-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, II39GRlrUECiXCQQ4CBBrKLlFRI4P+y+2MV6QE17ZmRkX5o32MWLKjsl76TUP/XQ lFIRLrEWbslfsel02keAkw== 0000895345-04-000036.txt : 20040202 0000895345-04-000036.hdr.sgml : 20040202 20040202165410 ACCESSION NUMBER: 0000895345-04-000036 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040202 GROUP MEMBERS: BRIDGE STREET FUND 1998, L.P. GROUP MEMBERS: GOLDMAN, SACHS & CO. GROUP MEMBERS: GOLDMAN, SACHS & CO. OHG GROUP MEMBERS: GS ADVISORS III, L.L.C. GROUP MEMBERS: GS CAPITAL PARTNERS III GERMANY CIVIL LAW PARTNERSHIP GROUP MEMBERS: GS CAPITAL PARTNERS III OFFSHORE, L.P. GROUP MEMBERS: GS CAPITAL PARTNERS III, L.P. GROUP MEMBERS: STONE STREET 1998, L.L.C. GROUP MEMBERS: STONE STREET FUND 1998, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CARMIKE CINEMAS INC CENTRAL INDEX KEY: 0000799088 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MOTION PICTURE THEATERS [7830] IRS NUMBER: 581469127 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-37737 FILM NUMBER: 04559773 BUSINESS ADDRESS: STREET 1: 1301 FIRST AVE CITY: COLUMBUS STATE: GA ZIP: 31901 BUSINESS PHONE: 7065763400 MAIL ADDRESS: STREET 1: P O BOX 391 CITY: COLUMBUS STATE: GA ZIP: 31994 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC/ CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 134019460 STATE OF INCORPORATION: DE FISCAL YEAR END: 1128 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 SC 13D/A 1 ml13da.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 2) CARMIKE CINEMAS, INC. - ------------------------------------------------------------------------ (Name of Issuer) COMMON STOCK, PAR VALUE $.03 PER SHARE - ------------------------------------------------------------------------ (Title of Class of Securities) 143436400 ------------------------------------------------------------ (CUSIP Number) BEN I. ADLER, ESQ. GOLDMAN, SACHS & CO. 85 BROAD STREET NEW YORK, NY 10004 (212) 902-1000 ------------------------------------------------------------ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) JANUARY 29, 2004 ------------------------------------------------------------ (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box: [ ] *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act, but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP No. 143436400 Page 2 of 28 1. NAME OF REPORTING PERSON. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GOLDMAN, SACHS & CO. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [x] 3. SEC USE ONLY 4. SOURCE OF FUNDS AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [x] 6. CITIZENSHIP OR PLACE OF ORGANIZATION NEW YORK NUMBER OF 7. SOLE VOTING POWER SHARES 0 BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH 3,076,662 REPORTING 9. SOLE DISPOSITIVE POWER PERSON WITH 0 10. SHARED DISPOSITIVE POWER 3,076,662 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,076,662* 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.5%** 14. TYPE OF REPORTING PERSON BD-PN-IA * If the underwriters party to the underwriting agreement, dated January 29, 2004 (the "Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the Underwriting Agreement (the "Over-Allotment Option") in full then this amount will decrease by 383,406 shares to 2,693,256 shares. The Over-Allotment Option is exercisable within 30 days after the date of the Underwriting Agreement. ** If the underwriters party to the Underwriting Agreement exercise the Over-Allotment Option in full then this percentage will equal 22.3%. SCHEDULE 13D CUSIP No. 143436400 Page 3 of 28 1. NAME OF REPORTING PERSON. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON THE GOLDMAN SACHS GROUP, INC. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF 7. SOLE VOTING POWER SHARES 0 BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH 3,076,662 REPORTING 9. SOLE DISPOSITIVE POWER PERSON WITH 0 10. SHARED DISPOSITIVE POWER 3,076,662 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,076,662* 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.5%** 14. TYPE OF REPORTING PERSON HC-CO * If the underwriters party to the underwriting agreement, dated January 29, 2004 (the "Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the Underwriting Agreement (the "Over-Allotment Option") in full then this amount will decrease by 383,406 shares to 2,693,256 shares. The Over-Allotment Option is exercisable within 30 days after the date of the Underwriting Agreement. ** If the underwriters party to the Underwriting Agreement exercise the Over-Allotment Option in full then this percentage will equal 22.3%. SCHEDULE 13D CUSIP No. 143436400 Page 4 of 28 1. NAME OF REPORTING PERSON. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GS CAPITAL PARTNERS III, L.P. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS WC 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF 7. SOLE VOTING POWER SHARES 0 BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH 2,095,781 REPORTING 9. SOLE DISPOSITIVE POWER PERSON WITH 0 10. SHARED DISPOSITIVE POWER 2,095,781 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,095,781* 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.3%** 14. TYPE OF REPORTING PERSON PN * If the underwriters party to the underwriting agreement, dated January 29, 2004 (the "Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the Underwriting Agreement (the "Over-Allotment Option") in full then this amount will decrease by 261,200 shares to 1,834,581 shares. The Over-Allotment Option is exercisable within 30 days after the date of the Underwriting Agreement. ** If the underwriters party to the Underwriting Agreement exercise the Over-Allotment Option in full then this percentage will equal 15.2%. SCHEDULE 13D CUSIP No. 143436400 Page 5 of 28 1. NAME OF REPORTING PERSON. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GS CAPITAL PARTNERS III OFFSHORE, L.P. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS WC 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION CAYMAN ISLANDS NUMBER OF 7. SOLE VOTING POWER SHARES 0 BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH 576,155 REPORTING 9. SOLE DISPOSITIVE POWER PERSON WITH 0 10. SHARED DISPOSITIVE POWER 576,155 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 576,155* 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.8%* 14. TYPE OF REPORTING PERSON PN * If the underwriters party to the underwriting agreement, dated January 29, 2004 (the "Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the Underwriting Agreement (the "Over-Allotment Option") in full then this amount will decrease by 71,807 shares to 504,348 shares. The Over-Allotment Option is exercisable within 30 days after the date of the Underwriting Agreement. ** If the underwriters party to the Underwriting Agreement exercise the Over-Allotment Option in full then this percentage will equal 4.2%. SCHEDULE 13D CUSIP No. 143436400 Page 6 of 28 1. NAME OF REPORTING PERSON. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GS ADVISORS III, L.L.C. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF 7. SOLE VOTING POWER SHARES 0 BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH 2,671,936 REPORTING 9. SOLE DISPOSITIVE POWER PERSON WITH 0 10. SHARED DISPOSITIVE POWER 2,671,936 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,671,936* 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 22.1%** 14. TYPE OF REPORTING PERSON OO * If the underwriters party to the underwriting agreement, dated January 29, 2004 (the "Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the Underwriting Agreement (the "Over-Allotment Option") in full then this amount will decrease by 333,007 shares to 2,338,929 shares. The Over-Allotment Option is exercisable within 30 days after the date of the Underwriting Agreement. ** If the underwriters party to the Underwriting Agreement exercise the Over-Allotment Option in full then this percentage will equal 19.3%. SCHEDULE 13D CUSIP No. 143436400 Page 7 of 28 1. NAME OF REPORTING PERSON. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GS CAPITAL PARTNERS III GERMANY CIVIL LAW PARTNERSHIP 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS WC 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION GERMANY NUMBER OF 7. SOLE VOTING POWER SHARES 0 BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH 96,751 REPORTING 9. SOLE DISPOSITIVE POWER PERSON WITH 0 10. SHARED DISPOSITIVE POWER 96,751 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 96,751* 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.8%** 14. TYPE OF REPORTING PERSON PN * If the underwriters party to the underwriting agreement, dated January 29, 2004 (the "Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the Underwriting Agreement (the "Over-Allotment Option") in full then this amount will decrease by 12,058 shares to 84,693 shares. The Over-Allotment Option is exercisable within 30 days after the date of the Underwriting Agreement. ** If the underwriters party to the Underwriting Agreement exercise the Over-Allotment Option in full then this percentage will equal 0.7%. SCHEDULE 13D CUSIP No. 143436400 Page 8 of 28 1. NAME OF REPORTING PERSON. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GOLDMAN, SACHS & CO. OHG 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION GERMANY NUMBER OF 7. SOLE VOTING POWER SHARES 0 BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH 96,751 REPORTING 9. SOLE DISPOSITIVE POWER PERSON WITH 0 10. SHARED DISPOSITIVE POWER 96,751 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 96,751* 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.8%** 14. TYPE OF REPORTING PERSON PN * If the underwriters party to the underwriting agreement, dated January 29, 2004 (the "Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the Underwriting Agreement (the "Over-Allotment Option") in full then this amount will decrease by 12,058 shares to 84,693 shares. The Over-Allotment Option is exercisable within 30 days after the date of the Underwriting Agreement. ** If the underwriters party to the Underwriting Agreement exercise the Over-Allotment Option in full then this percentage will equal 0.7%. SCHEDULE 13D CUSIP No. 143436400 Page 9 of 28 1. NAME OF REPORTING PERSON. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON BRIDGE STREET FUND 1998, L.P. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS WC 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF 7. SOLE VOTING POWER SHARES 0 BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH 71,319 REPORTING 9. SOLE DISPOSITIVE POWER PERSON WITH 0 10. SHARED DISPOSITIVE POWER 71,319 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 71,319* 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.6%** 14. TYPE OF REPORTING PERSON PN * If the underwriters party to the underwriting agreement, dated January 29, 2004 (the "Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the Underwriting Agreement (the "Over-Allotment Option") in full then this amount will decrease by 8,889 shares to 62,430 shares. The Over-Allotment Option is exercisable within 30 days after the date of the Underwriting Agreement. ** If the underwriters party to the Underwriting Agreement exercise the Over-Allotment Option in full then this percentage will equal 0.5%. SCHEDULE 13D CUSIP No. 143436400 Page 10 of 28 1. NAME OF REPORTING PERSON. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON STONE STREET FUND 1998, L.P. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS WC 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF 7. SOLE VOTING POWER SHARES 0 BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH 236,312 REPORTING 9. SOLE DISPOSITIVE POWER PERSON WITH 0 10. SHARED DISPOSITIVE POWER 236,312 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 236,312* 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.0%** 14. TYPE OF REPORTING PERSON PN * If the underwriters party to the underwriting agreement, dated January 29, 2004 (the "Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the Underwriting Agreement (the "Over-Allotment Option") in full then this amount will decrease by 29,452 shares to 206,860 shares. The Over-Allotment Option is exercisable within 30 days after the date of the Underwriting Agreement. ** If the underwriters party to the Underwriting Agreement exercise the Over-Allotment Option in full then this percentage will equal 1.7%. SCHEDULE 13D CUSIP No. 143436400 Page 11 of 28 1. NAME OF REPORTING PERSON. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON STONE STREET 1998, L.L.C. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6. CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF 7. SOLE VOTING POWER SHARES 0 BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH 307,631 REPORTING 9. SOLE DISPOSITIVE POWER PERSON WITH 0 10. SHARED DISPOSITIVE POWER 307,631 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 307,631* 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.5%** 14. TYPE OF REPORTING PERSON OO * If the underwriters party to the underwriting agreement, dated January 29, 2004 (the "Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the Underwriting Agreement (the "Over-Allotment Option") in full then this amount will decrease by 38,341 shares to 269,290 shares. The Over-Allotment Option is exercisable within 30 days after the date of the Underwriting Agreement. ** If the underwriters party to the Underwriting Agreement exercise the Over-Allotment Option in full then this percentage will equal 2.2%. This Amendment No. 2, filed by GS Capital Partners III, L.P. ("GS Capital III"), GS Capital Partners III Offshore, L.P. ("GS Offshore"), GS Capital Partners III Germany Civil Law Partnership ("GS Germany"), Stone Street Fund 1998, L.P. ("Stone 1998"), Bridge Street Fund 1998, L.P. ("Bridge 1998" and, together with GS Capital III, GS Offshore, GS Germany and Stone 1998, the "Limited Partnerships"), GS Advisors III, L.L.C. ("GS Advisors"), Goldman, Sachs & Co. oHG ("GS oHG"), Stone Street 1998, L.L.C. ("Stone L.L.C."), Goldman, Sachs & Co. ("Goldman Sachs") and The Goldman Sachs Group, Inc. ("GS Group" and, together with Goldman Sachs, Stone L.L.C., GS oHG, GS Advisors and the Limited Partnerships, the "Filing Persons")(1), amends and supplements the Schedule 13D filed by the Filing Persons with the Securities and Exchange Commission (the "SEC") on October 8, 1999 (as amended by Amendment No. 1 filed on February 8, 2002, the "Schedule 13D") relating to the Class A common stock, par value $.03 per share (the "Class A Common Stock"), of Carmike Cinemas, Inc., a Delaware corporation (the "Company"). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Schedule 13D. - ------------------- (1) Neither the present filing nor anything contained herein shall be construed as an admission that any Filing Person constitutes a "person" for any purpose other than for compliance with Section 13(d) of the Securities Exchange Act of 1934. ITEM 2. IDENTITY AND BACKGROUND. Item 2 is hereby amended by amending Schedules I, II-A-i, II-A-ii, II-B, II-C-i, II-C-ii and III hereto to read in their entirety as attached hereto. ITEM 4. PURPOSE OF TRANSACTION. Item 4 is hereby amended by replacing the final paragraph thereof with the following: On January 29, 2004, the Limited Partnerships entered into an Underwriting Agreement (the "Underwriting Agreement") with the Company, the other selling stockholders listed in Schedule II to the Underwriting Agreement (together with the Limited Partnerships, the "Selling Stockholders") and Goldman Sachs, as representative of the several underwriters listed in Schedule I to the Underwriting Agreement (Goldman Sachs and such other underwriters, collectively, the "Underwriters"). The Underwriting Agreement provides for purchases by the Underwriters (i) from the Company of 3,000,000 shares of Class A Common Stock and (ii) from the Selling Stockholders of 1,850,000 shares of Class A Common Stock (collectively, the "Initial Sale"). Of the 1,850,000 shares of Class A Common Stock to be sold by the Selling Stockholders in the Initial Sale, the Limited Partnerships have agreed to sell, in the aggregate, 1,123,209 shares. In addition, pursuant to the Underwriting Agreement, the Selling Stockholders granted the Underwriters an option, exercisable within 30 days after the date of the Underwriting Agreement, to purchase an additional 675,000 shares of Class A Common Stock at the same purchase price per share for the purpose of covering over-allotments (the "Over-Allotment Option"). Of the 675,000 shares of Class A Common Stock to be sold by the Selling Stockholders upon the exercise in full by the Underwriters of the Over-Allotment Option, the Limited Partnerships have agreed to sell, in the aggregate, 383,406 shares. Pursuant to the final prospectus (the "Offering Prospectus") filed by the Company on January 30, 2004 (the "Offering Prospectus Date") pursuant to Rule 424 of the Securities Act of 1933 (as amended, the "Securities Act"), the public offering price in the public offering of Class A Common Stock by the Company is $32.00 per share and the underwriting discount is $1.92 per share. Pursuant to the Underwriting Agreement, the Underwriters agreed to purchase shares of Class A Common Stock in the Initial Sale and upon exercise of the Over-Allotment Option at a price per share of $30.08 (which is net of underwriting discounts and commissions). The Underwriting Agreement contains standard terms and conditions for a public offering including customary representations and warranties and indemnity provisions. Pursuant to the Underwriting Agreement, Goldman Sachs, as an Underwriter, agreed to purchase 1,455,000 shares of Class A Common Stock in the Initial Sale and an additional 202,500 shares of Class A Common Stock if the Underwriters exercise the Over-Allotment Option in full. The foregoing description of the Underwriting Agreement is not intended to be complete and is qualified in its entirety by the complete text of the Underwriting Agreement, a copy of which is filed as Exhibit 99.14 hereto. Pursuant to the Underwriting Agreement, the Limited Partnerships have agreed to sell an aggregate of 1,506,615 shares of Class A Common Stock to the Underwriters, consisting of (i) an aggregate of 1,123,209 shares of Class A Common Stock to be sold upon consummation of the Initial Sale and (ii) an aggregate of 383,406 shares of Class A Common Stock to be sold upon exercise in full by the Underwriters of the Over-Allotment Option, in each case, at a price per share of $30.08 (which is net of underwriting discounts and commissions), for an aggregate amount of $45,318,979.20 (which consists of $33,786,126.72 that will be received by the Limited Partnerships upon consummation of the Initial Sale and $11,532,852.48 that would be received by the Limited Partnerships if the Underwriters exercise the Over-Allotment Option in full). The consummation of the Initial Sale is expected to occur on February 4, 2004 (the "Initial Sale Closing Date") as reported by the Company in the Offering Prospectus. Each of the Filing Persons reserves the right, in light of its ongoing evaluation of the Company's financial condition, business, operations and prospects, the market price of the Class A Common Stock, conditions in the securities markets generally, general economic and industry conditions, its business objectives and other relevant factors, to change its plans and intentions at any time, as it deems appropriate. In particular, any one or more of the Filing Persons (and their respective affiliates) reserves the right (subject to any applicable limitations imposed on the sale of any of their Company securities by the Securities Act or other applicable law) to (i) purchase additional shares of Class A Common Stock or other securities of the Company, (ii) sell or transfer shares of Class A Common Stock beneficially owned by them from time to time in public or private transactions, (iii) enter into privately negotiated derivative transactions with institutional counterparties to hedge the market risk of some or all of their positions in the shares of Class A Common Stock and (iv) cause any of the Limited Partnerships to distribute in kind to their respective partners shares of Class A Common Stock or other securities of the Company owned by such Limited Partnerships. To the knowledge of each Filing Person, each of the persons listed on Schedules I, II-A-i, II-A-ii, II-B, II-C-i and II-C-ii hereto may make similar evaluations from time to time or on an ongoing basis. Except as described in this Schedule 13D and except for arrangements between and among the Filing Persons, none of the Filing Persons has any contracts, agreements, arrangements, understandings or relationships with any other person or entity for the purpose of acquiring, holding, voting or disposing of any shares of Class A Common Stock. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Items 5(a)-(e) are hereby amended in their entirety as follows: (a) Based on information reported by the Company in the Offering Prospectus, assuming that the Initial Sale is consummated on February 4, 2004, there will be 12,088,512 shares of Class A Common Stock outstanding as of the close of business on February 4, 2004. As of February 4, 2004, GS Capital III may be deemed to beneficially own 2,095,781 shares of Class A Common Stock, representing approximately 17.3% of the shares of Class A Common Stock outstanding as of February 4, 2004, assuming consummation of the Initial Sale on February 4, 2004; provided, however, that if the Underwriters exercise the Over-Allotment Option in full, then GS Capital III may be deemed to beneficially own 1,834,581 shares of Class A Common Stock, representing approximately 15.2% of the shares of Class A Common Stock outstanding as of February 4, 2004. As of February 4, 2004, GS Offshore may be deemed to beneficially own 576,155 shares of Class A Common Stock, representing approximately 4.8% of the shares of Class A Common Stock outstanding as of February 4, 2004, assuming consummation of the Initial Sale on February 4, 2004; provided, however, that if the Underwriters exercise the Over-Allotment Option in full, then GS Offshore may be deemed to beneficially own 504,348 shares of Class A Common Stock, representing approximately 4.2% of the shares of Class A Common Stock outstanding as of February 4, 2004. As of February 4, 2004, GS Advisors, as the sole general partner of each of GS Capital III and GS Offshore, may be deemed to beneficially own 2,671,936 shares of Class A Common Stock, representing approximately 22.1% of the shares of Class A Common Stock outstanding as of February 4, 2004, assuming consummation of the Initial Sale on February 4, 2004; provided, however, that if the Underwriters exercise the Over-Allotment Option in full, then GS Advisors, as the sole general partner of each of GS Capital III and GS Offshore, may be deemed to beneficially own 2,338,929 shares of Class A Common Stock, representing approximately 19.3% of the shares of Class A Common Stock outstanding as of February 4, 2004. As of February 4, 2004, GS Germany may be deemed to beneficially own, and its managing partner, GS oHG, may be deemed to beneficially own, an aggregate of 96,751 shares of Class A Common Stock, representing approximately 0.8% of the shares of Class A Common Stock outstanding as of February 4, 2004, assuming consummation of the Initial Sale on February 4, 2004; provided, however, that if the Underwriters exercise the Over-Allotment Option in full, then GS Germany may be deemed to beneficially own, and its managing partner, GS oHG, may be deemed to beneficially own, an aggregate of 84,693 shares of Class A Common Stock, representing approximately 0.7% of the shares of Class A Common Stock outstanding as of February 4, 2004. As of February 4, 2004, Stone 1998 may be deemed to beneficially own 236,312 shares of Class A Common Stock, representing approximately 2.0% of the shares of Class A Common Stock outstanding as of February 4, 2004, assuming consummation of the Initial Sale on February 4, 2004; provided, however, that if the Underwriters exercise the Over-Allotment Option in full, then Stone 1998 may be deemed to beneficially own 206,860 shares of Class A Common Stock, representing approximately 1.7% of the shares of Class A Common Stock outstanding as of February 4, 2004. As of February 4, 2004, Bridge 1998 may be deemed to beneficially own 71,319 shares of Class A Common Stock, representing approximately 0.6% of the shares of Class A Common Stock outstanding as of February 4, 2004, assuming consummation of the Initial Sale on February 4, 2004; provided, however, that if the Underwriters exercise the Over-Allotment Option in full, then Bridge 1998 may be deemed to beneficially own 62,430 shares of Class A Common Stock, representing approximately 0.5% of the shares of Class A Common Stock outstanding as of February 4, 2004. As of February 4, 2004, Stone L.L.C., as the sole general partner of Stone 1998 and the sole managing general partner of Bridge 1998, may be deemed to beneficially own 307,631 shares of Class A Common Stock, representing approximately 2.5% of the shares of Class A Common Stock outstanding as of February 4, 2004, assuming consummation of the Initial Sale on February 4, 2004; provided, however, that if the Underwriters exercise the Over-Allotment Option in full, then Stone L.L.C., as the sole general partner of Stone 1998 and the sole managing general partner of Bridge 1998, may be deemed to beneficially own 269,290 shares of Class A Common Stock, representing approximately 2.2% of the shares of Class A Common Stock outstanding as of February 4, 2004. As of February 4, 2004, each of Goldman Sachs and GS Group may be deemed to beneficially own an aggregate of 3,076,662 shares of Class A Common Stock, consisting of (i) 3,076,318 shares of Class A Common Stock that may be deemed to be beneficially owned by the Limited Partnerships as described above and (ii) 344 shares of Class A Common Stock acquired by Goldman Sachs in ordinary course trading activities, representing