0000950144-01-507489.txt : 20011009
0000950144-01-507489.hdr.sgml : 20011009
ACCESSION NUMBER: 0000950144-01-507489
CONFORMED SUBMISSION TYPE: 8-K
PUBLIC DOCUMENT COUNT: 2
CONFORMED PERIOD OF REPORT: 20010928
ITEM INFORMATION: Other events
ITEM INFORMATION: Financial statements and exhibits
FILED AS OF DATE: 20011003
FILER:
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: 8-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-11604
FILM NUMBER: 1751327
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
8-K
1
g71992e8-k.txt
CARMIKE CINEMAS, INC.
1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 28, 2001
--------------------------------
CARMIKE CINEMAS, INC.
--------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 1-11604 58-1469127
--------------------------------------------------------------------------------
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
1301 FIRST AVENUE, COLUMBUS, GEORGIA 31901
--------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (706) 576-3400
-----------------------------
N/A
--------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
2
ITEM 5. OTHER EVENTS
As previously reported, on August 8, 2000, Carmike Cinemas, Inc. and
its subsidiaries Eastwynn Theatres, Inc., Wooden Nickel Pub, Inc. and Military
Services, Inc. (collectively, the "Debtors") filed voluntary petitions for
relief under chapter 11 (the "Chapter 11 Cases") of title 11 of the United
States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for
the District of Delaware (the "Bankruptcy Court"). The Chapter 11 Cases are
being jointly administered for procedural purposes only. Since the commencement
of the Chapter 11 Cases, the Debtors have been operating their businesses as
debtors-in-possession pursuant to the Bankruptcy Code.
On September 28, 2001, the Debtors filed with the Bankruptcy Court: (i)
the Debtors' Joint Plan of Reorganization under Chapter 11 of the Bankruptcy
Code (the "Proposed Plan of Reorganization") and (ii) the Debtors' Disclosure
Statement Pursuant to Section 1125 of the Bankruptcy Code (the "Proposed
Disclosure Statement"). A copy of the Proposed Plan of Reorganization is
attached hereto as Exhibit 99 and is incorporated herein in its entirety by
reference. The Proposed Disclosure Statement is not being filed with or
incorporated into this Current Report, but a copy of the Proposed Disclosure
Statement can be obtained from the Bankruptcy Court. The Proposed Plan of
Reorganization and the Proposed Disclosure Statement are subject to further
revision and amendment.
Certain statements made in the Proposed Plan of Reorganization may
constitute "forward-looking" statements as defined in the Securities Act of
1933, as amended, and the Securities Exchange act of 1934, as amended. Such
statements include without limitation, statements regarding future liquidity and
cash needs, and are indicated by words or phrases such as "estimate,"
"continuing," and similar words or phrases. Important factors that could cause
actual results to differ materially from Carmike's expectations include, without
limitation, difficulties in Carmike's obtaining Bankruptcy Court approval of the
Proposed Disclosure Statement and any other needed approvals and confirmation
and consummation of the Proposed Plan of Reorganization, the ability of Carmike
to consummate asset dispositions and/or to obtain financing as necessary in
order to emerge from bankruptcy and the terms and conditions of any such
dispositions and financing, and the possible need for debtor-in-possession
financing if Carmike's emergence from bankruptcy is delayed, many of which are
beyond the control of Carmike.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
Exhibit 99 -- Debtors' Joint Plan of Reorganization under Chapter 11 of
the Bankruptcy Code
2
3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CARMIKE CINEMAS, INC.
By: /s/ F. Lee Champion, III
-----------------------------------------
F. Lee Champion, III
Senior Vice President and General Counsel
DATED: October 3, 2001
3
4
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
99 Debtors' Joint Plan of Reorganization under
Chapter 11 of the Bankruptcy Code
4
EX-99
3
g71992ex99.txt
DEBTORS' JOINT PLAN OF REORGANIZATION
1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------X
IN RE : CHAPTER 11 CASE NOS.
:
CARMIKE CINEMAS, INC., ET AL., : 00-3302 (SLR) THROUGH
: 00-3305 (SLR)
DEBTORS. :
: JOINTLY ADMINISTERED
------------------------------------X
DEBTORS' JOINT PLAN OF REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
WEIL, GOTSHAL & MANGES LLP
ATTORNEYS FOR THE DEBTORS
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
- AND -
RICHARDS, LAYTON & FINGER, P.A.
ATTORNEYS FOR THE DEBTORS
ONE RODNEY SQUARE
P.O. BOX 551
WILMINGTON, DELAWARE 19899
(302) 658-6541
DATED: WILMINGTON, DELAWARE
SEPTEMBER 28, 2001
2
TABLE OF CONTENTS
PAGE
Article I DEFINITIONS AND CONSTRUCTION OF TERMS....... 1
1.1 Administrative Expense Claim ................. 1
1.2 Agent ........................................ 1
1.3 Allowed ...................................... 1
1.4 Ballot ....................................... 1
1.5 Bank Claims .................................. 1
1.6 Bank Credit Agreements ....................... 1
1.7 Banks ........................................ 2
1.8 Bankruptcy Code .............................. 2
1.9 Bankruptcy Court ............................. 2
1.10 Bankruptcy Rules ............................. 2
1.11 Business Day ................................. 2
1.12 Carmike ...................................... 2
1.13 Cash ......................................... 2
1.14 Causes of Action ............................. 2
1.15 Chapter 11 Cases ............................. 2
1.16 Claim ........................................ 2
1.17 Class ........................................ 2
1.18 Collateral ................................... 2
1.19 Commencement Date ............................ 2
1.20 Committee .................................... 2
1.21 Common Stock ................................. 2
1.22 Confirmation Date ............................ 3
1.23 Confirmation Hearing ......................... 3
1.24 Confirmation Order ........................... 3
1.25 Convenience Claims ........................... 3
1.26 Converted Subordinated Notes ................. 3
1.27 Debtors ...................................... 3
1.28 Debtors in Possession ........................ 3
1.29 Disbursing Agent ............................. 3
3
TABLE OF CONTENTS
(CONTINUED)
PAGE
1.30 Disclosure Statement ............................... 3
1.31 Disputed ........................................... 3
1.32 Disputed Claim Amount .............................. 3
1.33 Effective Date ..................................... 3
1.34 Effective Date Net Cash ............................ 3
1.35 Equity Interest .................................... 4
1.36 Final Order ........................................ 4
1.37 General Unsecured Claim ............................ 4
1.38 Indenture Trustee .................................. 4
1.39 LIBOR .............................................. 4
1.40 Lien ............................................... 4
1.41 New Common Stock ................................... 4
1.42 New Bank Debt ...................................... 4
1.43 Other Priority Claim ............................... 4
1.44 Other Secured Claim ................................ 4
1.45 Plan ............................................... 5
1.46 Plan Supplement .................................... 5
1.47 Preferred Stock .................................... 5
1.48 Prime Rate ......................................... 5
1.49 Priority Tax Claim ................................. 5
1.50 Pro Rata Share ..................................... 5
1.51 Record Date ........................................ 5
1.52 Registration Rights Agreement ...................... 5
1.53 Reorganized Carmike ................................ 5
1.54 Reorganized Carmike By-laws ........................ 5
1.55 Reorganized Carmike Certificate of Incorporation ... 5
1.56 Reorganized Carmike Employment Contract ............ 5
1.57 Reorganized Carmike Management Shares .............. 5
1.58 Reorganized Debtors ................................ 5
1.59 Reorganized Subsidiaries ........................... 5
1.60 Schedules .......................................... 5
ii
4
TABLE OF CONTENTS
(CONTINUED)
PAGE
1.61 Secured Claim ........................................... 6
1.62 Secured Tax Claim ....................................... 6
1.63 Stockholders' Agreement ................................. 6
1.64 Subordinated Note Claims ................................ 6
1.65 Subordinated Notes ...................................... 6
1.66 Subordinated Notes Indenture ............................ 6
1.67 Subsequent Distribution Date ............................ 6
1.68 Subsidiary .............................................. 6
1.69 Subsidiary Equity Interest .............................. 6
1.70 Tort Claim .............................................. 6
Article II TREATMENT OF ADMINISTRATIVE EXPENSE CLAIMS AND
PRIORITY TAX CLAIMS ................................. 7
2.1 Administrative Expense Claims ........................... 7
2.2 Professional Compensation and Reimbursement Claims ...... 7
2.3 Priority Tax Claims ..................................... 7
Article III CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS ....... 7
Article IV TREATMENT OF CLAIMS AND EQUITY INTERESTS ............ 8
4.1 CLASS 1 -- OTHER PRIORITY CLAIMS ........................ 8
(a) Impairment and Voting .................... 8
(b) Distributions ............................ 8
4.2 CLASS 2 -- SECURED TAX CLAIMS ........................... 8
(a) Impairment and Voting .................... 8
(b) Distributions ............................ 8
(c) Retention of Liens ....................... 9
4.3 CLASS 3 -- OTHER SECURED CLAIMS ......................... 9
(a) Impairment and Voting .................... 9
(b) Distributions/Reinstatement of Claims .... 9
4.4 CLASS 4 -- BANK CLAIMS .................................. 9
(a) Impairment and Voting .................... 9
(b) Distributions ............................ 9
4.5 CLASS 5 -- GENERAL UNSECURED CLAIMS (OTHER THAN
CONVENIENCE CLAIMS) ..................................... 10
iii
5
TABLE OF CONTENTS
(CONTINUED)
PAGE
(a) Impairment and Voting ............................ 10
(b) Distributions ................................... 10
4.6 CLASS 6 - CONVENIENCE CLAIMS ................................... 10
(a) Impairment and Voting ........................... 10
(b) Distributions ................................... 10
4.7 CLASS 7 -- SUBORDINATED NOTE CLAIMS ............................ 11
(a) Impairment and Voting ........................... 11
(b) Reinstatement of Subordinated Notes ............. 11
(c) Distributions ................................... 11
(d) Distribution to Indenture Trustee ............... 11
4.8 CLASS 8 - PREFERRED STOCK EQUITY INTERESTS ..................... 11
(a) Impairment and Voting ........................... 11
(b) Distributions ................................... 11
4.9 CLASS 9 - COMMON STOCK EQUITY INTERESTS ....................... 12
(a) Impairment and Voting ........................... 12
(b) Distributions ................................... 12
4.10 CLASS 10 - SUBSIDIARY EQUITY INTERESTS ......................... 12
(a) Impairment and Voting ........................... 12
Article V PROVISIONS REGARDING VOTING AND Distributions UNDER THE
PLAN AND TREATMENT of disputed, CONTINGENT AND
UNLIQUIDATED CLAIMS ........................................ 12
5.1 Voting of Claims ............................................... 12
5.2 Nonconsensual Confirmation ..................................... 12
5.3 Nonenforcement of Subordination Provision ...................... 12
5.4 Method of Distributions Under the Plan ......................... 12
(a) Disbursing Agent ................................ 12
(b) Surrender of Certificates ....................... 13
(c) Delivery of Distributions ....................... 13
(d) Distributions of Cash ........................... 13
(e) Timing of Distributions ......................... 13
(f) Hart-Scott-Rodino Compliance .................... 13
(g) Minimum Distributions ........................... 13
iv
6
TABLE OF CONTENTS
(CONTINUED)
PAGE
(h) Fractional Shares ................................. 13
(i) Unclaimed Distributions ........................... 14
(j) Distributions to Holders as of the Record Date .... 14
5.5 Disputed Claims .................................................. 14
(a) Distributions as to Allowed Portion of Disputed
Claims ............................................ 14
(b) Distributions Upon Allowance of Disputed Claims ... 14
(c) Tort Claims ....................................... 14
5.6 Objections to and Resolution of Claims ........................... 14
5.7 Cancellation of Existing Securities and Agreements ............... 15
5.8 Stockholders' Agreement .......................................... 15
5.9 Registration Rights Agreement .................................... 15
Article VI EXECUTORY CONTRACTS AND UNEXPIRED LEASES ..................... 15
6.1 Assumption or Rejection of Executory Contracts and Unexpired
Leases ........................................................... 15
(a) Executory Contracts and Unexpired Leases .......... 15
(b) Schedules of Rejected Executory Contracts
and Unexpired Leases; Inclusiveness ............... 15
(c) Insurance Policies ................................ 16
(d) Approval of Assumption or Rejection of Executory
Contracts and Unexpired Leases .................... 16
(e) Cure of Defaults .................................. 16
(f) Bar Date for Filing Proofs of Claim Relating to
Executory Contracts and Unexpired Leases
Rejected Pursuant to the Plan ..................... 16
6.2 Continuation of Officer, Director and Employee Indemnification ... 16
6.3 Compensation and Benefit Programs ................................ 16
Article VII OPTION TO CONVERT SUBORDINATED NOTES TO SHARES OF
NEW COMMON STOCK ............................................. 17
7.1 Equity Infusion .................................................. 17
Article VIII IMPLEMENTATION OF THE PLAN .................................. 17
8.1 Substantive Consolidation ........................................ 17
Article IX PROVISIONS REGARDING CORPORATE GOVERNANCE AND
MANAGEMENT OF REORGANIZED DEBTORS ........................... 18
9.1 General .......................................................... 18
9.2 Directors and Officers of the Reorganized Debtors ................ 18
v
7
TABLE OF CONTENTS
(CONTINUED)
Page
(a) Reorganized Carmike ................. 18
(i) Board of Directors ........... 18
(ii) Officers ..................... 18
(b) Reorganized Subsidiaries ............ 18
(i) Boards of Directors .......... 18
(ii) Officers ..................... 18
9.3 By-laws and Certificates of Incorporation .......... 18
9.4 Issuance of New Securities ......................... 19
9.5 Reorganized Carmike Management Shares .............. 19
9.6 Reorganized Carmike Employment Contract ............ 19
Article X EFFECT OF CONFIRMATION OF PLAN ................. 19
10.1 Term of Bankruptcy Injunction or Stays ............. 19
10.2 Revesting of Assets ................................ 19
10.3 Claims Preserved ................................... 19
10.4 Discharge of Debtors ............................... 19
10.5 Limited Release .................................... 20
10.6 Injunction ......................................... 20
Article XI EFFECTIVENESS OF THE PLAN ...................... 20
11.1 Conditions Precedent to Effectiveness .............. 20
11.2 Effect of Failure of Conditions .................... 20
11.3 Waiver of Conditions ............................... 21
Article XII RETENTION OF JURISDICTION ...................... 21
Article XIII MISCELLANEOUS PROVISIONS ....................... 22
13.1 Effectuating Documents and Further Transactions .... 22
13.2 Corporate Action ................................... 22
13.3 Exemption from Transfer Taxes ...................... 22
13.4 Exculpation ........................................ 22
13.5 Termination of Committee ........................... 22
13.6 Post-Effective Date Fees and Expenses .............. 23
13.7 Payment of Statutory Fees .......................... 23
13.8 Amendment or Modification of the Plan .............. 23
vi
8
TABLE OF CONTENTS
(CONTINUED)
PAGE
13.9 Severability ....................................................... 23
13.10 Revocation or Withdrawal of the Plan ............................... 23
13.11 Binding Effect ..................................................... 23
13.12 Notices ............................................................ 23
13.13 Governing Law ...................................................... 24
13.14 Withholding and Reporting Requirements ............................. 24
13.15 Plan Supplement .................................................... 24
13.16 Allocation of Plan Distributions Between Principal and Interest .... 25
13.17 Headings ........................................................... 25
13.18 Exhibits/Schedules ................................................. 25
vii
9
Carmike Cinemas, Inc., Eastwynn Theatres, Inc., Wooden Nickel Pub, Inc.
and Military Services, Inc. propose the following joint plan of reorganization
under section 1121(a) of title 11 of the United States Code:
ARTICLE I
DEFINITIONS AND CONSTRUCTION OF TERMS
Definitions. As used herein, the following terms have the respective
meanings specified below:
1.1 Administrative Expense Claim means any right to payment
constituting a cost or expense of administration of any of the Chapter 11 Cases
under sections 503(b) and 507(a)(1) of the Bankruptcy Code, including, without
limitation, any actual and necessary costs and expenses of preserving the
estates of the Debtors, any actual and necessary costs and expenses of operating
the business of the Debtors, any indebtedness or obligations incurred or assumed
by the Debtors in Possession in connection with the conduct of their business,
including, without limitation, for the acquisition or lease of property or an
interest in property or the rendition of services, all compensation and
reimbursement of expenses to the extent Allowed by the Bankruptcy Court under
sections 330 or 503 of the Bankruptcy Code and any fees or charges assessed
against the estates of the Debtors under section 1930 of chapter 123 of title 28
of the United States Code.
1.2 Agent means Wachovia Bank, N.A., and/or its duly authorized
successor, as administrative and collateral agent for the Banks.
1.3 Allowed means, (i) with reference to any Claim, (a) any Claim
against the Debtors which has been listed by the Debtors in their Schedules, as
such Schedules may be amended by the Debtors from time to time in accordance
with Bankruptcy Rule 1009, as liquidated in amount and not disputed or
contingent and for which no contrary proof of claim has been filed, (b) any
Claim allowed pursuant to the Plan, (c) any Claim which is not Disputed, (d) any
Claim that is compromised, settled or otherwise resolved pursuant to the
authority granted to Reorganized Carmike pursuant to a Final Order of the
Bankruptcy Court or under Section 5.6 of the Plan or (e) any Claim which, if
Disputed, has been Allowed by Final Order; provided, however, that Claims
allowed solely for the purpose of voting to accept or reject the Plan pursuant
to an order of the Bankruptcy Court shall not be considered "Allowed Claims"
hereunder, and (ii) with reference to any Equity Interest, (a) any Equity
Interest registered in the stock register maintained by or on behalf of the
Debtors as of the Record Date and (b) either (x) not timely objected to or (y)
Allowed by Final Order. Unless otherwise specified herein or by order of the
Bankruptcy Court, "Allowed Claim" shall not, for any purpose under the Plan,
include interest on such Claim from and after the Commencement Date.
1.4 Ballot means the form distributed to each holder of an
impaired Claim on which is to be indicated acceptance or rejection of the Plan.
1.5 Bank Claims means all Claims of the Banks arising under the
Bank Credit Agreements, including any Secured Claim.
1.6 Bank Credit Agreements means (i) that certain Amended and
Restated Credit Agreement among Carmike, the Agent and the Banks party thereto,
dated as of January 29, 1999, and any of the documents and instruments relating
thereto, as amended, supplemented, modified or restated as of the Commencement
Date, including, without limitation, the amendment thereto dated March 31, 2000,
and (ii) that certain Term Loan Credit Agreement among Carmike, the Agent, the
Banks party thereto, Goldman Sachs Credit Partners L.P. as syndication agent,
and First Union National Bank as documentation agent, dated as of February 25,
1999, and any of the documents and instruments relating
10
thereto, as amended, supplemented, modified or restated as of the Commencement
Date, including, without limitation, the amendments thereto dated July 13, 1999
and March 31, 2000.
1.7 Banks means, collectively, the banks and financial
institutions that are parties to the Bank Credit Agreements and their successors
and assigns.
1.8 Bankruptcy Code means title 11 of the United States Code, as
amended from time to time, as applicable to the Chapter 11 Cases.
1.9 Bankruptcy Court means the United States District Court for
the District of Delaware having jurisdiction over the Chapter 11 Cases and, to
the extent of any reference under section 157 of title 28 of the United States
Code, the unit of such District Court under section 151 of title 28 of the
United States Code.
1.10 Bankruptcy Rules means the Federal Rules of Bankruptcy
Procedure as promulgated by the United States Supreme Court under section 2075
of title 28 of the United States Code, and any Local Rules of the Bankruptcy
Court.
1.11 Business Day means any day other than a Saturday, Sunday or
any other day on which commercial banks in New York, New York are required or
authorized to close by law or executive order.
1.12 Carmike means Carmike Cinemas, Inc., a Delaware corporation.
1.13 Cash means legal tender of the United States of America.
1.14 Causes of Action means, without limitation, any and all
actions, causes of action, liabilities, obligations, rights, suits, damages,
judgments, claims and demands whatsoever, whether known or unknown, existing of
hereafter arising, in law, equity or otherwise, based in whole or in part upon
any act or omission or other event occurring prior to the Commencement Date or
during the course of the Chapter 11 Cases, including through the Effective Date.
1.15 Chapter 11 Cases means the cases under chapter 11 of the
Bankruptcy Code commenced by the Debtors, styled In re Carmike Cinemas, Inc. et
al., Chapter 11 Case Nos. 00-3302 through 00-3305 (SLR) inclusive, Jointly
Administered, currently pending before the Bankruptcy Court.
1.16 Claim has the meaning set forth in section 101 of the
Bankruptcy Code.
1.17 Class means a category of holders of Claims or Equity
Interests as set forth in Article III of the Plan.
1.18 Collateral means any property or interest in property of the
estates of the Debtors subject to a Lien to secure the payment or performance of
a Claim, which Lien is not subject to avoidance or otherwise invalid under the
Bankruptcy Code or applicable state law.
1.19 Commencement Date means August 8, 2000, the date on which the
Debtors commenced the Chapter 11 Cases.
1.20 Committee means the statutory committee of unsecured creditors
appointed in the Chapter 11 Cases pursuant to section 1102 of the Bankruptcy
Code.
1.21 Common Stock means the Class A and Class B common stock of
Carmike issued and outstanding as of the Commencement Date.
2
11
1.22 Confirmation Date means the date on which the Clerk of the
Bankruptcy Court enters the Confirmation Order on the docket.
1.23 Confirmation Hearing means the hearing held by the Bankruptcy
Court to consider confirmation of the Plan pursuant to section 1129 of the
Bankruptcy Code, as such hearing may be adjourned or continued from time to
time.
1.24 Confirmation Order means the order of the Bankruptcy Court
confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
1.25 Convenience Claims means General Unsecured Claims (i) in the
amount of $1,000 or less, or (ii) which the holder of such Claim irrevocably
elects on the Ballot to reduce to $1,000.
1.26 Converted Subordinated Notes means the reinstated Subordinated
Notes which are converted to New Common Stock pursuant to Section 7.1 of the
Plan, in an aggregate face amount not to exceed $50,000,000.
1.27 Debtors means, collectively, Carmike Cinemas, Inc., Eastwynn
Theatres, Inc., Wooden Nickel Pub, Inc. and Military Services, Inc.
1.28 Debtors in Possession means the Debtors in their capacity as
debtors in possession in the Chapter 11 Cases pursuant to sections 1101, 1107(a)
and 1108 of the Bankruptcy Code.
1.29 Disbursing Agent means the Debtors or their designee in the
capacity as disbursing agent under Section 5.4(a) of the Plan.
1.30 Disclosure Statement means the disclosure statement relating
to the Plan, including, without limitation, all exhibits and schedules thereto,
as approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy
Code.
1.31 Disputed means, with reference to any Claim, (i) any Claim
proof of which was timely and properly filed, and in such case or in the case of
an Administrative Expense Claim, any Administrative Expense Claim or Claim which
is disputed under the Plan or as to which the Debtors have interposed a timely
objection and/or request for estimation in accordance with section 502(c) of the
Bankruptcy Code and Bankruptcy Rule 3018, which objection and/or request for
estimation has not been withdrawn or determined by a Final Order, and (ii) any
Claim proof of which was required to be filed by order of the Bankruptcy Court
but as to which a proof of claim was not timely or properly filed. A Claim that
is Disputed by the Debtors as to its amount only, shall be deemed Allowed in the
amount the Debtors admit owing, if any, and Disputed as to the excess.
1.32 Disputed Claim Amount means the amount set forth in the proof
of claim relating to a Disputed Claim or, if an amount is estimated in respect
of a Disputed Claim in accordance with section 502(c) of the Bankruptcy Code and
Bankruptcy Rule 3018, the amount so estimated pursuant to an order of the
Bankruptcy Court.
1.33 Effective Date means the first Business Day on which the
conditions specified in Section 11.1 of the Plan have been satisfied or waived.
1.34 Effective Date Net Cash means the amount, if any, by which the
Debtors' cash and cash equivalents on the Effective Date exceed $30 million,
less the amount of cash determined by the Debtors to be necessary to fund the
Plan and the future administration of the Chapter 11 Cases.
3
12
1.35 Equity Interest means any share of Preferred Stock, Common
Stock or other instrument evidencing an ownership interest in any of the
Debtors, whether or not transferable, and any option, warrant or right,
contractual or otherwise, to acquire any such interest.
1.36 Final Order means an order of the Bankruptcy Court or any
other court of competent jurisdiction as to which the time to appeal, petition
for certiorari, or move for reargument or rehearing has expired and as to which
no appeal, petition for certiorari, or other proceedings for reargument or
rehearing shall then be pending or as to which any right to appeal, petition for
certiorari, reargue, or rehear shall have been waived in writing in form and
substance satisfactory to the Debtors or, on and after the Effective Date,
Reorganized Carmike, or, in the event that an appeal, writ of certiorari, or
reargument or rehearing thereof has been sought, such order of the Bankruptcy
Court or other court of competent jurisdiction shall have been determined by the
highest court to which such order was appealed, or certiorari, reargument or
rehearing shall have been denied and the time to take any further appeal,
petition for certiorari or move for reargument or rehearing shall have expired;
provided, however, that the possibility that a motion under Rule 59 or Rule 60
of the Federal Rules of Civil Procedure, or any analogous rule under the
Bankruptcy Rules or applicable state court rules of civil procedure, may be
filed with respect to such order shall not cause such order not to be a Final
Order.
1.37 General Unsecured Claim means any Claim other than a Secured
Claim, Administrative Expense Claim, Priority Tax Claim, Other Priority Claim,
Bank Claim, Subordinated Note Claim, or Converted Subordinated Note Claim.
1.38 Indenture Trustee means the Wilmington Trust Company,
successor to the Bank of New York, as indenture trustee under the Subordinated
Notes Indentures.
1.39 LIBOR means the offered rate for deposits in dollars for a
thirty day interest period which appears on the Dow Jones Market Telerate Page
3750. In the event that such rate does not appear on the Dow Jones Market
Telerate Page 3750 (or otherwise on the Dow Jones Markets screen), the LIBOR
rate shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates.
1.40 Lien has the meaning set forth in section 101 of the
Bankruptcy Code.
1.41 New Common Stock means the common stock of Reorganized Carmike
authorized and to be issued pursuant to the Plan. The New Common Stock shall
have a par value of $.01 per share and such rights with respect to dividends,
liquidation, voting and other matters as are provided for in the Reorganized
Carmike Certificate of Incorporation and the Reorganized Carmike By-laws and
under applicable nonbankruptcy law.
1.42 New Bank Debt means the secured term debt authorized and to be
issued by Reorganized Carmike and guaranteed by the Reorganized Subsidiaries on
the Effective Date pursuant to the Plan in the principal amount of $265,152,167
less (a) all payments actually received by the Banks as of the Effective Date
pursuant to the February 21, 2001 order of the Bankruptcy Court regarding
adequate protection and cash collateral, and (b) any payment of Effective Date
Net Cash made to the holders of Bank Claims pursuant to Section 4.4(b) of the
Plan, on the terms and conditions described in Section 4.4(b) hereof and the
Plan Supplement.
1.43 Other Priority Claim means any Claim, other than an
Administrative Expense Claim or a Priority Tax Claim, entitled to priority in
right of payment under section 507(a) of the Bankruptcy Code.
1.44 Other Secured Claim means any Secured Claim, other than a
Secured Tax Claim or a Secured Claim held by the Agent for the benefit of the
Banks.
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1.45 Plan means this chapter 11 plan of reorganization, including,
without limitation, the Plan Supplement and all exhibits, supplements,
appendices and schedules hereto, either in its present form or as the same may
be altered, amended or modified from time to time.
1.46 Plan Supplement means the forms of documents specified in
Section 13.15 of the Plan.
1.47 Preferred Stock means the Series A Preferred Stock of Carmike
issued and outstanding as of the Commencement Date.
1.48 Prime Rate means the prime rate as published in the Wall
Street Journal.
1.49 Priority Tax Claim means any Claim of a governmental unit of
the kind specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code.
1.50 Pro Rata Share means a proportionate share, so that the ratio
of the consideration distributed (i) on account of an Allowed Claim in a Class
to the amount of such Allowed Claim is the same as the ratio of the amount of
the consideration distributed on account of all Allowed Claims in such Class to
the amount of all Allowed Claims in such Class, and (ii) on account of an
Allowed Equity Interest in a Class to the amount of such Allowed Equity Interest
is the same as the ratio of the amount of the consideration distributed on
account of all Allowed Equity Interests in such Class to the amount of all
Allowed Equity Interests in such Class.
1.51 Record Date means the day that is five Business Days from and
after the Confirmation Date.
1.52 Registration Rights Agreement means the agreement governing
the registration of the New Common Stock of certain holders thereof in
substantially the form included in the Plan Supplement.
1.53 Reorganized Carmike means Carmike on and after the Effective
Date.
1.54 Reorganized Carmike By-laws means the amended and restated
By-laws of Reorganized Carmike, which shall be in substantially the form
contained in the Plan Supplement.
1.55 Reorganized Carmike Certificate of Incorporation means the
amended and restated Certificate of Incorporation of Reorganized Carmike, which
shall be in substantially the form contained in the Plan Supplement.
1.56 Reorganized Carmike Employment Contract means the employment
contract between Reorganized Carmike and Michael W. Patrick which shall be in
substantially the form contained in the Plan Supplement.
1.57 Reorganized Carmike Management Shares means shares of New
Common Stock representing 10% of the fully-diluted New Common Stock of
Reorganized Carmike that will be issued or reserved for issuance to management
as described in Section 9.5 of the Plan.
1.58 Reorganized Debtors means Reorganized Carmike and each of the
Reorganized Subsidiaries.
1.59 Reorganized Subsidiaries means the Subsidiaries on and after
the Effective Date.
1.60 Schedules means the schedules of assets and liabilities, the
list of holders of Equity Interests and the statements of financial affairs
filed by the Wooden Nickel Pub, Inc. and Military Services, Inc. on September
19, 2000 and Carmike and Eastwynn Theatres, Inc. on October 18, 2000
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under section 521 of the Bankruptcy Code and Bankruptcy Rule 1007, and all
amendments and modifications thereto through and including the Confirmation
Date, including, without limitation, the amendments to the Schedules filed on
April 16, 2001.
1.61 Secured Claim means any Claim, to the extent reflected in the
Schedules or a proof of claim as a Secured Claim, which is secured by a Lien on
Collateral to the extent of the value of such Collateral, as determined in
accordance with section 506(a) of the Bankruptcy Code, or, in the event that
such Claim is subject to a permissible setoff under section 553 of the
Bankruptcy Code, to the extent of such permissible setoff.
1.62 Secured Tax Claim means any Secured Claim which, absent its
secured status, would be entitled to priority in right of payment under section
507(a)(8) of the Bankruptcy Code.
1.63 Stockholders' Agreement means a stockholders' agreement to be
entered into pursuant to Section 5.8 of the Plan between Reorganized Carmike and
certain holders of Allowed Converted Subordinated Notes (David W. Zalaznick,
Bermuda Investment Co., an affiliate of John W. Jordan, II, and Leucadia
National Corporation), holders of Preferred Stock Equity Interests, and Michael
W. Patrick, in their capacities as holders of New Common Stock on and after the
Effective Date, which shall be in substantially the form contained in the Plan
Supplement.
1.64 Subordinated Note Claims means all Claims for principal,
interest and other charges and arising under the Subordinated Notes Indentures.
1.65 Subordinated Notes means all notes issued and outstanding
under the Subordinated Notes Indenture as of the Commencement Date.
1.66 Subordinated Notes Indenture means the trust indenture, dated
as of February 3, 1999, between Carmike, as issuer of the Subordinated Notes,
and The Bank of New York, as trustee and all of the documents and instruments
relating thereto, as amended, supplemented, modified or restated as of the
Commencement Date.
1.67 Subsequent Distribution Date means each May 31 and November
30 commencing on May 31, 2002.
1.68 Subsidiary means any Debtor other than Carmike.
1.69 Subsidiary Equity Interest means any share of common stock or
other instrument evidencing a present ownership interest in any of the
Subsidiaries, whether or not transferable, and any option, warrant or right,
contractual or otherwise, to acquire any such interest.
1.70 Tort Claim means any Claim relating to personal injury,
property damage, products liability, discrimination, employment or any other
similar litigation Claim asserted against any of the Debtors.
Interpretation; Application of Definitions and Rules of Construction.
Wherever from the context it appears appropriate, each term stated in either the
singular or the plural shall include both the singular and the plural and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, feminine and neuter. Unless otherwise specified, all section,
article, schedule or exhibit references in the Plan are to the respective
Section in, Article of, Schedule to, or Exhibit to, the Plan. The words
"herein," "hereof," "hereto," "hereunder" and other words of similar import
refer to the Plan as a whole and not to any particular section, subsection or
clause contained in the Plan. The rules of construction contained in section 102
of the Bankruptcy Code shall apply to the construction of the Plan. A term used
herein that is not defined herein, but that is used in the Bankruptcy Code,
shall have the meaning ascribed to that term
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in the Bankruptcy Code. The headings in the Plan are for convenience of
reference only and shall not limit or otherwise affect the provisions of the
Plan.
ARTICLE II
TREATMENT OF ADMINISTRATIVE
EXPENSE CLAIMS AND PRIORITY TAX CLAIMS
2.1 Administrative Expense Claims. Except to the extent that any
entity entitled to payment of any Allowed Administrative Expense Claim agrees to
a less favorable treatment, each holder of an Allowed Administrative Expense
Claim shall receive, in full and complete settlement, satisfaction and discharge
of its Allowed Administrative Expense Claim, Cash in an amount equal to such
Allowed Administrative Expense Claim on the later of the Effective Date and the
date such Administrative Expense Claim becomes an Allowed Administrative Expense
Claim, or as soon thereafter as is practicable; provided, however, that Allowed
Administrative Expense Claims representing liabilities incurred in the ordinary
course of business by the Debtors in Possession or liabilities arising under
loans or advances to or other obligations incurred by the Debtors in Possession
shall be paid in full and performed by the applicable Reorganized Debtor in the
ordinary course of business in accordance with the terms and subject to the
conditions of any agreements governing, instruments evidencing or other
documents relating to such transactions.
2.2 Professional Compensation and Reimbursement Claims. All
entities seeking an award by the Bankruptcy Court of compensation for services
rendered or reimbursement of expenses incurred through and including the
Effective Date under sections 503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of
the Bankruptcy Code shall (a) file their respective final applications for
allowances of compensation for services rendered and reimbursement of expenses
incurred through the Effective Date by no later than the date that is 60 days
after the Effective Date or such other date as may be fixed by the Bankruptcy
Court and (b) if granted such an award by the Bankruptcy Court, be paid in full
in such amounts as are Allowed by the Bankruptcy Court (i) on the date such
Administrative Expense Claim becomes an Allowed Administrative Expense Claim, or
as soon thereafter as is practicable or (ii) upon such other terms as may be
mutually agreed upon between such holder of an Administrative Expense Claim and
the Reorganized Debtors.
