EXHIBIT 10.20
CARMIKE CINEMAS, INC.
FIRST AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
This First Amendment to the Registration Rights Agreement dated
January 31, 2002 (this "AMENDMENT") is made and entered into as of July __,
2002 by and among Carmike Cinemas, Inc., a Delaware corporation (the
"COMPANY"), and the other parties signatory hereto (the "HOLDERS" and together
with the Company, the "PARTIES"). Capitalized terms not otherwise defined
herein shall have the respective meanings given them in the Registration Rights
Agreement, dated as of January 31, 2002, by and among the Parties (the
"REGISTRATION RIGHTS AGREEMENT").
WITNESSETH:
WHEREAS, the Parties have executed a Stockholders' Agreement, dated as
of January 31, 2002 (the "STOCKHOLDERS' AGREEMENT") setting forth certain
rights and obligations regarding the shares of Common Stock held by the
Stockholders, including a 25-month prohibition on the Stockholders transferring
their shares of Common Stock and agreement to vote their shares of Common Stock
in favor of the election of certain designees to the Board of Directors of the
Company;
WHEREAS, the Parties have executed the Registration Rights Agreement
setting forth certain rights and obligations regarding the registration of
Registrable Securities held by the Holders;
WHEREAS, the Board of Directors of the Company has authorized the
proper officers of the Company to file with the Commission by and on behalf of
the Company the Registration Statement No. 333-90028 on Form S-1 (and any
appropriate amendments thereto) in connection with an underwritten public
offering of shares of its Common Stock (the "PROPOSED OFFERING") and the
Parties have executed the Waiver and Consent Agreement, dated as of June 7,
2002, permitting the Selling Stockholders (as herein defined) to exercise their
piggyback registration rights by including 500,000 shares in the aggregate of
Registrable Securities of the Selling Stockholders in Registration Statement
No. 333-90028; and
WHEREAS, the Parties desire to amend the Registration Rights Agreement
to permit the Selling Stockholders to exercise their piggyback rights in
connection with the Proposed Offering, and to include in the Proposed Offering
an aggregate of up to 750,000 shares; plus additional shares in an amount that
represents no more than the lesser of (i) 1,835,000 shares plus up to an
additional 275,250 shares to satisfy the underwriters' over-allotment option,
if exercised, and (ii) the number of shares equal to 20% of the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table contained in Registration Statement No. 333-90028 divided by the public
offering price per share in the Proposed Offering.
NOW, THEREFORE, in consideration of the premises and mutual
agreements, covenants and provisions contained herein, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereto agree as follows:
ARTICLE I
AMENDMENTS
A. Definitions. The definition of "REGISTRATION EXPENSES" shall
be amended by adding in clause (ii) the phrase ", designated by the Holders in
a writing provided to the Company," after "the reasonable fees and expenses of
one counsel to the Holders of Registrable Securities".
Section 1 of the Registration Rights Agreement shall be amended by
inserting in their proper alphabetical order the following definitions:
"PROPOSED OFFERING" means the proposed public
offering of the Company contemplated by Registration
Statement No. 333-90028.
"REGISTRATION STATEMENT NO. 333-90028" means the
Registration Statement on Form S-1 initially filed by the
Company on June 7, 2002 (and any appropriate amendments
thereto) in connection with the Proposed Offering.
"SELLING STOCKHOLDERS" means The Jordan Trust;
TJT(B); TJT(B) (Bermuda) Investment Company LTD; Xxxxx X.
Xxxxxxxxx and Xxxxxxx Xxxxxxxxx, JT; and Leucadia Investors,
Inc. or any of its affiliates, as defined in the
Stockholders' Agreement.
"STOCKHOLDERS' AGREEMENT" means the Carmike Cinemas,
Inc. Stockholders' Agreement, dated as of January 31, 2002,
among the Company and the Signing Stockholders (as defined
therein), as amended on the date hereof.
