term is used, (v) the word “including” shall mean “including, without
limitation,” and (vi) the word “or” shall be disjunctive but not exclusive;


 


(b)           references
to agreements and other documents shall be deemed to include all subsequent
amendments and other modifications thereto; and


 


(c)           references
to statutes shall include all regulations promulgated thereunder and references
to statutes or regulations shall be construed as including all statutory and
regulatory provisions consolidating, amending or replacing the statute or
regulation.


 


ARTICLE SEVENTH


 


Section 1.               The personal liability of the
directors for monetary damages for breach of fiduciary duty as a director of
the Corporation is hereby eliminated to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as the same may be amended
and supplemented. Any repeal or modification of this Article Seventh shall
not adversely affect any right or protection of a director of the Corporation
existing hereunder with respect to any act or omission occurring prior to such
repeal or modification.


 


13

















 


Section 2.               Each person who was or is a
party or is made a party, threatened to be made a party to or is involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (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 or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such Proceeding is alleged action in an official capacity as a director,
officer or representative or in any other capacity while serving as a director,
officer or representative, shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment to the fullest
extent permitted by law, 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 expenses,
liability and loss (including attorneys’ fees, judgments, fines, Employee
Retirement Income Security Act of 1974, as amended, excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered
by him or her 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.
Such right shall be a contract right and shall include the right to be paid by
the Corporation expenses incurred in defending any such Proceeding in advance
of its final disposition; provided,
however, if the DGCL
requires, the payment of such expenses shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such person, to repay all
amounts so advanced if it should be determined ultimately that such person is
not entitled to be indemnified under this Article Seventh or
otherwise.  The Corporation may, by
action of the Board, provide indemnification to employees and/or agents with
the same scope and effect as the foregoing indemnification of directors and
officers.


 


Section 3.               If a claim under this Article Seventh
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 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 DGCL 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 has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its board of directors, independent
legal counsel, or its stockholders) that the claimant had not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that claimant had not met the applicable standard of conduct.


 


Section 4.               The rights conferred by this
Article Seventh shall not be exclusive of any other right which such
persons may have or hereafter acquire under any statute, provision, bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.


 


Section 5.               The Corporation may maintain
insurance, at its expense, to protect itself and any director, officer, or
representative against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify him against such expense,
liability or loss under the DGCL.


 


14

















 


ARTICLE EIGHTH


 


Section 1.               Subject to Article Fifth
and Section 2 of this Article Eighth, from time to time any of the
provisions of this Second Amended and Restated Certificate of Incorporation may
be amended, altered or repealed, and other provisions authorized by the laws of
the State of Delaware at the time in force may be added or inserted in the
manner and at the time prescribed by said laws, and all rights at any time
conferred upon the stockholders of the Corporation by this Second Amended and Restated
Certificate of Incorporation are granted subject to the provisions of this Article Eighth.


 


Section 2.               Notwithstanding the
foregoing Section 1 of this Article Eighth, in addition to any other
vote or consent required by applicable law:


 


(a)           any
amendment, alteration, modification, waiver or repeal of any provision of this
Second Amended and Restated Certificate of Incorporation, including any filing
of a certificate of designation, or of the by-laws of the Corporation,
including by means of merger, consolidation or otherwise, shall require the
affirmative vote or written consent of the Requisite Stockholder Majority;


 


(b)           any
amendment, alteration, modification, waiver or repeal of any provision of this
Second Amended and Restated Certificate of Incorporation or of the by-laws of
the Corporation, including by means of merger, consolidation or otherwise, that
adversely affects the voting powers, preferences, or other special rights or
privileges, or restricts the rights, privileges, powers or immunities of any
class of Stock shall require the affirmative vote or written consent of the
holders of a majority of the outstanding shares of such class of Stock; and


 


(c)           any
increase or decrease (other than by a conversion pursuant to Section 4(b) of
Article Fourth or a conversion or recapitalization which is permitted
without an applicable class vote pursuant to Section 2(b) of this Article Eighth)
in the authorized number of shares of any class of Stock shall require the
affirmative vote or written consent of the holders of a majority of the
outstanding shares of such class of Stock.


 


15

















 


IN WITNESS WHEREOF, the undersigned, a duly
authorized officer of the Corporation, has executed this Second Amended and
Restated Certificate of Incorporation of Marquee Holdings Inc. on behalf of the
Corporation this 25th day of January, 2006.


 


	
   

  	
  MARQUEE HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
          /s/ Craig R. Ramsey

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Craig R. Ramsey

  
	
   

  	
   

  	
  Title: 

  	
  Executive Vice President and

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer