EXHIBIT 4.3
EXECUTION COPY
CARMIKE CINEMAS, INC.
7.500% SENIOR SUBORDINATED NOTES DUE 2014
UNCONDITIONALLY GUARANTEED AS TO THE
PAYMENT OF PRINCIPAL, PREMIUM,
IF ANY, AND INTEREST BY
the Guarantors listed on the signature pages hereto
Exchange and Registration Rights Agreement
February 4, 2004
Xxxxxxx, Xxxxx & Co.,
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Carmike Cinemas, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) its $150 million 7.500%
Senior Subordinated Notes due 2014, which are unconditionally guaranteed by
Eastwynn Theatres, Inc., an Alabama corporation, Wooden Nickel Pub, Inc., a
Delaware corporation and Military Services, Inc., a Delaware corporation. As an
inducement to the Purchasers to enter into the Purchase Agreement (as defined
herein) and in satisfaction of a condition to the obligations of the Purchasers
thereunder, the Company and the Guarantors agree with the Purchasers for the
benefit of holders (as defined herein) from time to time of the Registrable
Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the following
respective meanings:
"Base Interest" shall mean the interest that would otherwise
accrue on the Securities under the terms thereof and the Indenture, without
giving effect to the provisions of this Exchange and Registration Rights
Agreement.
The term "broker-dealer" shall mean any broker or dealer
registered with the Commission under the Exchange Act.
"Business Day" means any day excluding Saturday, Sunday or any
other day that is a legal holiday under the laws of New York, New York or is a
day on which banking
institutions therein located are authorized or required by law or other
governmental action to close.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and
Exchange Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for the
particular purpose.
"Effective Time," in the case of (i) an Exchange Registration,
shall mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective.
"Electing Holder" shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
or any successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned
thereto in Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning
assigned thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto
in Section 2(a) hereof.
"Guarantors" shall have the meaning assigned thereto in the
Indenture.
The term "holder" shall mean each of the Purchasers and other
persons who acquire Registrable Securities from time to time (including any
successors or assigns), in each case for so long as such person owns any
Registrable Securities.
"Indenture" shall mean the Indenture, dated as of February 4,
2004, between the Company, the Guarantors and Xxxxx Fargo Bank Minnesota,
National Association, as Trustee, as the same shall be amended from time to
time.
"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
The term "person" shall mean a corporation, association,
partnership, organization, business, individual, government or political
subdivision thereof or governmental agency.
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"Purchase Agreement" shall mean the Purchase Agreement, dated
as of January 29, 2004, between the Purchasers, the Guarantors and the Company
relating to the Securities.
"Purchasers" shall mean the Purchasers named in Schedule I to
the Purchase Agreement.
"Registrable Securities" shall mean the Securities; provided,
however, that a Security shall cease to be a Registrable Security when (i) in
the circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security that, pursuant to the
last two sentences of Section 2(a), is included in a prospectus for use in
connection with resales by broker-dealers shall be deemed to be a Registrable
Security with respect to Sections 5, 6 and 9 until resale of such Registrable
Security has been effected within the 180-day period referred to in Section
2(a)); (ii) in the circumstances contemplated by Section 2(b) hereof, a Shelf
Registration Statement registering such Security under the Securities Act has
been declared or becomes effective and such Security has been sold or otherwise
transferred by the holder thereof pursuant to and in a manner contemplated by
such effective Shelf Registration Statement; (iii) such Security is sold
pursuant to Rule 144 under circumstances in which any legend borne by such
Security relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company or pursuant to the
Indenture; (iv) such Security is eligible to be sold pursuant to paragraph (k)
of Rule 144; or (v) such Security shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto
in Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned
thereto in Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an
affiliate of the Company within the meaning of Rule 405, (ii) a holder who
acquires Exchange Securities outside the ordinary course of such holder's
business, (iii) a holder who has arrangements or understandings with any person
to participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with respect to
Exchange Securities received by such broker-dealer pursuant to an Exchange Offer
in exchange for Registrable Securities acquired by the broker-dealer directly
from the Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each
case, such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to time.
"Securities" shall mean, collectively, the $150 million 7.500%
Senior Subordinated Notes due 2014 of the Company to be issued and sold to the
Purchasers, and securities issued in exchange therefor or in lieu thereof
pursuant to the Indenture. Each Security is entitled to the benefit of the
guarantees provided for in the Indenture (the "Guarantees") and, unless the
context otherwise requires, any reference herein to a "Security," an "Exchange
Security" or a "Registrable Security" shall include a reference to the related
Guarantee.
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"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to
a "Section" or "clause" refers to a Section or clause, as the case may be, of
this Exchange and Registration Rights Agreement, and the words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Exchange and Registration Rights Agreement as a whole and not to any particular
Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the
Company and the Guarantors agree to file under the Securities Act, as
soon as practicable, but no later than 90 days after the Closing Date,
a registration statement relating to an offer to exchange (such
registration statement, the "Exchange Registration Statement", and such
offer, the "Exchange Offer") any and all of the Securities for a like
aggregate principal amount of debt securities issued by the Company and
guaranteed by the Guarantors, which debt securities and guarantees are
substantially identical to the Securities and the related Guarantees,
respectively (and are entitled to the benefits of a trust indenture
which is substantially identical to the Indenture or is the Indenture
and which has been qualified under the Trust Indenture Act), except
that such new debt securities have been registered pursuant to an
effective registration statement under the Securities Act and do not
contain provisions for the additional interest contemplated in Section
2(c) below (such new debt securities hereinafter called "Exchange
Securities"). The Company and the Guarantors agree to use all
commercially reasonable efforts to cause the Exchange Registration
Statement to become effective under the Securities Act as soon as
practicable, but no later than 180 days after the Closing Date. The
Exchange Offer will be registered under the Securities Act on the
appropriate form and will comply with all applicable tender offer rules
and regulations under the Exchange Act. The Company and the Guarantors
further agree to use all commercially reasonable efforts to commence
and complete the Exchange Offer promptly, but no later than 30 Business
Days (or such longer period as may be required by federal securities
laws) after such registration statement has become effective, hold the
Exchange Offer open for at least 30 days and exchange Exchange
Securities for all Registrable Securities that have been properly
tendered and not withdrawn on or prior to the expiration of the
Exchange Offer. The Exchange Offer will be deemed to have been
"completed" only if the debt securities and related guarantees received
by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and the Exchange
Act
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and without material restrictions under the blue sky or securities laws
of a substantial majority of the States of the United States of
America. The Exchange Offer shall be deemed to have been completed upon
the earlier to occur of (i) the Company having exchanged the Exchange
Securities for all outstanding Registrable Securities pursuant to the
Exchange Offer and (ii) the Company having exchanged, pursuant to the
Exchange Offer, Exchange Securities for all Registrable Securities that
have been properly tendered and not withdrawn before the expiration of
the Exchange Offer, which shall be on a date that is at least 30 days
following the commencement of the Exchange Offer. The Company agrees
(x) to include in the Exchange Registration Statement a prospectus for
use in any resales by any holder of Exchange Securities that is a
broker-dealer and (y) to keep such Exchange Registration Statement
effective for a period (the "Resale Period") beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the
earlier of the expiration of the 180th day after the Exchange Offer has
been completed or such time as such broker-dealers no longer own any
Registrable Securities. With respect to such Exchange Registration
Statement, such holders shall have the benefit of the rights of
indemnification and contribution set forth in Sections 6(a), (c), (d)
and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is
completed existing Commission interpretations are changed such that the
debt securities or the related guarantees received by holders other
than Restricted Holders in the Exchange Offer for Registrable
Securities are not or would not be, upon receipt, transferable by each
such holder without restriction under the Securities Act, (ii) the
Exchange Offer has not been completed within 225 days following the
Closing Date or (iii) the Exchange Offer is not available to any holder
of the Securities, the Company shall, in lieu of (or, in the case of
clause (iii), in addition to) conducting the Exchange Offer
contemplated by Section 2(a), use its reasonable best efforts to file
under the Securities Act as soon as practicable, but no later than the
later of 45 days after the time such obligation to file arises, a
"shelf" registration statement providing for the registration of, and
the sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar rule that
may be adopted by the Commission (such filing, the "Shelf Registration"
and such registration statement, the "Shelf Registration Statement").
The Company and the Guarantors agree to use all commercially reasonable
efforts (x) to cause the Shelf Registration Statement to become or be
declared effective no later than 120 days after such Shelf Registration
Statement is filed and to keep such Shelf Registration Statement
continuously effective for a period ending on the earlier of the second
anniversary of the Effective Time or such time as any Registrable
Securities registered under the Shelf Registration Statement cease to
be Registrable Securities as defined herein, provided, however, that no
holder shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement or to use the prospectus forming a part
thereof for resales of Registrable Securities unless such holder is an
Electing Holder, and (y) after the Effective Time of the Shelf
Registration Statement, promptly upon the request of any holder of
Registrable Securities that is not then an Electing Holder, to take any
action reasonably necessary to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such
holder as a selling securityholder in the Shelf Registration Statement,
provided, however, that nothing in this Clause (y) shall relieve any
such holder of the obligation to return a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(d)(iii)
hereof. The Company and the Guarantors further agree to supplement or
make amendments to the Shelf Registration Statement, as and when
required by the rules, regulations or
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instructions applicable to the registration form used by the Company
and the Guarantors for such Shelf Registration Statement or by the
Securities Act or rules and regulations thereunder for shelf
registration, and the Company agrees to furnish to each Electing Holder
copies of any such supplement or amendment prior to its being used or
promptly following its filing with the Commission.
(c) In the event that (i) the Company and the Guarantors
have not filed the Exchange Registration Statement or Shelf
Registration Statement on or before the date on which such registration
statement is required to be filed pursuant to Section 2(a) or 2(b),
respectively, or (ii) such Exchange Registration Statement or Shelf
Registration Statement has not become effective or been declared
effective by the Commission on or before the date on which such
registration statement is required to become or be declared effective
pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange
Offer has not been completed within 30 Business Days after the initial
effective date of the Exchange Registration Statement relating to the
Exchange Offer (if the Exchange Offer is then required to be made) or
(iv) any Exchange Registration Statement or Shelf Registration
Statement required by Section 2(a) or 2(b) hereof is filed and declared
effective but shall thereafter either be withdrawn by the Company or
shall become subject to an effective stop order issued pursuant to
Section 8(d) of the Securities Act suspending the effectiveness of such
registration statement (except as specifically permitted herein)
without being succeeded immediately by an additional registration
statement filed and declared effective (each such event referred to in
clauses (i) through (iv), a "Registration Default" and each period
during which a Registration Default has occurred and is continuing, a
"Registration Default Period"), then, as liquidated damages for such
Registration Default, subject to the provisions of Section 9(b),
special interest ("Special Interest"), in addition to the Base
Interest, shall accrue at a per annum rate of 0.25% for the first 90
days of the Registration Default Period, at a per annum rate of 0.50%
for the second 90 days of the Registration Default Period, at a per
annum rate of 0.75% for the third 90 days of the Registration Default
Period and at a per annum rate of 1.00% thereafter for the remaining
portion of the Registration Default Period.
(d) The Company shall take, and shall cause each
Guarantor to take, all actions necessary or advisable to be taken by it
to ensure that the transactions contemplated herein are effected as so
contemplated, including all actions necessary or desirable to register
the Guarantees under the registration statement contemplated in Section
2(a) or 2(b) hereof, as applicable.
(e) Any reference herein to a registration statement as
of any time shall be deemed to include any document incorporated, or
deemed to be incorporated, therein by reference as of such time and any
reference herein to any post-effective amendment to a registration
statement as of any time shall be deemed to include any document
incorporated, or deemed to be incorporated, therein by reference as of
such time.
3. Registration Procedures.
If the Company and the Guarantors file a registration
statement pursuant to Section 2(a) or Section 2(b), the following provisions
shall apply:
(a) At or before the Effective Time of the Exchange Offer
or the Shelf Registration, as the case may be, the Company shall
qualify the Indenture under the Trust Indenture Act of 1939.
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(b) In the event that such qualification would require
the appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(c) In connection with the Company's and the Guarantors'
obligations with respect to the registration of Exchange Securities as
contemplated by Section 2(a) (the "Exchange Registration"), if
applicable, the Company and the Guarantors shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as
soon as practicable but no later than 90 days after the
Closing Date, an Exchange Registration Statement on any form
which may be utilized by the Company and the Guarantors and
which shall permit the Exchange Offer and resales of Exchange
Securities by broker-dealers during the Resale Period to be
effected as contemplated by Section 2(a), and use all
commercially reasonable efforts to cause such Exchange
Registration Statement to become effective as soon as
practicable thereafter, but no later than 180 days after the
Closing Date;
(ii) as soon as practicable prepare and file with
the Commission such amendments and supplements to such
Exchange Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the
effectiveness of such Exchange Registration Statement for the
periods and purposes contemplated in Section 2(a) hereof and
as may be required by the applicable rules and regulations of
the Commission and the instructions applicable to the form of
such Exchange Registration Statement, and promptly provide
each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then
amended or supplemented), in conformity in all material
respects with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder, as such broker-dealer reasonably may
request prior to the expiration of the Resale Period, for use
in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has
requested or received copies of the prospectus included in
such registration statement, and confirm such advice in
writing, (A) when such Exchange Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and,
with respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective,
(B) of any comments by the Commission and by the blue sky or
securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or
supplements to such Exchange Registration Statement or
prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the
effectiveness of such Exchange Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(D) if at any time the representations and warranties of the
Company contemplated by Section 5 cease to be true and correct
in all material respects, (E) of the receipt by the Company of
any notification with respect to the suspension of the
qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time during the
Resale Period when a prospectus is required to be delivered
under the Securities Act, that such
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Exchange Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not
conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder or
contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances then existing;
(iv) in the event that the Company and the
Guarantors would be required, pursuant to Section 3(c)(iii)(F)
above, to notify any broker-dealers holding Exchange
Securities, promptly prepare and furnish to each such holder a
reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such
Exchange Securities during the Resale Period, such prospectus
shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and
shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances then existing;
(v) use its reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of
such Exchange Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(vi) use its reasonable best efforts to (A)
register or qualify the Exchange Securities under the
securities laws or blue sky laws of such jurisdictions as are
contemplated by Section 2(a) no later than the commencement of
the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein
in such jurisdictions until the expiration of the Resale
Period and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each broker-dealer
holding Exchange Securities to consummate the disposition
thereof in such jurisdictions; provided, however, that neither
the Company nor any of the Guarantors shall be required for
any such purpose to (1) qualify as a foreign corporation in
any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(c)(vi), (2)
consent to general service of process in any such jurisdiction
or (3) make any changes to its certificate of incorporation or
by-laws or any agreement between it and its stockholders;
(vii) use its reasonable best efforts to obtain
the consent or approval of each governmental agency or
authority, whether federal, state or local, which may be
required to effect the Exchange Registration, the Exchange
Offer and the offering and sale of Exchange Securities by
broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange
Securities, not later than the applicable Effective Time; and
(ix) comply with all applicable rules and
regulations of the Commission, and make generally available to
its securityholders as soon as
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practicable but no later than eighteen months after the
effective date of such Exchange Registration Statement, an
earning statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including,
at the option of the Company, Rule 158 thereunder).
(d) In connection with the Company's and the Guarantors'
obligations with respect to the Shelf Registration, if applicable, the
Company and the Guarantors shall, as soon as practicable (or as
otherwise specified):
(i) prepare and file with the Commission, as
soon as practicable but in any case within the time periods
specified in Section 2(b), a Shelf Registration Statement on
any form which may be utilized by the Company and which shall
register all of the Registrable Securities for resale by the
holders thereof in accordance with such method or methods of
disposition as may be specified by such of the holders as,
from time to time, may be Electing Holders and use all
commercially reasonable efforts to cause such Shelf
Registration Statement to become effective as soon as
practicable but in any case within the time periods specified
in Section 2(b);
(ii) not less than 30 calendar days prior to the
Effective Time of the Shelf Registration Statement, mail the
Notice and Questionnaire to the holders of Registrable
Securities to be registered under the Shelf Registration
Statement; no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as
of the Effective Time, and no holder shall be entitled to use
the prospectus forming a part thereof for resales of
Registrable Securities at any time, unless such holder has
returned a completed and signed Notice and Questionnaire to
the Company by the deadline for response set forth therein;
provided, however, holders of Registrable Securities shall
have at least 28 calendar days from the date on which the
Notice and Questionnaire is first mailed to such holders to
return a completed and signed Notice and Questionnaire to the
Company;
(iii) after the Effective Time of the Shelf
Registration Statement, upon the request of any holder of
Registrable Securities to be registered under the Shelf
Registration Statement that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such holder;
provided that the Company shall not be required to take any
action to name such holder as a selling securityholder in the
Shelf Registration Statement or to enable such holder to use
the prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a
completed and signed Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare and file with
the Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as
may be necessary to effect and maintain the effectiveness of
such Shelf Registration Statement for the period specified in
Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions
applicable to the form of such Shelf Registration Statement,
and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its
being used or filed with the Commission;
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(v) comply with the provisions of the Securities
Act with respect to the disposition of all of the Registrable
Securities covered by such Shelf Registration Statement in
accordance with the intended methods of disposition by the
Electing Holders provided for in such Shelf Registration
Statement;
(vi) provide (A) the Electing Holders, (B) the
underwriters (which term, for purposes of this Exchange and
Registration Rights Agreement, shall include a person deemed
to be an underwriter within the meaning of Section 2(a)(11) of
the Securities Act), if any, thereof, (C) any sales or
placement agent therefor, (D) counsel for any such underwriter
or agent and (E) not more than one counsel for all the
Electing Holders the opportunity to participate in the
preparation of such Shelf Registration Statement, each
prospectus included therein or filed with the Commission and
each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing
of such Shelf Registration Statement, and throughout the
period specified in Section 2(b), make available at reasonable
times at the Company's principal place of business or such
other reasonable place for inspection by the persons referred
to in Section 3(d)(vi) who shall certify in writing to the
Company that they have a current intention to sell the
Registrable Securities pursuant to the Shelf Registration such
financial and other information and books and records of the
Company, and cause the officers, employees, counsel and
independent certified public accountants of the Company to
respond to such inquiries, as shall be reasonably necessary,
in the judgment of the respective counsel referred to in such
Section, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any
information or records reasonably designated by the Company as
being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its
inclusion in such registration statement or otherwise), or (B)
such person shall be required so to disclose such information
pursuant to a subpoena or order of any court or other
governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only
after such person shall have given the Company prompt prior
written notice of such requirement), or (C) such information
is required to be set forth in such Shelf Registration
Statement or the prospectus included therein or in an
amendment to such Shelf Registration Statement or an amendment
or supplement to such prospectus in order that such Shelf
Registration Statement, prospectus, amendment or supplement,
as the case may be, complies with applicable requirements of
the federal securities laws and the rules and regulations of
the Commission and does not contain an untrue statement of a
material fact or omit to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances then existing;
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(viii) promptly notify each of the Electing
Holders, any sales or placement agent therefor and any
underwriter thereof (which notification may be made through
any managing underwriter that is a representative of such
underwriter for such purpose) and confirm such advice in
writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and,
with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective,
(B) of any comments by the Commission and by the blue sky or
securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or
supplements to such Shelf Registration Statement or prospectus
or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of
such Shelf Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any
time the representations and warranties of the Company
contemplated by Section 3(d)(xvii) or Section 5 cease to be
true and correct in all material respects, (E) of the receipt
by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, or (F) if at any time when
a prospectus is required to be delivered under the Securities
Act, that such Shelf Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment
does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder or
contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances then existing;
(ix) use its reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of
such registration statement or any post-effective amendment
thereto at the earliest practicable date;
(x) if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing
Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by
the applicable rules and regulations of the Commission and as
such managing underwriter or underwriters, such agent or such
Electing Holder specifies should be included therein relating
to the terms of the sale of such Registrable Securities,
including information with respect to the principal amount of
Registrable Securities being sold by such Electing Holder or
agent or to any underwriters, the name and description of such
Electing Holder, agent or underwriter, the offering price of
such Registrable Securities and any discount, commission or
other compensation payable in respect thereof, the purchase
price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable
Securities to be sold by such Electing Holder or agent or to
such underwriters; and make all required filings of such
prospectus supplement or post-effective amendment promptly
after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
11
(xi) furnish to each Electing Holder, each
placement or sales agent, if any, therefor, each underwriter,
if any, thereof and the respective counsel referred to in
Section 3(d)(vi) an executed copy (or, in the case of an
Electing Holder, a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each
case including all exhibits thereto (in the case of an
Electing Holder of Registrable Securities, upon request) and
documents incorporated by reference therein) and such number
of copies of such Shelf Registration Statement (excluding
exhibits thereto and documents incorporated by reference
therein unless specifically so requested by such Electing
Holder, agent or underwriter, as the case may be) and of the
prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and any summary
prospectus), in conformity in all material respects with the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder, and such other documents, as such Electing Holder,
agent, if any, and underwriter, if any, may reasonably request
in order to facilitate the offering and disposition of the
Registrable Securities owned by such Electing Holder, offered
or sold by such agent or underwritten by such underwriter and
to permit such Electing Holder, agent and underwriter to
satisfy the prospectus delivery requirements of the Securities
Act; and the Company hereby consents to the use of such
prospectus (including such preliminary and summary prospectus)
and any amendment or supplement thereto by each such Electing
Holder and by any such agent and underwriter, in each case in
the form most recently provided to such person by the Company,
in connection with the offering and sale of the Registrable
Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or
amendment thereto;
(xii) use its reasonable best efforts to (A)
register or qualify the Registrable Securities to be included
in such Shelf Registration Statement under such securities
laws or blue sky laws of such jurisdictions as any Electing
Holder and each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request, (B)
keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers,
sales and dealings therein in such jurisdictions during the
period the Shelf Registration is required to remain effective
under Section 2(b) above and for so long as may be necessary
to enable any such Electing Holder, agent or underwriter to
complete its distribution of Securities pursuant to such Shelf
Registration Statement and (C) take any and all other actions
as may be reasonably necessary or advisable to enable each
such Electing Holder, agent, if any, and underwriter, if any,
to consummate the disposition in such jurisdictions of such
Registrable Securities; provided, however, that neither the
Company nor any of the Guarantors shall be required for any
such purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(d)(xii),
(2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
12
(xiii) use its reasonable best efforts to obtain
the consent or approval of each governmental agency or
authority, whether federal, state or local, which may be
required to effect the Shelf Registration or the offering or
sale in connection therewith or to enable the selling holder
or holders to offer, or to consummate the disposition of,
their Registrable Securities;
(xiv) unless any Registrable Securities shall be
in book-entry only form, cooperate with the Electing Holders
and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates, if so
required by any securities exchange upon which any Registrable
Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on
steel engraved borders, and which certificates shall not bear
any restrictive legends; and, in the case of an underwritten
offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two Business Days prior to
any sale of the Registrable Securities;
(xv) provide a CUSIP number for all Registrable
Securities, not later than the applicable Effective Time;
(xvi) enter into one or more underwriting
agreements, engagement letters, agency agreements, "best
efforts" underwriting agreements or similar agreements, as
appropriate, including customary provisions relating to
indemnification and contribution, and take such other actions
in connection therewith as any Electing Holders aggregating at
least 25% in aggregate principal amount of the Registrable
Securities at the time outstanding shall request in order to
expedite or facilitate the disposition of such Registrable
Securities;
13
(xvii) whether or not an agreement of the type
referred to in Section 3(d)(xvi) hereof is entered into and
whether or not any portion of the offering contemplated by the
Shelf Registration is an underwritten offering or is made
through a placement or sales agent or any other entity, (A)
make such representations and warranties to the Electing
Holders and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof in form, substance and scope
as are customarily made in connection with an offering of debt
securities pursuant to any appropriate agreement or to a
registration statement filed on the form applicable to the
Shelf Registration; (B) obtain an opinion of counsel to the
Company in customary form and covering such matters, of the
type customarily covered by such an opinion, as the managing
underwriters, if any, or as any Electing Holders of at least
25% in aggregate principal amount of the Registrable
Securities at the time outstanding may reasonably request,
addressed to such Electing Holder or Electing Holders and the
placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of
such Shelf Registration Statement (and if such Shelf
Registration Statement contemplates an underwritten offering
of a part or all of the Registrable Securities, dated the date
of the closing under the underwriting agreement relating
thereto) (it being agreed that the matters to be covered by
such opinion shall include the due incorporation and good
standing of the Company and its subsidiaries; the
qualification of the Company and its subsidiaries to transact
business as foreign corporations; the due authorization,
execution and delivery of the relevant agreement of the type
referred to in Section 3(d)(xvi) hereof; the due
authorization, execution, authentication and issuance, and the
validity and enforceability, of the Securities; the absence of
material legal or governmental proceedings involving the
Company; the absence of a breach by the Company or any of its
subsidiaries of, or a default under, material agreements
binding upon the Company or any subsidiary of the Company; the
absence of governmental approvals required to be obtained in
connection with the Shelf Registration, the offering and sale
of the Registrable Securities, this Exchange and Registration
Rights Agreement or any agreement of the type referred to in
Section 3(d)(xvi) hereof, except such approvals as may be
required under state securities or blue sky laws; the material
compliance as to form of such Shelf Registration Statement and
any documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder, respectively; and, as of the date of
the opinion and of the Shelf Registration Statement or most
recent post-effective amendment thereto, as the case may be,
the absence from such Shelf Registration Statement and the
prospectus included therein, as then amended or supplemented,
and from the documents incorporated by reference therein (in
each case other than the financial statements and other
financial information contained therein) of an untrue
statement of a material fact or the omission to state therein
a material fact necessary to make the statements therein not
misleading (in the case of such documents, in the light of the
circumstances existing at the time that such documents were
filed with the Commission under the Exchange Act)); (C) obtain
a "cold comfort" letter or letters from the independent
certified public accountants of the Company addressed to the
selling Electing Holders, the placement or sales agent, if
any, therefor or the underwriters, if any, thereof, dated (i)
the effective date of such Shelf Registration Statement and
(ii) the effective date of any prospectus supplement to the
prospectus included in such Shelf Registration
14
Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited
financial statements as of a date or for a period subsequent
to that of the latest such statements included in such
prospectus (and, if such Shelf Registration Statement
contemplates an underwritten offering pursuant to any
prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such
Shelf Registration Statement which includes unaudited or
audited financial statements as of a date or for a period
subsequent to that of the latest such statements included in
such prospectus, dated the date of the closing under the
underwriting agreement relating thereto), such letter or
letters to be in customary form and covering such matters of
the type customarily covered by letters of such type; (D)
deliver such documents and certificates, including officers'
certificates, as may be reasonably requested by any Electing
Holders of at least 25% in aggregate principal amount of the
Registrable Securities at the time outstanding or the
placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A)
above or those contained in Section 5(a) hereof and the
compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other
agreement entered into by the Company or the Guarantors; and
(E) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are
provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable
Securities of any amendment or waiver of any provision of this
Exchange and Registration Rights Agreement pursuant to Section
9(h) hereof which notice shall contain the text of the
amendment or waiver effected;
(xix) in the event that any broker-dealer
registered under the Exchange Act shall underwrite any
Registrable Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the
"Conduct Rules) of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended
from time to time) thereof, whether as a holder of such
Registrable Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the
requirements of such Conduct Rules, including by (A) if such
Conduct Rules shall so require, engaging a "qualified
independent underwriter" (as defined in such Conduct Rules) to
participate in the preparation of the Shelf Registration
Statement relating to such Registrable Securities, to exercise
usual standards of due diligence in respect thereto and, if
any portion of the offering contemplated by such Shelf
Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of
such Registrable Securities, (B) indemnifying any such
qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof
(or to such other customary extent as may be requested by such
underwriter), and (C) providing such information to such
broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Conduct
Rules; and
15
(xx) comply with all applicable rules and
regulations of the Commission, and make generally available to
its securityholders as soon as practicable but in any event
not later than eighteen months after the effective date of
such Shelf Registration Statement, an earning statement of the
Company and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of the Company,
Rule 158 thereunder).
(e) In the event that the Company would be required,
pursuant to Section 3(d)(viii)(F) above, to notify the Electing
Holders, the placement or sales agent, if any, therefor and the
managing underwriters, if any, thereof, the Company shall without delay
prepare and furnish to each of the Electing Holders, to each placement
or sales agent, if any, and to each such underwriter, if any, a
reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of Registrable Securities,
such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder and
shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing. Each Electing Holder agrees that upon
receipt of any notice from the Company pursuant to Section
3(d)(viii)(F) hereof, such Electing Holder shall forthwith discontinue
the disposition of Registrable Securities pursuant to the Shelf
Registration Statement applicable to such Registrable Securities until
such Electing Holder shall have received copies of such amended or
supplemented prospectus, and if so directed by the Company, such
Electing Holder shall deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such Electing
Holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to
the information required to be provided by each Electing Holder in its
Notice and Questionnaire, the Company may require such Electing Holder
to furnish to the Company such additional information regarding such
Electing Holder and such Electing Holder's intended method of
distribution of Registrable Securities as may be required in order to
comply with the Securities Act. Each such Electing Holder agrees to
notify the Company as promptly as practicable of any inaccuracy or
change in information previously furnished by such Electing Holder to
the Company or of the occurrence of any event in either case as a
result of which any prospectus relating to such Shelf Registration
contains or would contain an untrue statement of a material fact
regarding such Electing Holder or such Electing Holder's intended
method of disposition of such Registrable Securities or omits to state
any material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and
promptly to furnish to the Company any additional information required
to correct and update any previously furnished information or required
so that such prospectus shall not contain, with respect to such
Electing Holder or the disposition of such Registrable Securities, an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing.
16
(g) Until the expiration of two years after the Closing
Date, the Company will not, and will not permit any of its "affiliates"
(as defined in Rule 144) to, resell any of the Securities that have
been reacquired by any of them except pursuant to an effective
registration statement under the Securities Act.
(h) Each holder agrees by acquisition of a Registrable
Security that, upon receipt of the notice referred to in Section
(3)(c)(iii)(C) or 3(d)(viii)(C) or any notice from the Company of the
existence of any fact of the kind described in Section (3)(c)(iii)(F)
or 3(d)(viii)(F) hereof (in each case, a "Suspension Notice"), such
holder will forthwith discontinue disposition of Registrable Securities
pursuant to a Exchange Registration Statement or Shelf Registration
Statement, as the case may be, until (i) such holder has received
copies of the supplemented or amended prospectus contemplated by
Section (3)(c)(iv) hereof, or (ii) such holder is advised in writing by
the Company that the use of the prospectus may be resumed, and has
received copies of any additional or supplemental filings that
incorporated by reference in the prospectus (in each case the
"Recommencement Date"). Each holder receiving a Suspension Notice
hereby agrees that it will either (i) destroy any prospectuses, other
than permanent file copies, then in such holder's possession which have
been replaced by the Company with more recently dated prospectuses or
(ii) deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such holder's possession of
the prospectus covering such Registrable Securities that was current at
the time of receipt of the Suspension Notice. Furthermore, the Company
and the Guarantors may allow the Shelf Registration Statement and the
related prospectus to cease to become effective and usable if the
Company is in possession of material non-public information relating to
a proposed financing, recapitalization, acquisition, business
combination or other material transaction involving the Company or the
Guarantors which the board of directors of the Company determines in
good faith would require disclosure in the Shelf Registration Statement
by the Company of such material non-public information for which the
Company has a bona fide business purpose for not disclosing and
disclosure of such information is not otherwise required by law;
provided (i) that the Company notifies the holders within two business
days after such board of directors makes such decision (a
"Transaction-Related Suspension Notice") and (ii) that the number of
days during which such Exchange Registration Statement or Shelf
Registration Statement, as the case may be, was not effective or usable
pursuant to the foregoing provisions shall last no longer than 45 days
in any 12-month period. The time period regarding the effectiveness of
such Exchange Registration Statement or Shelf Registration Statement
set forth in Section 2(a) or 2(b), respectively hereof, as applicable,
shall be extended by a number of days equal to the number of days in
the period from and including the date of delivery of the Suspension
Notice or Transaction-Related Suspension Notice, as applicable, to the
date of delivery of the Recommencement Date.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid
promptly all expenses incident to the Company's performance of or compliance
with this Exchange and Registration Rights Agreement, including (a) all
Commission and any NASD registration, filing and review fees and expenses
including reasonable fees and disbursements of counsel for the placement or
sales agent or underwriters in connection with such registration, filing and
review, (b) all reasonable fees and expenses in connection with the
qualification of the Securities for offering and sale under the State securities
and blue sky laws referred to in Section 3(d)(xii) hereof and determination of
their eligibility for investment under the laws of such jurisdictions as
17
any managing underwriters or the Electing Holders may designate, including any
fees and disbursements of counsel for the Electing Holders or underwriters in
connection with such qualification and determination, (c) all expenses relating
to the preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities for
delivery and the expenses of printing or producing any underwriting agreements,
agreements among underwriters, selling agreements and blue sky or legal
investment memoranda and all other documents in connection with the offering,
sale or delivery of Securities to be disposed of (including certificates
representing the Securities), (d) messenger, telephone and delivery expenses
relating to the offering, sale or delivery of Securities and the preparation of
documents referred in clause (c) above, (e) fees and expenses of the Trustee
under the Indenture, any agent of the Trustee and any counsel for the Trustee
and of any collateral agent or custodian, (f) internal expenses (including all
salaries and expenses of the Company's officers and employees performing legal
or accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "cold comfort" letters required by or incident to such
performance and compliance), (h) reasonable fees, disbursements and expenses of
any "qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, (i) reasonable fees, disbursements and expenses of one counsel for the
Electing Holders retained in connection with a Shelf Registration, as selected
by the Electing Holders of at least a majority in aggregate principal amount of
the Registrable Securities held by Electing Holders (which counsel shall be
reasonably satisfactory to the Company), (j) any fees charged by securities
rating services for rating the Securities, and (k) fees, expenses and
disbursements of any other persons, including special experts, retained by the
Company in connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are incurred, assumed
or paid by any holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof, the Company shall reimburse such person for the
full amount of the Registration Expenses so incurred, assumed or paid promptly
after receipt of a request therefor. Notwithstanding the foregoing, the holders
of the Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
5. Representations and Warranties.
Each of the Company and the Guarantors, jointly and severally,
represents and warrants to, and agrees with, each Purchaser and each of the
holders from time to time of Registrable Securities that:
(a) Each registration statement covering Registrable
Securities and each prospectus (including any preliminary or summary
prospectus) contained therein or furnished pursuant to Section 3(c) or
Section 3(d) hereof and any further amendments or supplements to any
such registration statement or prospectus, when it becomes effective or
is filed with the Commission, as the case may be, and, in the case of
an underwritten offering of Registrable Securities, at the time of the
closing under the underwriting agreement relating thereto, will conform
in all material respects to the requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to
18
make the statements therein not misleading; and at all times subsequent
to the Effective Time when a prospectus would be required to be
delivered under the Securities Act, other than from (i) such time as a
notice has been given to holders of Registrable Securities pursuant to
Section 3(d)(viii)(F) or Section 3(c)(iii)(F) hereof until (ii) such
time as the Company furnishes an amended or supplemented prospectus
pursuant to Section 3(e) or Section 3(c)(iv) hereof, each such
registration statement, and each prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section 3(c) or
Section 3(d) hereof, as then amended or supplemented, will conform in
all material respects to the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(b) Any documents incorporated by reference in any
prospectus referred to in Section 5(a) hereof, when they become or
became effective or are or were filed with the Commission, as the case
may be, will conform or conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable,
and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(c) The compliance by the Company with all of the
provisions of this Exchange and Registration Rights Agreement and the
consummation of the transactions herein contemplated (A) will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any subsidiary of the Company is a party or by which the
Company or any subsidiary of the Company is bound or to which any of
the property or assets of the Company or any subsidiary of the Company
is subject, (B) will not result in any violation of the provisions of
the certificate of incorporation, as amended, or the by-laws of the
Company or any of the Guarantors or (C) will not result in any
violation of any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or
any subsidiary of the Company or any of their properties, except in the
case of clauses (A) and (C) as would not, individually or in the
aggregate, have a material adverse effect on the general affairs,
business, management, liquidity, current or future financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the consummation by the
Company and the Guarantors of the transactions contemplated by this
Exchange and Registration Rights Agreement, except the registration
under the Securities Act of the Securities, qualification of the
Indenture under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under State securities or blue sky laws in connection with the offering
and distribution of the Securities.
19
(d) This Exchange and Registration Rights Agreement has
been duly authorized, executed and delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company and the Guarantors.
The Company and the Guarantors, jointly and severally, will indemnify
and hold harmless each of the holders of Registrable Securities
included in an Exchange Registration Statement, each of the Electing
Holders of Registrable Securities included in a Shelf Registration
Statement and each person who participates as a placement or sales
agent or as an underwriter in any offering or sale of such Registrable
Securities against any losses, claims, damages or liabilities, joint or
several, to which such holder, agent or underwriter may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Exchange Registration Statement or Shelf
Registration Statement, as the case may be, under which such
Registrable Securities were registered under the Securities Act, or any
preliminary, final or summary prospectus contained therein or furnished
by the Company to any such holder, Electing Holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such holder, such
Electing Holder, such agent and such underwriter for any legal or other
expenses reasonably incurred by them in connection with investigating
or defending any such action or claim as such expenses are incurred;
provided, however, that neither the Company nor any of the Guarantors
shall be liable to any such person in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, or preliminary,
final or summary prospectus, or amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to
the Company by such person expressly for use therein.