B. Waiver and Notice. Section 4(a) of the Registration Rights
Agreement shall be amended by adding as the last two paragraphs:
Each Holder hereby waives the requirement that it receive the
20-day advance written notice of the filing of Registration
Statement No. 333-90028 and the other information required to
be set forth in such notice with respect to the Proposed
Offering; and the Company hereby waives the written request
to include Selling Stockholder Registrable Securities in the
Proposed Offering and the other information required to be
set forth in such request. The Selling Stockholders
acknowledge that they have requested pursuant to this
Amendment that the Company register on Registration Statement
No. 333-90028 750,000 shares of Common Stock for sale in the
Proposed Offering, subject to (i) their right to withdraw any
such shares from the Proposed Offering by written notice to
the Company and the managing underwriter delivered prior to
the signing of the Underwriting Agreement with respect to the
Proposed Offering and (ii) the cut
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back provisions set forth in Section 4(c) hereof. In the
event that any of the Selling Stockholders wish to increase
the number of shares of Common Stock it requests that the
Company register on Registration Statement No. 333-90028 and
include in the Proposed Offering, such Selling Stockholder
will provide the Company and the managing underwriter with
written notice by telecopier, not later than three business
days prior to the pricing of the shares of Common Stock in
the Proposed Offering, of its request to increase the number
of its Registrable Securities to be included in the Proposed
Offering as provided in, and subject to the limitations
contained in, Section 3 of the Stockholders' Agreement.
The first 750,000 shares of Registrable Securities included
in Registration Statement No. 333-90028 for the Proposed
Offering shall be allocated among the Selling Stockholders
as follows: (i) 250,000 shares to The Jordan Trust, TJT(B)
and/or TJT(B) (Bermuda) Investment Company LTD; (ii) 250,000
shares to Xxxxx X. Xxxxxxxxx and/or Xxxxxxx Xxxxxxxxx; and
(iii) 250,000 shares to Leucadia Investors, Inc. or any of
its Affiliates (as that term is defined in the Stockholders'
Agreement); provided, however, that any number of shares of
Registrable Securities in the Proposed Offering held by the
Selling Stockholders may, prior to Registration Statement
No. 333-90028 becoming effective, be re-allocated among the
Selling Stockholders as the Selling Stockholders shall
mutually agree and as shall be set forth in the applicable
underwriting agreement and the final prospectus delivered
after Registration Statement No. 333-90028 becomes
effective.
In the event of any attempted increase in the number of
Registrable Securities by the Selling Stockholders in
connection with the Proposed Offering pursuant to Section
4(a) which either exceeds the aggregate number of
Registrable Securities permitted by Section 3 of the
Stockholders' Agreement or which is cut back pursuant to
Section 4(c), in the absence of an allocation agreement
among the Selling Stockholders to the contrary, such excess
Registrable Securities shall be cut back or eliminated such
that the respective number of shares that may be sold by
each Selling Stockholder in the Proposed Offering shall be
prorated in accordance with each such Selling Stockholder's
percentage of the total shares held by the Selling
Stockholders.
C. Priority in Piggyback Registration. Section 4(c) of the
Registration Rights Agreement shall be amended by adding the following
paragraph:
Notwithstanding the foregoing, if the managing underwriter
or underwriters of the Proposed Offering advise the Company
in writing that in its or their opinion the number of shares
of Common Stock proposed to be sold in the Proposed Offering
exceeds the number of shares that can be sold in the
Proposed Offering without an adverse effect on the Proposed
Offering (such adverse effect, includes but is not limited
to, any adverse effect on the marketing of the Proposed
Offering or the price of the shares offered thereby), the
Company will include in the Proposed Offering only the
number of shares of Common Stock that, in the
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opinion of such underwriter or underwriters, in its or their
sole and absolute discretion, can be sold in the Proposed
Offering as follows: first the 3,000,000 shares of Common
Stock the Company proposes to sell for its own account and
then second, 750,000 shares of Registrable Securities
requested to be included, in the aggregate, in the Proposed
Offering by the Selling Stockholders, pro rata among the
Selling Stockholders which have requested their Registrable
Securities to be included therein and then third any other
Registrable Securities, up to the amount permitted to be
transferred by the Selling Stockholders pursuant to Section 3
of the Stockholders' Agreement, requested by the Selling
Stockholders to be included in the Proposed Offering.
D. Section 5 of the Registration Rights Agreement is amended by
deleting Section 5(a) in its entirety and inserting the following in lieu
thereof:
(a) Restrictions Under the Stockholders' Agreement.
Notwithstanding anything to the contrary contained herein, any
transfer of the Common Stock is subject to the restrictions set forth
in Section 3 of the Stockholders' Agreement.
E. Section 16 of the Registration Rights Agreement is amended by
deleting Section 16 and inserting in lieu thereof:
All notices and other communications required or permitted
under this Agreement shall be in writing and shall be deemed
given when delivered by facsimile or overnight courier
service or delivered personally to the parties at the
following addresses or facsimile numbers (or to such other
address or facsimile number as a party may have specified by
notice given to the other party pursuant to this provision):
If to the Company, to:
Carmike Cinemas, Inc.
0000 0xx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: President
Telecopier: (000) 000-0000
With a copy to:
Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
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If to any Holder, addressed to such Holder at its address or
facsimile number as shown on the books of the Company, or at
such other address or facsimile number as such Holder may
specify by written notice to the Company.
ARTICLE II
MISCELLANEOUS
A. Incorporation of Provisions. The provisions of Sections 12,
13, 14, 15, 17, 18 and 19 of the Registration Rights Agreement shall apply to
this Amendment as if set forth herein in their entirety.
B. Limitation of Amendment. Except for the amendments expressly
set forth above, the Registration Rights Agreement shall remain unchanged and
in full force and effect.
C. Waiver and Consent Agreement. This Amendment supersedes the
Waiver and Consent Agreement, dated as of June 7, 2002, by and among the
Parties.
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IN WITNESS WHEREOF, this Amendment has been executed as of the date
and year first above written.
THE "COMPANY"
CARMIKE CINEMAS, INC.
By:
----------------------------------------
Name:
Title:
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THE "HOLDERS"
XXXXXXX X. XXXXXXX, as an individual
By:
----------------------------------------
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GS CAPITAL PARTNERS III, L.P.
By: GS Advisors III, L.L.C.,
Its General Partner
By:
----------------------------------------
Name:
Title:
GS CAPITAL PARTNERS III OFFSHORE, L.P.
By: GS Advisors III, L.L.C.,
Its General Partner
By:
----------------------------------------
Name:
Title:
XXXXXXX SACHS & CO. VERWALTUNGS GMBH
By:
By:
----------------------------------------
Name:
Title:
0
XXXXXX XXXXXX XXXX 0000, L.P.
BY: Stone Street 1998, L.L.C.,
Its General Partner
By:
----------------------------------------
Name:
Title:
XXXXX XXXXXX XXXX 0000, X.X.
BY: Xxxxx Xxxxxx 0000, X.X.X.
Its General Partner
By:
----------------------------------------
Name:
Title:
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THE JORDAN TRUST
By:
----------------------------------------
Name: Xxxx X. Xxxxxx XX
Title: Trustee
TJT(B)
By:
----------------------------------------
Name: Xxxx X. Xxxxxx XX
Title: Trustee
TJT(B) (BERMUDA) INVESTMENT COMPANY LTD.
By:
----------------------------------------
Name: Xxxx X. Xxxxxx XX
Title: President
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XXXXX X. XXXXXXXXX AND XXXXXXX XXXXXXXXX,
JT TEN
By:
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
By:
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
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LEUCADIA INVESTORS, INC.
By:
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
LEUCADIA NATIONAL CORPORATION
By:
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President and
Chief Financial Officer
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