approximately 25.5% of the shares of Class A Common Stock outstanding as of February 4, 2004, assuming consummation of the Initial Sale on February 4, 2004; provided, however, that if the Underwriters exercise the Over-Allotment Option in full, then each of Goldman Sachs and GS Group may be deemed to beneficially own an aggregate of 2,693,256 shares of Class A Common Stock, consisting of (i) 2,692,912 shares of Class A Common Stock that may be deemed to be beneficially owned by the Limited Partnerships as described above and (ii) 344 shares of Class A Common Stock acquired by Goldman Sachs in ordinary course trading activities, representing approximately 22.3% of the shares of Class A Common Stock outstanding as of February 4, 2004. Each of Goldman Sachs and GS Group disclaims beneficial ownership of the shares of Class A Common Stock that may be deemed to be beneficially owned by the Limited Partnerships to the extent of partnership interests in the Limited Partnerships held by persons other than Goldman Sachs, GS Group or their affiliates. In accordance with SEC Release No. 34-39538 (January 12, 1998), this filing reflects the securities beneficially owned by the investment banking division of GS Group and its subsidiaries and affiliates (collectively, "IBD"). This filing does not reflect securities, if any, beneficially owned by any other operating unit of GS Group. IBD disclaims beneficial ownership of the securities beneficially owned by (i) any client accounts with respect to which IBD or its employees have voting or investment discretion, or both, and (ii) certain investment entities, of which IBD is the general partner, managing general partner or other manager, to the extent interests in such entities are held by persons other than IBD. None of the Filing Persons or, to the knowledge of any of the Filing Persons, any of the persons listed on Schedules I, II-A-i, II-A-ii, II-B, II-C-i or II-C-ii hereto, may be deemed to beneficially own any shares of Class A Common Stock as of February 4, 2004 other than as set forth herein. (b) Each Filing Person shares the power to vote or direct the vote and to dispose or to direct the disposition of shares of Class A Common Stock beneficially owned by such Filing Person as indicated in pages 2 through 11 above. (c) Except for the purchase by Goldman Sachs of 44 shares of Class A Common Stock on January 20, 2004 in the ordinary course of its business, which purchase was effected on the Pacific Stock Exchange at a price per share of $34.88 (exclusive of commissions), no transactions in the shares of Class A Common Stock were effected by any of the Filing Persons or, to the knowledge of any of the Filing Persons, any of the persons listed on Schedules I, II-A-i, II-A-ii, II-B, II-C-i or II-C-ii hereto, during the past sixty days. (d) No other person is known by any Filing Person to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of Class A Common Stock beneficially owned by any Filing Person. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Item 6 is hereby amended by adding the following at the end thereof: The responses set forth in Items 3 and 4 of this Schedule 13D are incorporated herein by reference in their entirety. Lock-Up Agreement. In connection with the Initial Sale, the Company, its executive officers and directors and the Selling Stockholders have agreed not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Class A Common Stock, or any options or warrants to purchase any shares of Class A Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Class A Common Stock, whether owned at the time of such agreement or acquired thereafter, owned directly by such person (including holding as a custodian) or with respect to which such person has beneficial ownership within the rules and regulations of the SEC during the period beginning from the Offering Prospectus Date and continuing to and including the date that is 165 days after the Offering Prospectus Date, without the prior written consent of Goldman Sachs as representative of the Underwriters (the "Lock-Up Agreement"). The foregoing description of the Lock-Up Agreement is not intended to be complete and is qualified in its entirety by the complete text of the Lock-Up Agreement, the form of which is filed as Exhibit 99.15 hereto. Letter Agreement. The Company and the Signing Stockholders entered into a letter agreement, dated November 17, 2003 (the "Letter Agreement"), pursuant to which, among other things, (i) each of the parties thereto agreed to waive the provisions of Section 3 of the Stockholders Agreement for purposes of the shares of Class A Common Stock held by the Signing Stockholders to be sold in the proposed offering of the Company's Class A Common Stock (the "Proposed Offering") pursuant to a registration statement on Form S-1 (Commission File No. 333-90028) (the "Registration Statement"), (ii) each of the Signing Stockholders agreed to waive the requirement pursuant to Section 4(a) of the Registration Rights Agreement that it receive the 20-day advance written notice from the Company of the filing of the Registration Statement with respect to the Proposed Offering and (iii) the Company waived the requirement that each Signing Stockholder provide to the Company the written request pursuant to Section 4(a) of the Registration Rights Agreement with respect to the inclusion of shares of Class A Common Stock held by such Signing Stockholder in the Proposed Offering. The foregoing description of the Letter Agreement is not intended to be complete and is qualified in its entirety by the complete text of the Letter Agreement, which is filed as Exhibit 99.17 hereto. Stockholders Agreement Amendment. The Company and the Signing Stockholders entered into the First Amendment to the Stockholders' Agreement, dated as of May 9, 2003 (the "Amendment"), pursuant to which, among other things, the parties thereto agreed to amend Sections 1.1(e) and 1.2 of the Stockholders Agreement. Section 1.1(e) of the Stockholders Agreement provided that the Signing Stockholders agree to vote their shares in a manner necessary to elect, among other persons, the following individual to the Company's Board of Directors: one (1) member of the Board of Directors, who shall be an Independent Director, designated from time to time in a writing delivered to the Company and signed by the CEO and approved by a majority of the members of the Board of Directors. The Amendment adds the following language to the end of Section 1.1(e) of the Stockholders Agreement: "provided that for purposes of the CEO designating any Board Designee pursuant to this Agreement, Mr. Roland C. Smith shall be deemed an Independent Director." Section 1.2 of the Stockholders Agreement provided that initially, the Company's Board of Directors shall consist of ten directors, at least three of whom shall be Independent Directors, and each director shall be designated as prescribed in Section 1.1 of the Stockholders Agreement. The Amendment replaces Section 1.2 of the Stockholders Agreement in its entirety with the following language: "Notwithstanding the foregoing, the Parties understand and agree that the Board of Directors may consist of up to twelve directors, ten of whom shall be designated as prescribed in Section 1.1 and two of whom may be elected according to the By-Laws. Three of the ten directors designated as prescribed in Section 1.1 shall be Independent Directors." The foregoing description of the Amendment is not intended to be complete and is qualified in its entirety by the complete text of the Amendment, which is filed as Exhibit 99.16 hereto. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Item 7 is hereby amended to add the following at the end thereof: Exhibit 99.14 Underwriting Agreement, dated January 29, 2004, by and among Carmike Cinemas, Inc., the Selling Stockholders listed in Schedule II thereto and Goldman, Sachs & Co., as representative of the several underwriters listed in Schedule I thereto. Exhibit 99.15 Form of Lock-Up Agreement. Exhibit 99.16 First Amendment to Stockholders' Agreement, dated as of May 9, 2003 (incorporated herein by reference to Exhibit 4.4 to the Company's Registration Statement on Amendment No. 2 to Form S-1 No. 333-90028). Exhibit 99.17 Letter Agreement, dated November 17, 2003 (incorporated herein by reference to Exhibit 4.5 to the Company's Registration Statement on Amendment No. 2 to Form S-1 No. 333-90028). SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. February 2, 2004 GOLDMAN, SACHS & CO. By: /s/ Roger S. Begelman ------------------------ Name: Roger S. Begelman Title: Attorney-in-fact THE GOLDMAN SACHS GROUP, INC. By: /s/ Roger S. Begelman ------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GS ADVISORS III, L.L.C. By: /s/ Roger S. Begelman ------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GS CAPITAL PARTNERS III, L.P. By: /s/ Roger S. Begelman ------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GS CAPITAL PARTNERS III OFFSHORE, L.P. By: /s/ Roger S. Begelman ------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GS CAPITAL PARTNERS III GERMANY CIVIL LAW PARTNERSHIP (with limitation of liability) By: /s/ Roger S. Begelman ------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GOLDMAN, SACHS & CO. oHG By: /s/ Roger S. Begelman ------------------------ Name: Roger S. Begelman Title: Attorney-in-fact STONE STREET FUND 1998, L.P. By: /s/ Roger S. Begelman ------------------------ Name: Roger S. Begelman Title: Attorney-in-fact BRIDGE STREET FUND 1998, L.P. By: /s/ Roger S. Begelman ------------------------ Name: Roger S. Begelman Title: Attorney-in-fact STONE STREET 1998, L.L.C. By: /s/ Roger S. Begelman ------------------------ Name: Roger S. Begelman Title: Attorney-in-fact EXHIBITS Exhibit 99.14 Underwriting Agreement, dated January 29, 2004, by and among Carmike Cinemas, Inc., the Selling Stockholders listed in Schedule II thereto and Goldman, Sachs & Co., as representative of the several underwriters listed in Schedule I thereto. Exhibit 99.15 Form of Lock-Up Agreement. Exhibit 99.16 First Amendment to Stockholders' Agreement, dated as of May 9, 2003 (incorporated herein by reference to Exhibit 4.4 to the Company's Registration Statement on Amendment No. 2 to Form S-1 No. 333-90028). Exhibit 99.17 Letter Agreement, dated November 17, 2003 (incorporated herein by reference to Exhibit 4.5 to the Company's Registration Statement on Amendment No. 2 to Form S-1 No. 333-90028). SCHEDULE I ---------- The name of each director of The Goldman Sachs Group, Inc. is set forth below. The business address of each person listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, NY 10004. Each person is a citizen of the United States of America except for Lord Browne of Madingley, who is a citizen of the United Kingdom and Claes Dahlback, who is a citizen of Sweden. The present principal occupation or employment of each of the listed persons is set forth below. Name Present Principal Occupation - -------------------------------------------------------------------------------- Henry M. Paulson, Jr. Chairman and Chief Executive Officer of The Goldman Sachs Group, Inc. Lloyd C. Blankfein President and Chief Operating Officer of The Goldman Sachs Group, Inc. Lord Browne of Madingley Group Chief Executive of BP plc John H. Bryan Retired Chairman and Chief Executive Officer of Sara Lee Corporation Claes Dahlback Nonexecutive Chairman of Investor AB William W. George Retired Chairman and Chief Executive Officer of Medtronic, Inc. James A. Johnson Vice Chairman of Perseus, L.L.C. Edward M. Liddy Chairman of the Board, President and Chief Executive Officer of The Allstate Corporation Ruth J. Simmons President of Brown University SCHEDULE II-A-i --------------- The name, position and present principal occupation of each executive officer of GS Advisors III, L.L.C., the sole general partner of each of GS Capital Partners III, L.P. and GS Capital Partners III Offshore, L.P., are set forth below. The business address for all the executive officers listed below is 85 Broad Street, New York, New York 10004, except as follows: The business address of Richard S. Sharp, Antoine L. Schwartz, Hughes B. Lepic, Stephen S. Trevor, Atul Kapur, Robert G. Doumar, Jr. and Ulrika Werdelin is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The business address of Mary Nee is Cheung Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong. The business address of Joseph P. DiSabato is 555 California Street, 45th Floor, San Francisco, CA 94104. The business address of Gene T. Sykes is Fox Plaza, Suite 2600, 2121 Avenue of the Stars, Los Angeles, CA 90067. The business address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL 60606. All executive officers listed below are United States citizens, except as follows: Richard S. Sharp is a citizen of the United Kingdom. Atul Kapur is a citizen of Singapore. Antoine L. Schwartz and Hughes B. Lepic are citizens of France. Adrian M. Jones is a citizen of Ireland. Ulrika Werdelin is a citizen of Sweden.
Name Position Present Principal Occupation - -------------------------- ---------------------- ------------------------------------------ Richard A. Friedman President Managing Director of Goldman, Sachs & Co. Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs & Co Terence M. O'Toole Vice President Managing Director of Goldman, Sachs & Co. Henry Cornell Vice President Managing Director of Goldman, Sachs & Co. Richard S. Sharp Vice President Managing Director of Goldman Sachs International Esta E. Stecher Assistant Secretary Managing Director of Goldman, Sachs & Co. Barry S. Volpert Vice President Managing Director of Goldman Sachs International Sanjeev K. Mehra Vice President Managing Director of Goldman, Sachs & Co. Muneer A. Satter Vice President Managing Director of Goldman, Sachs & Co. Antoine L. Schwartz Vice President Managing Director of Goldman Sachs International Steven M. Bunson Assistant Secretary Managing Director of Goldman, Sachs & Co. Elizabeth C. Fascitelli Treasurer Managing Director of Goldman, Sachs & Co. David M. Weil Assistant Treasurer Managing Director of Goldman, Sachs & Co. David J. Greenwald Assistant Secretary Managing Director of Goldman, Sachs & Co. Hughes B. Lepic Vice President Managing Director of Goldman Sachs International Russell E. Makowsky Assistant Secretary Managing Director of Goldman, Sachs & Co. Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs & Co. Randall A. Blumenthal Vice President Managing Director of Goldman, Sachs & Co. Douglas F. Londal Vice President Managing Director of Goldman, Sachs & Co. Stephen S. Trevor Vice President Managing Director of Goldman Sachs International Abraham Bleiberg Vice President Managing Director of Goldman, Sachs & Co. Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs & Co. Robert R. Gheewalla Vice President Managing Director of Goldman, Sachs & Co. Atul Kapur Vice President Managing Director of Goldman Sachs International Robert G. Doumar, Jr. Vice President Managing Director of Goldman Sachs International Ben I. Adler Vice President Managing Director of Goldman, Sachs & Co. Melina E. Higgins Vice President Managing Director of Goldman, Sachs & Co. Adrian M. Jones Vice President Managing Director of Goldman, Sachs & Co. Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs & Co. Mitchell S. Weiss Vice President Vice President of Goldman, Sachs & Co. Elizabeth C. Marcellino Vice President Managing Director of Goldman, Sachs & Co. John E. Bowman Vice President Vice President of Goldman, Sachs & Co. Katherine B. Enquist Vice President/Secretary Managing Director of Goldman, Sachs & Co. James B. McHugh Assistant Secretary Vice President of Goldman, Sachs & Co. Beverly L. O'Toole Assistant Secretary Vice President of Goldman, Sachs & Co. Matthew E. Tropp Assistant Secretary Vice President of Goldman, Sachs & Co. Mary Nee Vice President Executive Director of Goldman Sachs (Asia) L.L.C. Ulrika Werdelin Vice President Executive Director of Goldman Sachs International
SCHEDULE II-A-ii ---------------- The name and principal occupation of each member of the Principal Investment Area Investment Committee of Goldman, Sachs & Co., which exercises the authority of Goldman, Sachs & Co. in managing GS Advisors III, L.L.C., are set forth below. The business address for each member listed below is 85 Broad Street, New York, New York 10004, except as follows: The business address of Gene T. Sykes is Fox Plaza, Suite 2600, 2121 Avenue of the Stars, Los Angeles, CA 90067. The business address of Richard S. Sharp and Antoine L. Schwartz is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The business address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL 60606. All members listed below are United States citizens, except as follows: Richard S. Sharp is a citizen of the United Kingdom and Antoine L. Schwartz is a citizen of France. Name Present Principal Occupation - ------------------------------------------------------------------------------ Peter M. Sacerdote Advisory Director of Goldman, Sachs & Co. Richard A. Friedman Managing Director of Goldman, Sachs & Co. Joseph H. Gleberman Managing Director of Goldman, Sachs & Co. Terence M. O'Toole Managing Director of Goldman, Sachs & Co. Gene T. Sykes Managing Director of Goldman, Sachs & Co. Henry Cornell Managing Director of Goldman, Sachs & Co. Robert V. Delaney Managing Director of Goldman, Sachs & Co. Richard S. Sharp Managing Director of Goldman Sachs International Sanjeev K. Mehra Managing Director of Goldman, Sachs & Co. Muneer A. Satter Managing Director of Goldman, Sachs & Co. Peter G. Sachs Senior Director of The Goldman Sachs Group, Inc. Antoine L. Schwartz Managing Director of Goldman Sachs International SCHEDULE II-B ---------------- The name, position and present principal occupation of each executive officer and director of Goldman, Sachs & Co. Finanz GmbH which is the sole managing general partner of Goldman, Sachs & Co. oHG are set forth below. The business address for each of the executive officers and directors listed below is MesseTurm, 60308 Frankfurt am Main, Germany. The executive officers and directors listed below are citizens of Germany except Wayne L. Moore, who is a citizen of the United States. Name Present Principal Occupation - ------------------------------------------------------------------------------ Andreas Koernlein Managing Director of Goldman, Sachs & Co. oHG Wayne L. Moore Managing Director of Goldman, Sachs & Co. oHG Alexander C. Dibelius Managing Director of Goldman, Sachs & Co. oHG Peter Hollmann Managing Director of Goldman, Sachs & Co. oHG SCHEDULE II-C-i --------------- The name, position and present principal occupation of each executive officer of Stone Street 1998, L.L.C., the sole general partner of Stone Street Fund 1998, L.P. and the managing general partner of Bridge Street Fund 1998, L.P., are set forth below. The business address for all the executive officers listed below is 85 Broad Street, New York, New York 10004, except as follows: The business address of Richard S. Sharp, Antoine L. Schwartz, Hughes B. Lepic, Stephen S. Trevor, Atul Kapur, Robert G. Doumar, Jr. and Ulrika Werdelin is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The business address of Mary Nee is Cheung Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong. The business address of Joseph P. DiSabato is 555 California Street, 45th Floor, San Francisco, CA 94104. The business address of Gene T. Sykes is Fox Plaza, Suite 2600, 2121 Avenue of the Stars, Los Angeles, CA 90067. The business address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL. All executive officers listed below are United States citizens, except as follows: Richard S. Sharp is a citizen of the United Kingdom. Atul Kapur is a citizen of Singapore. Antoine L. Schwartz and Hughes B. Lepic are citizens of France. Adrian M. Jones is a citizen of Ireland. Ulrika Werdelin is a citizen of Sweden.
Name Position Present Principal Occupation - -------------------------- ---------------------- ------------------------------------------ Peter M. Sacerdote Chairman/President Advisory Director of Goldman, Sachs & Co. Peter G. Sachs Vice President Senior Director of The Goldman Sachs Group, Inc. Richard A. Friedman Vice President Managing Director of Goldman, Sachs & Co. Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs & Co. Terence M. O'Toole Vice President Managing Director of Goldman, Sachs & Co. Henry Cornell Vice President Managing Director of Goldman, Sachs & Co. Richard S. Sharp Vice President Managing Director of Goldman Sachs International Esta E. Stecher Vice President/ Managing Director of Goldman, Sachs & Co. Assistant Secretary Sanjeev K. Mehra Vice President/Treasurer Managing Director of Goldman, Sachs & Co. Muneer A. Satter Vice President Managing Director of Goldman, Sachs & Co. Antoine L. Schwartz Vice President Managing Director of Goldman Sachs International Steven M. Bunson Assistant Secretary Managing Director of Goldman, Sachs & Co. Elizabeth C. Fascitelli Vice President Managing Director of Goldman, Sachs & Co. David M. Weil Assistant Treasurer Managing Director of Goldman, Sachs & Co. David J. Greenwald Vice President/Assistant Managing Director of Goldman, Sachs & Co. Secretary Hughes B. Lepic Vice President Managing Director of Goldman Sachs International Russell E. Makowsky Assistant Secretary Managing Director of Goldman, Sachs & Co. Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs & Co. Randall A. Blumenthal Vice President Managing Director of Goldman, Sachs & Co. Douglas F. Londal Vice President Managing Director of Goldman, Sachs & Co. Stephen S. Trevor Vice President Managing Director of Goldman Sachs International Abraham Bleiberg Vice President Managing Director of Goldman, Sachs & Co. Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs & Co. Robert R. Gheewalla Vice President Managing Director of Goldman, Sachs & Co. Atul Kapur Vice President Managing Director of Goldman Sachs International Robert G. Doumar, Jr. Vice President Managing Director of Goldman Sachs International Ben I. Adler Vice President Managing Director of Goldman, Sachs & Co. Melina E. Higgins Vice President Managing Director of Goldman, Sachs & Co. Adrian M. Jones Vice President Managing Director of Goldman, Sachs & Co. Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs & Co. Mitchell S. Weiss Vice President Vice President of Goldman, Sachs & Co. Elizabeth C. Marcellino Vice President Managing Director of Goldman, Sachs & Co. John E. Bowman Vice President Vice President of Goldman, Sachs & Co. Raymond G. Matera Vice President Vice President of Goldman, Sachs & Co. Katherine B. Enquist Vice President/Secretary Managing Director of Goldman, Sachs & Co. James B. McHugh Assistant Secretary Vice President of Goldman, Sachs & Co. Beverly L. O'Toole Assistant Secretary Vice President of Goldman, Sachs & Co. Matthew E. Tropp Assistant Secretary Vice President of Goldman, Sachs & Co. Mary Nee Vice President Executive Director of Goldman Sachs (Asia) L.L.C. Richard J. Stingi Vice President Vice President of Goldman, Sachs & Co. Ulrika Werdelin Vice President Executive Director of Goldman Sachs International
SCHEDULE II-C-ii ---------------- The name and principal occupation of each member of the Stone Street Investment Committee of Goldman, Sachs & Co., which exercises the authority of Goldman, Sachs & Co. in managing Stone Street 1998, L.L.C., are set forth below. The business address for each member listed below is 85 Broad Street, New York, New York 10004. All members listed below are United States citizens. Name Present Principal Occupation - ------------------------------------------------------------------------------ Peter M. Sacerdote Advisory Director of Goldman, Sachs & Co. Peter G. Sachs Senior Director of The Goldman Sachs Group, Inc. Richard A. Friedman Managing Director of Goldman, Sachs & Co. Joseph H. Gleberman Managing Director of Goldman, Sachs & Co. Terence M. O'Toole Managing Director of Goldman, Sachs & Co. Sanjeev K. Mehra Managing Director of Goldman, Sachs & Co. SCHEDULE III On April 6, 2000, in connection with an industry-wide investigation by the Securities and Exchange Commission (the "SEC") relating to the pricing of government securities in advance refunding transactions, Goldman, Sachs & Co. ("Goldman Sachs") joined in a global settlement resolving the SEC investigation as well as a related qui tam lawsuit purportedly brought on behalf of the United States entitled United States ex rel. Lissack v. Goldman, Sachs & Co., et al., 95 Civ. 1363 (S.D.N.Y.) (BSJ). Pursuant to the settlement, without admitting or denying the findings, Goldman Sachs consented to the issuance of an SEC administrative order (SEA Rel. No. 42640) which, among other things, found that Goldman Sachs had violated Sections 17(a)(2) and (3) of the Securities Act of 1933 in connection with such pricing of government securities, required Goldman Sachs to cease and desist from violating such provisions, and ordered Goldman Sachs to make payments totaling approximately $5.1 million to the U.S. Treasury and $104,000 to two municipalities. Under the global settlement, the qui tam lawsuit was dismissed with prejudice, and the Internal Revenue Service agreed not to challenge the tax-free nature of the refundings by virtue of the pricing of such securities. In November 2002, the SEC, the National Association of Securities Dealers ("NASD") and the New York Stock Exchange, Inc. ("NYSE") alleged that five broker dealers, including Goldman Sachs, violated Section 17(a) of the Exchange Act and Rule 17a-4 thereunder, NYSE Rules 440 and 342 and NASD Rules 3010 and 3110 by allegedly failing to preserve electronic mail communications for three years and/or to preserve electronic mail communications for the first two years in an accessible place, and by allegedly having inadequate supervisory systems and procedures in relation to the retention of electronic mail communications. Without admitting or denying the allegations, the five broker dealers, including Goldman Sachs, consented to censure by the SEC, NASD and NYSE and to the imposition of a cease-and-desist order by the SEC and Goldman Sachs paid a total fine of $1,650,000 ($550,000 each to the SEC, NASD and NYSE). Goldman Sachs also undertook to review its procedures regarding the preservation of electronic mail communications for compliance with the federal securities laws and regulations and the rules of the NASD and NYSE, and to confirm within a specified period of time that it has established systems and procedures reasonably designed to achieve compliance with those laws, regulations and rules. On April 28, 2003, without admitting or denying liability, ten investment banking firms including Goldman Sachs, entered into global settlements with the Securities and Exchange Commission (the "SEC"), the New York Stock Exchange, Inc. (the "NYSE"), the National Association of Securities Dealers (the "NASD") and certain states to resolve the investigations relating to equity research analyst conflicts of interest. Goldman Sachs was charged with violating NYSE Rules 342, 401, 472 and 475, and NASD Conduct Rules 2110, 2210 and 3010. Goldman Sachs also agreed to a censure by the NYSE and the NASD and to pay a total of $110,000,000 and to adopt a set of industry-wide reforms of its research and investment banking businesses and to adopt certain restrictions on the allocations of "hot" IPO shares. The terms of the global settlement were entered in an order by a federal court in the Southern District of New York on October 31, 2003 (Civil Action Number 03CV2944). EX-99.14 3 ex99-14.txt EXECUTION COPY CARMIKE CINEMAS, INC. COMMON STOCK, PAR VALUE $0.03 PER SHARE ------------------------------------- UNDERWRITING AGREEMENT ---------------------- January 29, 2004 Goldman, Sachs & Co., As representative of the several Underwriters named in Schedule I hereto, c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004. UBS Securities LLC, As Independent Underwriter, 299 Park Avenue, New York, New York 10171. Ladies and Gentlemen: Carmike Cinemas Inc., a Delaware corporation (the "Company"), proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of 3,000,000 shares of Common Stock, par value $0.03 ("Stock") of the Company and the stockholders of the Company named in Schedule II hereto (the "Selling Stockholders") propose, severally and not jointly, subject to the terms and conditions stated herein, to sell to the Underwriters an aggregate of 1,850,000 shares and, at the election of the Underwriters, up to 675,000 additional shares of Stock. The aggregate of 4,850,000 shares to be sold by the Company and the Selling Stockholders is herein called the "Firm Shares" and the aggregate of 675,000 additional shares to be sold by the Selling Stockholders is herein called the "Optional Shares". The 3,000,000 Firm Shares to be sold by the Company are herein called the "Company Shares." The aggregate of 1,850,000 Firm Shares to be sold by the Selling Stockholders and the Optional Shares are herein collectively called the "Selling Stockholder Shares." The Firm Shares and the Optional Shares that the Underwriters elect to purchase pursuant to Section 2 hereof are herein collectively called the "Shares." The Company and the Underwriters, in accordance with the requirements of Rule 2720 ("Rule 2720") of the National Association of Securities Dealers, Inc. (the "NASD") and subject to the terms and conditions stated herein, also hereby confirm the engagement of the services of UBS Securities LLC (in such capacity, and not otherwise, the "Independent Underwriter") as a "qualified independent underwriter" within the meaning of Rule 2720(b)(15) of the NASD in connection with the offering and sale of the Shares. 1. (a) The Company represents and warrants to, and agrees with, each of the Underwriters and the Independent Underwriter that: (i) A registration statement on Form S-1 (File No. 333-90028) ( the "Initial Registration Statement") in respect of the Shares has been filed with the Securities and Exchange Commission (the "Commission"); the Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto, to you for each of the other Underwriters, have been declared effective by the Commission in such form; other than a registration statement, if any, increasing the size of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act"), which became effective upon filing, no other document with respect to the Initial Registration Statement has heretofore been filed with the Commission; and no stop order suspending the effectiveness of the Initial Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose has been initiated or, to the Company's knowledge, threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Act is hereinafter called a "Preliminary Prospectus"; the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if any, including all exhibits thereto and including the information contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial Registration Statement at the time it was declared effective, each as amended at the time such part of the Initial Registration Statement became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the "Registration Statement"; and such final prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is hereinafter called the "Prospectus"); (ii) No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did 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, in the light of the circumstances under which they were made, 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 an Underwriter through Goldman, Sachs & Co. or by the Independent Underwriter expressly for use therein or by a Selling Stockholder expressly for use in the preparation of the answers therein to Item 7 of Form S-1; (iii) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to the Registration Statement and any amendment thereto and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, 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; 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 an Underwriter through Goldman, Sachs & Co. or by the Independent Underwriter expressly for use therein or by a Selling Stockholder expressly for use in the preparation of the answers therein to Item 7 of Form S-1; (iv) (A) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, that, individually or in the aggregate, would 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 (a "Material Adverse Effect"), otherwise than as set forth or contemplated in the Prospectus; and (B) since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the capital stock (other than issuances of capital stock in the ordinary course of business pursuant to the Company's employee benefit plans) or long-term debt (other than a decrease not in excess of $23,000,000) of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; (v) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries; (vi) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such failures to be so qualified or in good standing that would not, individually or in the aggregate, have a Material Adverse Effect; and each subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; (vii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description of the Stock contained in the Prospectus; and all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims; (viii) The unissued Shares to be issued and sold by the Company to the Underwriters hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued and fully paid and non-assessable and will conform to the description of the Stock contained in the Prospectus; (ix) The issue and sale of the Shares to be sold by the Company and the compliance by the Company with all of the provisions of this 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 of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (B) will not result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company 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 of its subsidiaries 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; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Company of the transactions contemplated by this Agreement, except the registration under the Act of the Shares and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters; (x) Neither the Company nor any of its subsidiaries is (A) in violation of its Certificate of Incorporation or By-laws or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except in the case of clause (B) as would not, individually or in the aggregate, have a Material Adverse Effect; (xi) The statements set forth in the Prospectus under the caption "Description of Capital Stock", insofar as they purport to constitute a summary of the terms of the Stock and under the captions "Description of Indebtedness," "Our Reorganization" and "Underwriting", insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate and complete in all material respects; (xii) Other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, to the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (xiii) The Company is not and, after giving effect to the offering and sale of the Shares, will not be an "investment company", as such term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"); (xiv) Neither the Company nor any of its affiliates does business with the government of Cuba or with any person or affiliate located in Cuba within the meaning of Section 517.075, Florida Statutes; (xv) Ernst & Young LLP who have certified certain financial statements of the Company and its subsidiaries, and PricewaterhouseCoopers LLP, each are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder; (xvi) The financial statements of the Company, together with the related schedules and notes, set forth in the Registration Statement, Preliminary Prospectus and Prospectus comply in all material respects with the requirements of the Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and fairly present the consolidated financial condition of the Company and its subsidiaries as of the dates indicated and the results of operations and changes in cash flows for the periods therein specified in conformity with generally accepted accounting principles consistently applied throughout such periods; and no other financial statements or financial statement schedules are required to be included in the Registration Statement or Prospectus; (xvii) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management's general or specific authorization, and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences; (xviii)Each of the Company and its subsidiaries has filed on a timely basis all required federal, state, local and foreign income and franchise tax returns, if any such returns were required to be filed, through the date hereof, and has paid all taxes (and any related assessments, fines or penalties) shown as due thereon; no tax deficiency has been asserted against the Company or any of its subsidiaries, nor does the Company or any of its subsidiaries know of any tax deficiency which is likely to be asserted against any such entity which, if determined adversely to any such entity, could have a Material Adverse Effect; and such charges, accruals and reserves, as may be required by generally accepted accounting principles, have been provided for in the financial statements of such entities in respect of all taxes for all periods as to which the tax liability of the relevant entity has not been finally determined, is subject to challenge or remains open to examination by applicable taxing authorities; (xix) Except as otherwise set forth the Prospectus, the Company (i) is in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) has received all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business and (iii) is in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, individually or in the aggregate, have a Material Adverse Effect; (xx) Except as described in the Prospectus under "Certain Relationships and Related Party Transactions", there are no transactions required to be disclosed in the Registration Statement and Prospectus pursuant to Item 404 of Regulation S-K under the Act; and (xxi) Each of the Company and its subsidiaries is in material compliance with all applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours and has not received notice of any unfair labor practice complaint pending before the National Labor Relations Board; there is not any labor strike, significant slowdown or stoppage actually pending or, to the Company's knowledge, threatened against the Company or its subsidiaries and neither the Company nor any of its subsidiaries has received notice that any representation petition respecting its employees has been filed with the National Labor Relations Board; and except as disclosed in the Prospectus, neither the Company nor any of its subsidiaries is party to a collective bargaining agreement. (b) Each of the Selling Stockholders severally, and not jointly, represents and warrants to, and agrees with, each of the Underwriters and the Company that: (i) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Stockholder of this Agreement and the Power of Attorney and the Custody Agreement hereinafter referred to, and for the sale and delivery of the Shares to be sold by such Selling Stockholder hereunder, have been obtained; and such Selling Stockholder has full right, power and authority to enter into this Agreement, the Power-of-Attorney and the Custody Agreement and to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder; (ii) The sale of the Shares to be sold by such Selling Stockholder hereunder and the compliance by such Selling Stockholder with all of the provisions of this Agreement, the Power of Attorney and the Custody Agreement and the consummation of the transactions herein and therein 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 such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (B) will not result in any violation of the provisions of the Certificate of Incorporation or By-laws of such Selling Stockholder if such Selling Stockholder is a corporation, the Partnership Agreement of such Selling Stockholder if such Selling Stockholder is a partnership, or other applicable governing document if such Selling Stockholder is a trust or other entity 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 such Selling Stockholder or the property of such Selling Stockholder, except in the case of clause (A) as would not, individually or in the aggregate, have an adverse effect on the ability of such Selling Stockholder to consummate the transactions contemplated by this Agreement, the Power of Attorney or the Custody Agreement; (iii) Such Selling Stockholder has, and immediately prior to each Time of Delivery (as defined in Section 5 hereof) such Selling Stockholder will have, good and valid title to the Shares to be sold by such Selling Stockholder hereunder, free and clear of all adverse claims within the meaning of the Uniform Commercial Code; and, upon delivery of such Shares and payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all adverse claims within the meaning of the Uniform Commercial Code, will pass to the several Underwriters; (iv) Such Selling Stockholder as executed and delivered to you a lock-up agreement in the form attached hereto as Annex I; (v) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; (vi) The Preliminary Prospectus and the Registration Statement did, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus, when they become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided that this representation and warranty is limited only to any statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder (in its capacity as a Selling Stockholder) expressly for use therein; (vii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the First Time of Delivery (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof); (viii) Certificates in negotiable form representing all of the Shares to be sold by such Selling Stockholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "Custody Agreement"), duly executed and delivered by such Selling Stockholder to Mellon Investor Services LLC, as custodian (the "Custodian"), and such Selling Stockholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to you (the "Power of Attorney"), appointing the persons indicated in Schedule II hereto, and each of them, as such Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this Agreement on behalf of such Selling Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling Stockholders as provided in Section 2 hereof, to authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with the transactions contemplated by this Agreement and the Custody Agreement; and (ix) The Shares represented by the certificates held in custody for such Selling Stockholder under the Custody Agreement are subject to the interests of the Underwriters hereunder; the arrangements made by such Selling Stockholder for such custody, and the appointment by such Selling Stockholder of the Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable; the obligations of the Selling Stockholders hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Stockholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if any individual Selling Stockholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Stockholders in accordance with the terms and conditions of this Agreement and of the Custody Agreements; and actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event. 2. Subject to the terms and conditions herein set forth, (a) the Company and each of the Selling Stockholders agree, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and each of the Selling Stockholders, at a purchase price per share of $30.08, the number of Firm Shares (to be adjusted by you so as to eliminate fractional shares) determined by multiplying the aggregate number of Shares to be sold by the Company and each of the Selling Stockholders as set forth opposite their respective names in Schedule II hereto by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter, as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters from the Company and all of the Selling Stockholders hereunder and (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Optional Shares as provided below, each of the Selling Stockholders agrees, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from each of the Selling Stockholders, at the purchase price per share set forth in clause (a) of this Section 2, that portion of the number of Optional Shares as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares) determined by multiplying such number of Optional Shares by a fraction the numerator of which is the maximum number of Optional Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Optional Shares that all of the Underwriters are entitled to purchase hereunder. The Selling Stockholders, as and to the extent indicated in Schedule II hereto, hereby grant, severally and not jointly, to the Underwriters the right to purchase at their election up to 675,000 Optional Shares, at the purchase price per share set forth in the paragraph above, for the sole purpose of covering sales of shares in excess of the number of Firm Shares, provided that the purchase price per Optional Share shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the Firm Shares but not payable on the Optional Shares. Any such election to purchase Optional Shares shall be made in proportion to the maximum number of Optional Shares to be sold by each Selling Stockholder as set forth in Schedule II hereto. Any such election to purchase Optional Shares may be exercised only by written notice from you to the Attorneys-in-Fact given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 5 hereof) or, unless you and the Attorneys-in-Fact otherwise agree in writing, earlier than two or later than ten business days after the date of such notice. 3. Upon the authorization by you of the release of the Firm Shares, the several Underwriters propose to offer the Firm Shares for sale upon the terms and conditions set forth in the Prospectus. 4. (a) The Company hereby confirms its engagement of the services of the Independent Underwriter as, and the Independent Underwriter hereby confirms its agreement with the Company to render services as, a "qualified independent underwriter" within the meaning of Rule 2720(b)(15) of the NASD with respect to the offering and sale of the Shares. (b) The Independent Underwriter hereby represents and warrants to, and agrees with, the Company, the Selling Stockholders and the Underwriters that with respect to the offering and sale of the Shares as described in the Prospectus: (i) The Independent Underwriter constitutes a "qualified independent underwriter" within the meaning of Rule 2720(b)(15); (ii) The Independent Underwriter has participated in the preparation of the Registration Statement and the Prospectus and has exercised the usual standards of "due diligence" in respect thereto; (iii) The Independent Underwriter has undertaken the legal responsibilities and liabilities of an underwriter under the Act specifically including those inherent in Section 11 thereof; (iv) Subject to the provisions of Section 8 hereof, the Independent Underwriter will furnish to the Underwriters at the Time of Delivery a letter, dated the Time of Delivery, in form and substance as attached hereto as Annex IV to the effect that the Independent Underwriter recommends that as of the date of execution of this Agreement, the price for each Share offered to the public be no higher than $32.00 (which should in no event be considered or relied upon as an indication of the actual per Share value). (c) The Company, the Underwriters and the Independent Underwriter agree to comply in all material respects with all of the requirements of Rule 2720 applicable to them in connection with the offering and sale of the Shares. The Company agrees to cooperate with the Underwriters and the Independent Underwriter to enable the Underwriters to comply with Rule 2720 and the Independent Underwriter to perform the services contemplated by this Agreement. 5. (a) The Shares to be purchased by each Underwriter hereunder, in definitive form, and in such authorized denominations and registered in such names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior notice to the Company and the Selling Stockholders shall be delivered by or on behalf of the Company and the Selling Stockholders to Goldman, Sachs & Co., through the facilities of The Depository Trust Company ("DTC"), for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account(s) specified by each of the Company and the Custodian to Goldman, Sachs & Co. at least forty-eight hours in advance. The Company will cause the certificates representing the Shares to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of DTC or its designated custodian (the "Designated Office"). The time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York time, on February 4, 2004, or such other time and date as Goldman, Sachs & Co., the Company and the Selling Stockholders may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date specified by Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co. of the Underwriters' election to purchase such Optional Shares, or such other time and date as Goldman, Sachs & Co., the Company and the Selling Stockholders may agree upon in writing. Such time and date for delivery of the Firm Shares is herein called the "First Time of Delivery", such time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein called the "Second Time of Delivery", and each such time and date for delivery is herein called a "Time of Delivery". (b) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof, including the cross receipt for the Shares and any additional documents requested by the Underwriters pursuant to Section 8(l) hereof, will be delivered at the offices of King & Spalding LLP, 191 Peachtree Street, Atlanta, Georgia 30303 (the "Closing Location"), and the Shares will be delivered at the Designated Office, all at such Time of Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New York City time, on the New York Business Day next preceding such Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 5, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close. 6. The Company agrees with each of the Underwriters and with the Independent Underwriter: (a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or any supplement to the Registration Statement or Prospectus which shall be disapproved by you promptly after reasonable notice thereof; to advise you and the Independent Underwriter, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you and the Independent Underwriter with copies thereof; to advise you and the Independent Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order; (b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; (c) Prior to 10:00 A.M., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters and the Independent Underwriter with written and electronic copies of the Prospectus in New York City in such quantities as you and the Independent Underwriter may reasonably request, and, if the delivery of a prospectus is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Act, to notify you and upon your request to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required to deliver a prospectus in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act; (d) To make generally available to its securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158); (e) During the period beginning from the date hereof and continuing to and including the date 165 days after the date of the Prospectus, not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities (other than pursuant to employee stock option plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), without your prior written consent; (f) To furnish to its stockholders within the time periods specified in the Commission's rules and regulations after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, within the time periods specified in the Commission's rules and regulations after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), to make available to its stockholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; (g) During a period of three years from the effective date of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) furnished to stockholders and not publicly available via EDGAR, and to deliver to you, as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and not publicly available via EDGAR (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its stockholders generally or to the Commission); (h) To use the net proceeds received by it from the sale of the Shares pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds"; (i) To use its best efforts to list for quotation the Shares on the National Association of Securities Dealers Automated Quotations National Market System ("NASDAQ"); (j) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and (k) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company's trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares (the "License"); provided, however, that the License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred. 7. The Company and each of the Selling Stockholders covenant and agree with one another and with the several Underwriters and the Independent Underwriter that (a) the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Shares under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters, the Independent Underwriter and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (iii) all expenses in connection with the qualification of the Shares for offering and sale under state securities laws as provided in Section 6(b) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv) all fees and expenses in connection with listing the Shares on the NASDAQ; (v) the filing fees incident to, and the fees and disbursements of counsel for the Underwriters in connection with, securing any required review by the NASD of the terms of the sale of the Shares; (vi) the cost of preparing stock certificates; (vii) the cost and charges of any transfer agent or registrar; (viii) any fees and expenses of the Custodian; (ix) any fees and expenses of the Independent Underwriter, up to a maximum of $10,000; and (x) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section; and (b) such Selling Stockholder will pay or cause to be paid all costs and expenses incident to the performance of such Selling Stockholder's obligations hereunder which are not otherwise specifically provided for in this Section, including (i) any fees and expenses of counsel for such Selling Stockholder incurred in connection with reviewing and otherwise acting in connection with the Registration Statement (except that the Company shall pay such fees and expenses incurred by such Selling Stockholder, up to a maximum of $10,000; provided that, for purposes of this exception to clause (b)(i), GS Capital Partners III, L.P., GS Capital Partners III Offshore, L.P., Goldman, Sachs & Co. Verwaltungs GmbH, Bridge Street Fund 1998, L.P. and Stone Street Fund 1998, L.P, collectively, shall be treated as a single Selling Stockholder and TJT(B)(Bermuda) Investment Company Ltd. and David W. Zalaznick and Barbara Zalaznick, JT TEN, collectively, shall be treated as a single Selling Stockholder), (ii) any fees and expenses of the Attorneys-in-Fact for such Selling Stockholder; and (iii) all expenses and taxes incident to the sale and delivery of the Shares to be sold by such Selling Stockholder to the Underwriters hereunder. In connection with clause (b) of the preceding sentence, Goldman, Sachs & Co. agrees to pay New York State stock transfer tax, and the Selling Stockholder agrees to reimburse Goldman, Sachs & Co. for associated carrying costs if such tax payment is not rebated on the day of payment and for any portion of such tax payment not rebated. It is understood, however, that, except as provided in this Section, and Sections 10 and 14 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make. 8. The respective obligations of the Underwriters and the Independent Underwriter hereunder as to the Shares to be delivered at each Time of Delivery shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their respective obligations hereunder theretofore to be performed, the condition that the Independent Underwriter shall have furnished to the Underwriters the letter referred to in clause (iv) of Section 4(b) hereof and the following additional conditions: (a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 6(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction; (b) Sullivan & Cromwell LLP, counsel for the Underwriters, shall have furnished to you such written opinion or letter, dated such Time of Delivery, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; (c) King & Spalding LLP, counsel for the Company, shall have furnished to you their written opinion (a draft of such opinion is attached as Annex II(a) hereto), dated such Time of Delivery, in form and substance satisfactory to you, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus; (ii) The Company has an authorized capitalization as set forth in the Prospectus, all of the issued shares of capital stock of the Company (including the Selling Stockholder Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; all of the Company Shares being delivered at such Time of Delivery have been duly and validly authorized and, upon payment for the Company Shares in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable; and the Shares conform to the description of the Stock contained in the Prospectus; (iii) The Company is duly qualified as a foreign corporation for the transaction of business and is in good standing in each jurisdiction listed on Exhibit A to such counsel's opinion; (iv) Each subsidiary of the Company is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and are owned directly or indirectly by the Company, free and clear of all adverse claims within the meaning of the Uniform Commercial Code (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates); (v) Other than as set forth in the Prospectus, such counsel is not aware of any legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (vi) This Agreement has been duly authorized, executed and delivered by the Company; (vii) The issue and sale of the Shares being delivered at such Time of Delivery to be sold by the Company and the compliance by the Company with all of the provisions of this 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 agreement filed as an exhibit to the Registration Statement, (B) will not result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (C) will not result in any violation of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except in the case of clause (C) as would not, individually or in the aggregate, have a Material Adverse Effect; (viii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Company Shares or the consummation by the Company of the transactions contemplated by this Agreement, except the registration under the Act of the Company Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws or any applicable law, rule or regulation of any foreign jurisdiction in connection with the purchase and distribution of the Company Shares by the Underwriters; (ix) The statements set forth in the Prospectus under the caption "Description of Capital Stock", insofar as they purport to constitute a summary of the terms of the Stock, and under the captions "Description of Indebtedness," "Our Reorganization" and "Underwriting", insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate and complete in all material respects; (x) The Company is not an "investment company", as such term is defined in the Investment Company Act; and (xi) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder. In addition, such counsel shall state that (i) though such counsel is not passing on and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, except for those referred to in the opinion in subsection (ix) of this Section 8(c), such counsel has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to such Time of Delivery (other than the financial statements and notes thereto, the financial statement schedules and the other financial data included therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery (other than the financial statements and notes thereto, the financial statement schedules and the other financial data included therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that, as of such Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery (other than the financial statements and notes thereto, the financial statement schedules and the other financial data included therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and such counsel does not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required; (d) The respective counsel for each of the Selling Stockholders, as indicated in Schedule II hereto, each shall have furnished to you their written opinion with respect to each of the Selling Stockholders for whom they are acting as counsel (a draft of each such opinion is attached as Annex II(b) hereto), dated the First Time of Delivery, in form and substance satisfactory to you. (e) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, each of Ernst & Young LLP and PricewaterhouseCoopers LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you (the executed copies of the letters delivered prior to the execution of this Agreement are attached as Annex III hereto and drafts of the forms of letters to be delivered on the effective date of any post-effective amendment to the Registration Statement and as of each Time of Delivery are attached as Annex III(a) hereto); (f)(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus, except as disclosed or contemplated in the Prospectus, there shall not have been any change in the capital stock (other than issuances of capital stock in the ordinary course of business pursuant to the Company's employee benefit plans) or long-term debt (other than a decrease not in excess of $23,000,000) of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; (g) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company's debt securities by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities; (h) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on NASDAQ; (ii) a suspension or material limitation in trading in the Company's securities on NASDAQ; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; (i) The Shares at such Time of Delivery shall have been duly listed for quotation on NASDAQ; (j) The Company has obtained and delivered to the Underwriters executed copies of an agreement from each director and executive officer and each Selling Stockholder substantially in the form attached hereto as Annex I; (k) The Company shall have complied with the provisions of Section 6(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and (l) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and as to such other matters as you may reasonably request, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) and (f) of this Section. 9. [reserved] 10. (a) The Company and Michael W. Patrick, jointly and severally, will indemnify and hold harmless each Underwriter and the Independent Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter or the Independent Underwriter, as the case may be, may become subject, under the 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 Preliminary Prospectus, the Registration Statement or the Prospectus, 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 each Underwriter or the Independent Underwriter, as the case may be, for any legal or other expenses reasonably incurred by such Underwriter or the Independent Underwriter, as the case may be, in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company and Michael W. Patrick shall not be liable 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 any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter through Goldman, Sachs & Co. or the Independent Underwriter expressly for use therein; provided further that the liability of Michael W. Patrick pursuant to this subsection (a) shall not exceed the product of the number of Shares sold by Michael W. Patrick and the initial public offering price of the Shares as set forth in the Prospectus. Each of the Company and Michael W. Patrick agrees that the Independent Underwriter shall have no additional liability (legal, contractual or otherwise) to the Company or Michael W. Patrick, respectively, or otherwise as a result of its serving as Independent Underwriter (except for liability arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by the Independent Underwriter expressly for use therein). (b) The Company will indemnify and hold harmless UBS Securities LLC, in its capacity as the Independent Underwriter, against any losses, claims, damages or liabilities, joint or several, to which the Independent Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any act or failure to act or any alleged act or failure to act by the Independent Underwriter in connection with any transaction contemplated by this Agreement or undertaken in preparing for the purchase, sale and delivery of the Shares, except to the extent that any such loss, claim, damage or liability results from the gross negligence or willful misconduct of the Independent Underwriter in performing the services in its capacity as the Independent Underwriter, and will reimburse the Independent Underwriter for any legal or other expenses reasonably incurred by the Independent Underwriter in connection with investigating or defending any such loss, claim, damage or liability, or any action in respect thereof, as such expenses are incurred. (c) Each of GS Capital Partners III, L.P., GS Capital Partners III Offshore, L.P., Goldman, Sachs & Co. Verwaltungs GmbH, Bridge Street Fund 1998, L.P., Stone Street Fund 1998, L.P., TJT (B) (Bermuda) Investment Company Ltd., David W. Zalaznick and Barbara Zalaznick, JT TEN, Leucadia National Corporation and Carl L. Patrick, Jr., severally and not jointly, will indemnify and hold harmless each Underwriter and the Independent Underwriter, as the case may be, against any losses, claims, damages or liabilities, joint or several, to which such Underwriter or the Independent Underwriter, as the case may be, may become subject, under the 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 Preliminary Prospectus, the Registration Statement or the Prospectus, 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 any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder (in its capacity as a Selling Stockholder) expressly for use therein; and will reimburse each Underwriter or the Independent Underwriter, as the case may be, for any legal or other expenses reasonably incurred by such Underwriter or the Independent Underwriter, as the case may be, in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that such Selling Stockholder shall not be liable 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 any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter through Goldman, Sachs & Co. or the Independent Underwriter expressly for use therein; provided further, that the liability of any Selling Stockholder pursuant to this Section 10(c) shall not exceed the product of the number of Shares sold by such Selling Stockholder, including any Optional Shares, and the initial public offering price of the Shares as set forth in the Prospectus. Each Selling Stockholder set forth in the first sentence of this Section 10(c) agrees that the Independent Underwriter shall have no additional liability (legal, contractual or otherwise) to such Selling Stockholder or otherwise as a result of its serving as Independent Underwriter (except for liability arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by the Independent Underwriter expressly for use therein). (d) Each Underwriter will indemnify and hold harmless the Company, the Independent Underwriter and each Selling Stockholder against any losses, claims, damages or liabilities to which the Company, the Independent Underwriter or such Selling Stockholder, as the case may be, may become subject, under the 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 Preliminary Prospectus, the Registration Statement or the Prospectus, 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 any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Underwriter through Goldman, Sachs & Co. expressly for use therein; and will reimburse the Company, the Independent Underwriter or each Selling Stockholder, as the case may be, for any legal or other expenses reasonably incurred by the Company, the Independent Underwriter or such Selling Stockholder, as the case may be, in connection with investigating or defending any such action or claim as such expenses are incurred. Each Underwriter agrees that the Independent Underwriter shall have no additional liability (legal, contractual or otherwise) to such Underwriter or otherwise as a result of its serving as Independent Underwriter (except for liability arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by the Independent Underwriter expressly for use therein). (e) The Independent Underwriter will indemnify and hold harmless the Company, each Underwriter and each Selling Stockholder against any losses, claims, damages or liabilities to which the Company, such Underwriter or such Selling Stockholder, as the case may be, may become subject, under the 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 Preliminary Prospectus, the Registration Statement or the Prospectus, 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 any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by the Independent Underwriter expressly for use therein, and will reimburse the Company, each Underwriter or each Selling Stockholder, as the case may be, for any legal or other expenses reasonably incurred by the Company, such Underwriter or such Selling Stockholder, as the case may be, in connection with investigating or defending any such action or claim as such expenses are incurred. (f) Promptly after receipt by an indemnified party under subsections (a), (b), (c), (d) or (e) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; 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 such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the 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 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, the indemnifying party shall not be liable to such indemnified party under such subsection 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. (g) If the indemnification provided for in this Section 10 is unavailable to or insufficient to hold harmless an indemnified party under subsections (a), (b), (c), (d) or (e) above 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 benefits received by each party to this agreement from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (f) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of each party to this agreement 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 benefits received by the Company, the Selling Stockholders, the Underwriters and the Independent Underwriter shall be deemed to be in the same proportion as the total net proceeds from the offering of the Shares purchased under this Agreement (before deducting expenses) received by the Company and the Selling Stockholders and the total underwriting discounts and commissions received by the Underwriters, (in each case as set forth in the table on the cover page of the Prospectus), and the total underwriting discounts and commissions received by UBS Securities LLC, respectively, bear to the total proceeds from the sale of the Shares (before deducting expenses) in the offering. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Selling Stockholders on the one hand or either the Underwriters or the Independent Underwriter on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Selling Stockholders, the Underwriters and the Independent Underwriter agree that it would not be just and equitable if contributions pursuant to this subsection (g) were determined by pro rata allocation (even if the Underwriters and the Independent Underwriter 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 above in this subsection (g). 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 in this subsection (g) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (g), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public, and the Independent Underwriter shall not be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by UBS Securities LLC and distributed to the public were offered to the public, exceeds the amount of any damages which such Underwriter or the Independent Underwriter, as the case may be, 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 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' and the Independent Underwriter's obligations in this subsection (g) to contribute are several in proportion to their (or in the case of the Independent Underwriter, UBS Securities LLC's), respective underwriting obligations and not joint. (h) The obligations of the Company and the Selling Stockholders under this Section 10 shall be in addition to any liability which the Company and the respective Selling Stockholders may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter or the Independent Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section 10 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company, any Selling Stockholder or the Independent Underwriter within the meaning of the Act; and the obligations of the Independent Underwriter under this Section 10 shall be in addition to any liability which the Independent Underwriter may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company, any Selling Stockholder or any Underwriter within the meaning of the Act. 11. (a) If any Underwriter shall default in its obligation to purchase the Shares which it has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or another party or other parties to purchase such Shares on the terms contained herein. If within thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such Shares, then the Company and the Selling Stockholders shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to you to purchase such Shares on such terms. In the event that, within the respective prescribed periods, you notify the Company and the Selling Stockholders that you have so arranged for the purchase of such Shares, or the Company and the Selling Stockholders notify you that they have so arranged for the purchase of such Shares, you or the Company and the Selling Stockholders shall have the right to postpone a Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Shares. (b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Company and the Selling Stockholders as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the aggregate number of all the Shares to be purchased at such Time of Delivery, then the Company and the Selling Stockholders shall have the right to require each non-defaulting Underwriter to purchase the number of Shares which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Company and the Selling Stockholders as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate number of all of the Shares to be purchased at such Time of Delivery, or if the Company and the Selling Stockholders shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect to the Second Time of Delivery, the obligations of the Underwriters to purchase and of the Selling Stockholders to sell the Optional Shares) shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company or the Selling Stockholders, except for the expenses to be borne by the Company and the Selling Stockholders and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 10 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 12. The respective indemnities, agreements, representations, warranties and other statements of the Company, the Selling Stockholders, the several Underwriters and the Independent Underwriter, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter, the Independent Underwriter or any controlling person of any Underwriter, the Independent Underwriter or the Company, or any of the Selling Stockholders, or any officer or director or controlling person of the Company, or any controlling person of any Selling Stockholder, and shall survive delivery of and payment for the Shares. Anything herein to the contrary notwithstanding, the indemnity agreement of the Company in subsection (a) of Section 10 hereof, the representations and warranties in subsections (ii) and (iii) of Section 1(a) hereof and any representation or warranty as to the accuracy of the Registration Statement or the Prospectus contained in any certificate furnished by the Company pursuant to Section 8 hereof, insofar as they may constitute a basis for indemnification for liabilities (other than payment by the Company of expenses incurred or paid in the successful defense of any action, suit or proceeding) arising under the Act, shall not extend to the extent of any interest therein of a controlling person or partner of an Underwriter who is a director, officer or controlling person of the Company when the Registration Statement has become effective, except in each case to the extent that an interest of such character shall have been determined by a court of appropriate jurisdiction as not against public policy as expressed in the Act. Unless in the opinion of counsel for the Company the matter has been settled by controlling precedent, the Company will, if a claim for such indemnification is asserted, submit to a court of appropriate jurisdiction the question of whether such interest is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 13. If this Agreement shall be terminated pursuant to Section 11 hereof, neither the Company nor the Selling Stockholders shall then be under any liability to any Underwriter or the Independent Underwriter except as provided in Sections 7 and 10 hereof; but, if for any other reason any Shares are not delivered by or on behalf of the Company and the Selling Stockholders as provided herein, the Company will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares not so delivered, but the Company and the Selling Stockholders shall then be under no further liability to any Underwriter or the Independent Underwriter in respect of the Shares not so delivered except as provided in Sections 7 and 10 hereof. 14. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you; and in all dealings with any Selling Stockholder hereunder, you and the Company shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of such Selling Stockholder made or given by any or all of the Attorneys-in-Fact for such Selling Stockholder. All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the representative at 85 Broad Street, New York, New York 10004, Attention: Registration Department; if to the Independent Underwriter shall be delivered or sent by mail, telex or facsimile transmission to UBS Securities LLC, 299 Park Avenue, New York, New York 10171, Attention: Syndicate Department; if to any Selling Stockholder shall be delivered or sent by mail, telex or facsimile transmission to counsel for such Selling Stockholder at its address set forth in Schedule II hereto; and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 10(f) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters' Questionnaire or telex constituting such Questionnaire, which address will be supplied to the Company or the Selling Stockholders by you on request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof. 15. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Independent Underwriter, the Company and the Selling Stockholders and, to the extent provided in Sections 10 and 12 hereof, the officers and directors of the Company and each person who controls the Company, any Selling Stockholder, the Independent Underwriter or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. 16. Time shall be of the essence of this Agreement. As used herein, the term "business day" shall mean any day when the Commission's office in Washington, D.C. is open for business. 17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 18. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. 19. The Company and the Selling Stockholders are authorized, subject to applicable law, to disclose any and all aspects of this potential transaction that are necessary to support any U.S. federal income tax benefits expected to be claimed with respect to such transaction, and all materials of any kind (including tax opinions and other tax analyses) related to those benefits, without the Underwriters imposing any limitation of any kind. If the foregoing is in accordance with your understanding, please sign and return to us ten counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters, and the Independent Underwriter, this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters, the Independent Underwriter, the Company and each of the Selling Stockholders. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company and the Selling Stockholders for examination, upon request, but without warranty on your part as to the authority of the signers thereof. Any person executing and delivering this Agreement as Attorney-in-Fact for a Selling Stockholder represents by so doing that he has been duly appointed as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and binding Power-of-Attorney which authorizes such Attorney-in-Fact to take such action. Very truly yours, Carmike Cinemas, Inc. By: /s/ Michael W. Patrick --------------------------- Name: Michael W. Patrick Title: President and Chief Executive Officer Michael W. Patrick Carl L. Patrick, Jr. By: /s/ Michael W. Patrick --------------------------- Name: Michael W. Patrick Title: Attorney-in-Fact GS Capital Partners III, L.P. GS Capital Partners III Offshore, L.P. Goldman, Sachs & Co. Verwaltungs GmbH Bridge Street Fund 1998, L.P. Stone Street Fund 1998, L.P. By: /s/ Richard A. Friedman --------------------------- Name: Richard A. Friedman Title: Attorney-in-Fact TJT (B) (Bermuda) Investment Company Ltd. By: /s/ John W. Jordan II --------------------------- Name: John W. Jordan II Title: Attorney-in-Fact David W. Zalaznick and Barbara Zalaznick, JT TEN By: /s/ David W. Zalaznick /s/ Barbara Zalaznick --------------------------- Name: Title: Attorney-in-Fact Leucadia National Corporation By: /s/ Joseph A. Orlando --------------------------- Name: Joseph A. Orlando Title: Attorney-in-Fact Accepted as of the date hereof at New York, New York: Goldman, Sachs & Co. By: /s/ Goldman, Sachs & Co. ----------------------------------- (Goldman, Sachs & Co.) On behalf of each of the Underwriters UBS Securities LLC By: /s/ Navid Mahmoodzadeean ----------------------------------- Name: Navid Mahmoodzadeean Title: Managing Director By: /s/ Mel Tang ----------------------------------- Name: Mel Tang Title: Associate Director As Independent Underwriter SCHEDULE I
NUMBER OF OPTIONAL SHARES TO BE TOTAL NUMBER OF PURCHASED IF FIRM SHARES MAXIMUM OPTION UNDERWRITER TO BE PURCHASED EXERCISED ----------- --------------- -------------- Goldman, Sachs & Co. ................................... 1,455,000 202,500 Bear, Stearns & Co. Inc................................. 1,212,500 168,750 UBS Securities LLC ..................................... 1,212,500 168,750 Harris Nesbitt Corp..................................... 485,000 67,500 Jefferies & Company, Inc................................ 485,000 67,500 ---------- ----------- Total............................................ 4,850,000 675,000 ========== ===========
=============================================================================== SCHEDULE II
NUMBER OF OPTIONAL SHARES TO BE TOTAL NUMBER OF PURCHASED IF FIRM SHARES MAXIMUM OPTION UNDERWRITER TO BE PURCHASED EXERCISED ----------- --------------- -------------- The Company............................................ 3,000,000 0 The Selling Stockholder(s): GS Capital Partners III, L.P.(a).................... 765,200 261,200 GS Capital Partners III Offshore, L.P.(a) .......... 210,362 71,807 Goldman, Sachs & Co. Verwaltungs GmbH(a) .......... 35,326 12,058 Bridge Street Fund 1998, L.P.(a) ................... 26,040 8,889 Stone Street Fund 1998, L.P.(a)..................... 86,281 29,452 TJT (B) (Bermuda) Investment Company Ltd.(b) ....... 226,042 112,086 David W. Zalaznick and Barbara Zalaznick, JT TEN(b) 171,240 84,912 Leucadia National Corporation(c).................... 184,394 91,434 Michael W. Patrick(d)............................... 123,277 0 Carl L. Patrick, Jr.(d) ............................ 21,838 3,162 ---------- ----------- Total............................................ 4,850,000 675,000 ========== =========== - ------------ (a) This Selling Stockholder is represented by Fried, Frank, Harris, Shriver & Jacobson LLP, One New York Plaza, New York, New York 10004 (opinions to be delivered pursuant to Section 8(d) by associate general counsel of Goldman, Sachs & Co., Maples & Calder (with respect to GS Capital Partners III Offshore, L.P.) and Pollath + Partners (with respect to Goldman, Sachs & Co. Verwaltungs GmbH), and has appointed Richard A. Friedman, Elizabeth C. Fascitelli and Kenneth A. Pontarelli, and any of them, as the Attorneys-in-Fact for such Selling Stockholder. (b) This Selling Stockholder is represented by Mayer, Brown, Rowe & Maw LLP, 1675 Broadway, New York, New York 10019, and has appointed John W. Jordan, II and David W. Zalaznick, and each of them, as the Attorneys-in-Fact for such Selling Stockholder. (c) This Selling Stockholder is represented by Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153, and has appointed Ian M. Cumming and Joseph A. Orlando, and each of them, as the Attorneys-in-Fact for such Selling Stockholder. (d) This Selling Stockholder is represented by King & Spalding LLP, 191 Peachtree Street, Atlanta, Georgia 30303, and has appointed Michael W. Patrick and Carl L. Patrick, Jr., and each of them, as the Attorneys-in-Fact for such Selling Stockholder.
EX-99.15 4 ex99_15.txt CARMIKE CINEMAS, INC. LOCK-UP AGREEMENT January , 2004 Goldman, Sachs & Co. 85 Broad Street New York, NY 10004 Re: Carmike Cinemas, Inc. - Lock-Up Agreement ----------------------------------------- Ladies and Gentlemen: The undersigned understands that you, as representative (the "Representative"), propose to enter into an Underwriting Agreement on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the "Underwriters"), with Carmike Cinemas, Inc., a Delaware corporation (the "Company"), the Selling Stockholders named therein and UBS Securities LLC, as Independent Underwriter (as defined therein), providing for a public offering of the Common Stock of the Company (the "Shares") pursuant to a Registration Statement on Form S-1 (Registration No. 333-90028) filed with the Securities and Exchange Commission (the "SEC"). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning from the date of the final Prospectus covering the public offering of the Shares and continuing to and including the date 165 days after the date of such final Prospectus, the undersigned will not offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Common Stock of the Company, or any options or warrants to purchase any shares of Common Stock of the Company, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock of the Company, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the SEC (collectively the "Undersigned's Shares"). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Undersigned's Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned's Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Shares. Notwithstanding the foregoing, the undersigned may transfer the Undersigned's Shares (i) as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, or (iii) with the prior written consent of Goldman, Sachs & Co. on behalf of the Underwriters. For purposes of this Lock-Up Agreement, "immediate family" shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. In addition, notwithstanding the foregoing, if the undersigned is a corporation, the corporation may transfer the capital stock of the Company to any wholly-owned subsidiary of such corporation, and if the undersigned is a partnership, corporation or other entity, the partnership, corporation or other entity may transfer the capital stock of the Company to any affiliate of such partnership, corporation or other entity, respectively (including any affiliate that is a Selling Stockholder (as defined in the Underwriting Agreement)); provided, however, that in any such case, it shall be a condition to the transfer that the transferee execute an agreement stating that the transferee is receiving and holding such capital stock subject to the provisions of this Lock-Up Agreement and there shall be no further transfer of such capital stock except in accordance with this Lock-Up Agreement, and provided further that any such transfer shall not involve a disposition for value. The undersigned now has, and, except as contemplated by clause (i), (ii), or (iii) above, for the duration of this Lock-Up Agreement will have, good and valid title to the Undersigned's Shares, free and clear of all adverse claims within the meaning of the Uniform Commercial Code. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent and registrar against the transfer of the Undersigned's Shares except in compliance with the foregoing restrictions. Notwithstanding anything herein to the contrary, the foregoing shall not be deemed to restrict Goldman, Sachs & Co. and its affiliates from engaging in any brokerage, investment advisory, financial advisory, anti-raid advisory, merger advisory, financing, asset management, trading, market making, arbitrage, principal investing and other similar activities conducted in the ordinary course of their affiliates' business. The undersigned understands that the Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the offering. The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned's heirs, legal representatives, successors, and assigns. Very truly yours, ------------------------------- Exact Name of Shareholder ------------------------------- Authorized Signature ------------------------------- Title -----END PRIVACY-ENHANCED MESSAGE-----