(b) Indemnification by the Holders and any Agents and
Underwriters. The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to
Section 2(b) hereof and to entering into any underwriting agreement
with respect thereto, that the Company shall have received an
undertaking reasonably satisfactory to it from the Electing Holder of
such Registrable Securities and from each underwriter named in any such
underwriting agreement, severally and not jointly, to (i) indemnify and
hold harmless the Company, the Guarantors, and all other holders of
Registrable Securities, against any losses, claims, damages or
liabilities to which the Company, the Guarantors or such other holders
of Registrable Securities may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in such registration statement, or any preliminary, final or
summary prospectus contained therein or furnished by the Company to any
such Electing Holder, agent or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity
20
with written information furnished to the Company by such Electing
Holder or underwriter expressly for use therein, and (ii) reimburse the
Company and the Guarantors for any legal or other expenses reasonably
incurred by the Company and the Guarantors in connection with
investigating or defending any such action or claim as such expenses
are incurred; provided, however, that no such Electing Holder shall be
required to undertake liability to any person under this Section 6(b)
for any amounts in excess of the dollar amount of the proceeds to be
received by such Electing Holder from the sale of such Electing
Holder's Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party under subsection (a) or (b) above of written notice
of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party
pursuant to the indemnification provisions of or contemplated by this
Section 6, notify such indemnifying party in writing of the
commencement of such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under the indemnification
provisions of or contemplated by Section 6(a) or 6(b) hereof. In case
any such action shall be brought against any indemnified party and it
shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
21
(d) Contribution. If for any reason the indemnification
provisions contemplated by Section 6(a) or Section 6(b) are unavailable
to or insufficient to hold harmless an indemnified party in respect of
any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree
that it would not be just and equitable if contributions pursuant to
this Section 6(d) were determined by pro rata allocation (even if the
holders or any agents or underwriters or all of them were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in
this Section 6(d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, or liabilities (or actions
in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 6(d), no holder
shall be required to contribute any amount in excess of the amount by
which the dollar amount of the proceeds received by such holder from
the sale of any Registrable Securities (after deducting any fees,
discounts and commissions applicable thereto) exceeds the amount of any
damages which such holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the
Registrable Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
holders' and any underwriters' obligations in this Section 6(d) to
contribute shall be several in proportion to the principal amount of
Registrable Securities registered or underwritten, as the case may be,
by them and not joint.
(e) The obligations of the Company and the Guarantors
under this Section 6 shall be in addition to any liability which the
Company or the Guarantors may otherwise have and shall extend, upon the
same terms and conditions, to each officer, director and partner of
each holder, agent and underwriter and each person, if any, who
controls any holder, agent or underwriter within the meaning of the
Securities Act; and the obligations of the holders and any agents or
underwriters contemplated by this Section 6 shall be in addition to any
liability which the respective holder, agent or underwriter may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company or any of the Guarantors
(including any person who, with his or her consent, is named in any
registration statement as about to become a director of the
22
Company or any of the Guarantors) and to each person, if any, who
controls the Company within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable
Securities covered by the Shelf Registration are to be sold pursuant to
an underwritten offering, the managing underwriter or underwriters
thereof shall be designated by Electing Holders holding at least a
majority in aggregate principal amount of the Registrable Securities to
be included in such offering, provided that such designated managing
underwriter or underwriters is or are reasonably acceptable to the
Company.
(b) Participation by Holders. Each holder of Registrable
Securities hereby agrees with each other such holder that no such
holder may participate in any underwritten offering hereunder unless
such holder (i) agrees to sell such holder's Registrable Securities on
the basis provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities
that to the extent it shall be required to do so under the Exchange Act, the
Company shall timely file the reports required to be filed by it under the
Exchange Act or the Securities Act (including the reports under Section 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted
by the Commission under the Securities Act) and the rules and regulations
adopted by the Commission thereunder, and shall take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitations of the
exemption provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities in connection with that holder's sale pursuant to Rule
144, the Company shall deliver to such holder a written statement as to whether
it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents,
warrants, covenants and agrees that it has not granted, and shall not
grant, registration rights with respect to Registrable Securities or
any other securities which would be inconsistent with the terms
contained in this Exchange and Registration Rights Agreement.
23
(b) Specific Performance. The parties hereto acknowledge
that there would be no adequate remedy at law if the Company fails to
perform any of its obligations hereunder and that the Purchasers and
the holders from time to time of the Registrable Securities may be
irreparably harmed by any such failure, and accordingly agree that the
Purchasers and such holders, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of the Company under this
Exchange and Registration Rights Agreement in accordance with the terms
and conditions of this Exchange and Registration Rights Agreement, in
any court of the United States or any State thereof having
jurisdiction.
(c) Notices. All notices, requests, claims, demands,
waivers and other communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand, if
delivered personally or by courier, or three days after being deposited
in the mail (registered or certified mail, postage prepaid, return
receipt requested) as follows: If to the Company, to it at 0000 Xxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxx, 00000, Attention: Chief Financial Officer,
facsimile number: (000) 000-0000 (with a copy to: King & Spalding LLP,
000 Xxxxxxxxx Xx., Xxxxxxx, Xxxxxxx 00000, Attention: Xxxx X. Xxxxxx
III, Esq., facsimile number: (000) 000-0000), and if to a holder, to
the address of such holder set forth in the security register or other
records of the Company, or to such other address as the Company or any
such holder may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective
only upon receipt.
