EXHIBIT 10.19
CARMIKE CINEMAS, INC.
FIRST AMENDMENT TO
STOCKHOLDERS' AGREEMENT
This First Amendment to the Stockholders' Agreement (this "AMENDMENT")
is made and entered into as of July ___, 2002 by and among Carmike Cinemas,
Inc., a Delaware corporation (the "COMPANY"), and the other parties signatory
hereto (the "STOCKHOLDERS" and together with the Company, the "PARTIES").
Capitalized terms not otherwise defined herein shall have the respective
meanings given them in the Stockholders' Agreement dated as of January 31, 2002
(the "STOCKHOLDERS' AGREEMENT").
WITNESSETH:
WHEREAS, the Parties have executed a Stockholders' Agreement setting
forth certain rights and obligations regarding the Stock held by the
Stockholders, including a 25-month prohibition on the Stockholders transferring
their Stock and agreement to vote their Stock in favor of the election of
certain designees to the Board of Directors of the Company;
WHEREAS, the Parties have executed the Registration Rights Agreement
dated as of January 31, 2002 setting forth certain rights and obligations
regarding the registration of Stock held by the Stockholders;
WHEREAS, the Board of Directors of the Company has authorized the
proper officers of the Company to file with the U.S. Securities and Exchange
Commission by and on behalf of the Company the Registration Statement No.
333-90028 on Form S-1 (and any appropriate amendments thereto) (the
"REGISTRATION STATEMENT") in connection with an underwritten public offering of
shares of its common stock (the "PROPOSED OFFERING") and the Parties have
executed the Waiver and Consent Agreement, dated as of June 7, 2002 (the "WAIVER
AND CONSENT"), permitting the Selling Stockholders (as herein defined) to
exercise their piggyback registration rights by including, in the aggregate,
500,000 shares of the Stock of the Selling Stockholders (as herein defined) in
the Registration Statement; and
WHEREAS, the Parties desire to supersede the Waiver and Consent by
amending the Stockholders' Agreement to permit the Selling Stockholders (as
herein defined) to exercise their piggyback rights in connection with the
Proposed Offering, and to include in the Proposed Offering an aggregate of up to
750,000 shares; plus additional shares in an amount that represents no more than
the lesser of (i) 1,835,000 shares plus up to an additional 275,250 shares to
satisfy the underwriters' over-allotment option, if exercised, and (ii) the
number of shares equal to 20% of the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table contained in the Registration
Statement divided by the public offering per share in the Proposed Offering and
to set forth the Stockholders' understanding with respect to the continued
service on the Board of Directors of the Jordan/Zalaznick Board Designees upon
any 33.33% Transfer that results from the completion of the Proposed Offering.
NOW, THEREFORE, in consideration of the premises and mutual agreements,
covenants and provisions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties hereto agree as follows:
ARTICLE I
AMENDMENTS
A. Board Designees. Section 1.4 of the Stockholders' Agreement
shall be amended by adding the following sentence:
Notwithstanding the foregoing, the parties hereto understand
and agree that any 33.33% Transfer by Jordan/Zalaznick that
occurs as a result of the proposed public offering of the
Company contemplated by Registration Statement No. 333-90028,
initially filed June 7, 2002 with the Securities and Exchange
Commission (the "PROPOSED OFFERING"), will not have the
effect of requiring any Board Designee of Jordan/Zalaznick to
be removed; it being understood and agreed that any such
Board Designee that has been elected or who has been
nominated in the proxy statement for election by the Company
stockholders at the annual meeting to be held in August 2002
will continue to serve until the annual meeting of
stockholders of the Company to be held in 2003; it being
further understood and agreed that, no later than the 30th
day preceding the date on which the Company intends to mail
its proxy statement to stockholders for such 2003 annual
meeting, Jordan/Zalaznick shall identify to the Company and
the Board of Directors any such Board Designee who would have
been removed as a result of such 33.33% Transfer pursuant to
this Section 1.4 (the "INCUMBENT JZ DESIGNEE"), and any such
Incumbent JZ Designee shall abstain and not participate in
any determination by the Board of Directors as to who should
be nominated by the Board of Directors to fill his vacancy at
the 2003 annual meeting (it being understood that such
Incumbent JZ Designee shall not be disqualified from being so
nominated) or whether to reduce the size of the Board of
Directors to eliminate such vacancy. The parties hereto agree
that the 2003 annual meeting shall take place no later than
August 14, 2003, and hereby agree to take such action as
would be required to schedule this meeting no later than such
date.
B. Transfer Restrictions. Section 3 of the Stockholders'
Agreement shall be amended by adding as a third paragraph:
Notwithstanding the foregoing, each of The Jordan Trust;
TJT(B); TJT(B) (Bermuda) Investment Company LTD; Xxxxx X.
Xxxxxxxxx and Xxxxxxx Xxxxxxxxx, JT; and Leucadia Investors,
Inc. or any of its Affiliates (collectively, the "SELLING
STOCKHOLDERS") shall be permitted to Transfer such Selling
Stockholder's Stock pursuant to the Proposed Offering and to
include such Stock in Registration Statement No. 333-90028
(subject to the provisions of Section 4(c) of the
Registration Rights Agreement, among the Company and the
stockholders listed therein, dated as of January 31, 2002, as
amended on the date hereof) provided that the aggregate
number of shares of Stock Transferred by the
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Selling Stockholders in the Proposed Offering shall not exceed
in the aggregate the lesser of (i) 1,835,000 shares plus up to
an additional 275,250 shares solely to satisfy the
underwriters' over-allotment option, and (ii) the number of
shares equal to 20% of the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table
contained in the Registration Statement No. 333-90028 divided
by the public offering price per share in the Proposed
Offering; and provided further that any of the shares of Stock
of the Selling Stockholders not sold in the Proposed Offering
for any reason shall thereupon return to being subject to all
transfer restrictions imposed by the Stockholders' Agreement.
ARTICLE II
MISCELLANEOUS
A. Incorporation of Provisions. The provisions of Section 7 of
the Stockholders' Agreement shall apply to this Amendment as if set forth herein
in their entirety.
B. Limitation of Amendment. Except for the amendments expressly
set forth above, the Stockholders' Agreement shall remain unchanged and in full
force and effect.
C. Waiver and Consent Agreement. This Amendment supersedes the
Waiver and Consent Agreement, dated as of June 7, 2002, by and among the
Parties.
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IN WITNESS WHEREOF, this Amendment has been executed as of the date and
year first above written.
THE "COMPANY"
CARMIKE CINEMAS, INC.
By:
------------------------------
Name:
Title:
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THE "STOCKHOLDERS"
XXXXXXX X. XXXXXXX, as an individual
By:
------------------------------
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GS CAPITAL PARTNERS III, L.P.
By: GS Advisors III, L.L.C.,
Its General Partner
By:
------------------------------
Name:
Title:
GS CAPITAL PARTNERS III OFFSHORE, L.P.
By: GS Advisors III, L.L.C.,
Its General Partner
By:
------------------------------
Name:
Title:
XXXXXXX SACHS & CO. VERWALTUNGS GMBH
By:
By:
------------------------------
Name:
Title:
0
XXXXXX XXXXXX XXXX 0000, L.P.
BY: Stone Street 1998, L.L.C.,
Its General Partner
By:
------------------------------
Name:
Title:
XXXXX XXXXXX XXXX 0000, X.X.
BY: Xxxxx Xxxxxx 0000, X.X.X.
Its General Partner
By:
------------------------------
Name:
Title:
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THE JORDAN TRUST
By:
------------------------------
Name: Xxxx X. Xxxxxx XX
Title: Trustee
TJT(B)
By:
------------------------------
Name: Xxxx X. Xxxxxx XX
Title: Trustee
TJT(B) (BERMUDA) INVESTMENT COMPANY
LTD.
By:
------------------------------
Name: Xxxx X. Xxxxxx XX
Title: President
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XXXXX X. XXXXXXXXX AND XXXXXXX
XXXXXXXXX, JT TEN
By:
------------------------------
Name: Xxxxx X. Xxxxxxxxx
By:
------------------------------
Name: Xxxxxxx Xxxxxxxxx
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LEUCADIA INVESTORS, INC.
By:
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
LEUCADIA NATIONAL CORPORATION
By:
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President and Chief
Financial Officer
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