(d) Parties in Interest. All the terms and provisions of
this Exchange and Registration Rights Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the parties
hereto and the holders from time to time of the Registrable Securities
and the respective successors and assigns of the parties hereto and
such holders. In the event that any transferee of any holder of
Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or
otherwise, such transferee shall, without any further writing or action
of any kind, be deemed a beneficiary hereof for all purposes and such
Registrable Securities shall be held subject to all of the terms of
this Exchange and Registration Rights Agreement, and by taking and
holding such Registrable Securities such transferee shall be entitled
to receive the benefits of, and be conclusively deemed to have agreed
to be bound by all of the applicable terms and provisions of this
Exchange and Registration Rights Agreement. If the Company shall so
request, any such successor, assign or transferee shall agree in
writing to acquire and hold the Registrable Securities subject to all
of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Exchange and Registration Rights Agreement or made pursuant hereto
shall remain in full force and effect regardless of any investigation
(or statement as to the results thereof) made by or on behalf of any
holder of Registrable Securities, any director, officer or partner of
such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and
shall survive delivery of and payment for the Registrable Securities
pursuant to the Purchase Agreement and the transfer and registration of
Registrable Securities by such holder and the consummation of an
Exchange Offer.
(f) Governing Law. This Exchange and Registration Rights
Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
24
(g) Headings. The descriptive headings of the several
Sections and paragraphs of this Exchange and Registration Rights
Agreement are inserted for convenience only, do not constitute a part
of this Exchange and Registration Rights Agreement and shall not affect
in any way the meaning or interpretation of this Exchange and
Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and
Registration Rights Agreement and the other writings referred to herein
(including the Indenture and the form of Securities) or delivered
pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This
Exchange and Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement may be
amended and the observance of any term of this Exchange and
Registration Rights Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by
a written instrument duly executed by the Company and the holders of at
least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any
amendment or waiver effected pursuant to this Section 9(h), whether or
not any notice, writing or marking indicating such amendment or waiver
appears on such Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Exchange and
Registration Rights Agreement shall be in effect, this Exchange and
Registration Rights Agreement and a complete list of the names and
addresses of all the holders of Registrable Securities shall be made
available for inspection and copying on any Business Day by any holder
of Registrable Securities for proper purposes only (which shall include
any purpose related to the rights of the holders of Registrable
Securities under the Securities, the Indenture and this Agreement) at
the offices of the Company at the address thereof set forth in Section
9(c) above and at the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the
parties in counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us nine (9) counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Purchasers, this letter and
such acceptance hereof shall constitute a binding agreement among each of the
Purchasers, the Guarantors and the Company. It is understood that your
acceptance of this letter on behalf of each of the Purchasers is pursuant to the
authority set forth in a form of Agreement among Purchasers, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
25
EXECUTION COPY
Very truly yours,
Carmike Cinemas, Inc.
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President - Finance,
Treasurer and Chief Financial Officer
Eastwynn Theatres, Inc.
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President - Finance,
Treasurer and Chief Financial Officer
Wooden Nickel Pub, Inc.
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President - Finance,
Treasurer and Chief Financial Officer
Military Services, Inc.
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President - Finance,
Treasurer and Chief Financial Officer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxxx, Sachs & Co.
-------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Purchasers
EXECUTION COPY
SCHEDULE I
PRINCIPAL AMOUNT
OF SECURITIES
PURCHASER TO BE PURCHASED
--------- ----------------
Xxxxxxx, Sachs & Co...................... $ 87,500,000
Bear, Xxxxxxx & Co. Inc.................. 18,750,000
UBS Securities LLC....................... 18,750,000
Xxxxxx Xxxxxxx Corp...................... 12,500,000
Xxxxxxxxx & Company, Inc................. 12,500,000
Total.................................... $ 150,000,000
S-1
EXECUTION COPY
EXHIBIT A
CARMIKE CINEMAS, INC.
INSTRUCTION TO DTC PARTICIPANTS
(DATE OF MAILING)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]*
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Carmike Cinemas, Inc. (the "Company")
7.500% Senior Subordinated Notes due 2014 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [Deadline For Response]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Carmike Cinemas,
Inc., 0000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000, Tel: (000) 000-0000.
-------------------
* Not less than 28 calendar days from date of mailing.
A-1
CARMIKE CINEMAS, INC.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") among Carmike Cinemas, Inc. (the
"Company"), the Guarantors therein and the Purchasers named therein. Pursuant to
the Exchange and Registration Rights Agreement, the Company has filed with the
United States Securities and Exchange Commission (the "Commission") a
registration statement on Form [__] (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Company's 7.500% Senior Subordinated Notes due
2014 (the "Securities"). A copy of the Exchange and Registration Rights
Agreement is attached hereto. All capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Exchange and Registration Rights
Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE [Deadline for Response]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf Registration Statement and (ii) may not use the Prospectus forming
a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "Registrable Securities" is defined in the Exchange and Registration
Rights Agreement.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1)(a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in Item (3)
below are Held:
(2) Address for Notices to Selling Securityholder:
__________________
__________________
__________________
Telephone: _______________
Fax: _______________
Contact Person:_______________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:
___________________________
CUSIP No(s). of such Registrable Securities:
___________________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:
___________________________
CUSIP No(s). of such other Securities:
___________________________
(c) Principal amount of Registrable Securities which the undersigned wishes
to be included in the Shelf Registration Statement:
___________________________
CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:
___________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in
Item (3).
State any exceptions here:
(5) Relationships with the Company:
A-4
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be
sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters, broker-dealers
or agents. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which
may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may
enter into hedging transactions with broker-dealers, which may in turn
engage in short sales of the Registrable Securities in the course of
hedging the positions they assume. The Selling Securityholder may also
sell Registrable Securities short and deliver Registrable Securities to
close out such short positions, or loan or pledge Registrable
Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights
A-5
Agreement shall be made in writing, by hand-delivery, first-class mail, or air
courier guaranteeing overnight delivery as follows:
(i) To the Company:
Carmike Cinemas, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
__________________________________
(ii) With a copy to:
King & Spalding LLP
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx III, Esq.
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of New
York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: _____________
_______________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By: ____________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
King & Spalding LLP
000 Xxxxxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx III, Esq.
A-6
EXECUTION COPY
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Xxxxx Fargo Bank Minnesota, National Association
Carmike Cinemas, Inc.
c/o Xxxxxx X. X'Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Trust Officer
Re: Carmike Cinemas, Inc. (the "Company")
7.500% Senior Subordinated Notes due 2014
Dear Sirs:
Please be advised that _______ has transferred $ aggregate principal amount of
the above-referenced Notes pursuant to an effective Registration Statement on
Form [_______] (File No. 333) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated [date] or in supplements thereto, and that the aggregate principal amount
of the Notes transferred are the Notes listed in such Prospectus opposite such
owner's name.
Dated:
Very truly yours,
___________________________
(Name)
By: ________________________
(Authorized Signature)
B-1