2.3 Priority Tax Claims. Except to the extent that a holder of an
Allowed Priority Tax Claim has been paid by the Debtors prior to the Effective
Date or agrees to a different treatment, each holder of an Allowed Priority Tax
Claim shall receive, in full and complete settlement, satisfaction and discharge
of its Allowed Priority Tax Claim, at the sole option of Reorganized Carmike,
(a) Cash in an amount equal to such Allowed Priority Tax Claim on the later of
the Effective Date and the date such Priority Tax Claim becomes an Allowed
Priority Tax Claim, or as soon thereafter as is practicable or (b) equal annual
Cash payments in an aggregate amount equal to such Allowed Priority Tax Claim,
together with interest at a fixed annual rate equal to 8.0%, over a period
through the sixth anniversary of the date of assessment of such Allowed Priority
Tax Claim, or upon such other terms determined by the Bankruptcy Court to
provide the holder of such Allowed Priority Tax Claim deferred Cash payments
having a value, as of the Effective Date, equal to such Allowed Priority Tax
Claim.
ARTICLE III
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
Claims, other than Administrative Expense Claims and Priority Tax
Claims, are classified for all purposes, including voting, confirmation and
distribution pursuant to the Plan, as follows:
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Class Status
----- ------
Class 1 - Other Priority Claims Unimpaired
Class 2 - Secured Tax Claims Impaired
Class 3 - Other Secured Claims Unimpaired
Class 4 - Bank Claims Impaired
Class 5 - General Unsecured Claims Impaired
Class 6 - Convenience Claims Impaired
Class 7 - Subordinated Note Claims Unimpaired
Class 8 - Preferred Stock Interests Impaired
Class 9 - Common Stock Interests Impaired
Class 10 - Subsidiary Equity Interests Unimpaired
ARTICLE IV
TREATMENT OF CLAIMS AND EQUITY INTERESTS
4.1 CLASS 1 -- OTHER PRIORITY CLAIMS.
(a) Impairment and Voting. Class 1 is unimpaired by the Plan. Each
holder of an Allowed Other Priority Claim is conclusively presumed to have
accepted the Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions. Except to the extent that a holder of an
Allowed Other Priority Claim has been paid by the Debtors prior to the Effective
Date or agrees to a different treatment, each holder of an Allowed Other
Priority Claim as of the Record Date shall receive, in full and complete
settlement, satisfaction and discharge of its Allowed Other Priority Claim, Cash
in an amount equal to such Allowed Other Priority Claim on the Effective Date or
as soon thereafter as is practicable.
4.2 CLASS 2 -- SECURED TAX CLAIMS.
(a) Impairment and Voting. Class 2 is impaired by the Plan. Each
holder of an Allowed Secured Tax Claim is entitled to vote to accept or reject
the Plan.
(b) Distributions. Except to the extent that a holder of an
Allowed Secured Tax Claim has been paid by the Debtors prior to the Effective
Date or agrees to a different treatment, each holder of an Allowed Secured Tax
Claim as of the Record Date shall receive, in full and complete settlement,
satisfaction and discharge of its Allowed Secured Tax Claim, at the sole option
of Reorganized Carmike, (i) Cash in an amount equal to such Allowed Secured Tax
Claim, including any interest on such Allowed Secured Tax Claim required to be
paid pursuant to section 506(b) of the Bankruptcy Code, if any, on the later of
the Effective Date and the date such Allowed Secured Tax Claim becomes an
Allowed Secured Tax Claim, or as soon thereafter as is practicable or (ii) equal
annual Cash payments in an aggregate amount equal to such Allowed Secured Tax
Claim, together with interest at a fixed annual rate equal to 8.0%, over a
period through the sixth anniversary of the date of assessment of such Allowed
Secured Tax
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Claim, or upon such other terms determined by the Bankruptcy Court to provide
the holder of such Allowed Secured Tax Claim deferred Cash payments having a
value, as of the Effective Date, equal to such Allowed Secured Tax Claim.
(c) Retention of Liens. Each holder of an Allowed Secured Tax
Claim shall retain the Liens (or replacement Liens as may be contemplated under
nonbankruptcy law) securing its Allowed Secured Tax Claim as of the Effective
Date until full and final payment of such Allowed Secured Tax Claim is made as
provided herein, and upon such full and final payment, such Liens shall be
deemed null and void and shall be unenforceable for all purposes.
4.3 CLASS 3 -- OTHER SECURED CLAIMS.
(a) Impairment and Voting. Class 3 is unimpaired by the Plan. Each
holder of an Allowed Other Secured Claim is conclusively presumed to have
accepted the Plan and is not entitled to vote to accept or reject the Plan.
(b) Distributions/Reinstatement of Claims. Except to the extent
that a holder of an Other Secured Claim has been paid by the Debtors prior to
the Effective Date or agrees to a different treatment, each holder of an Other
Secured Claim as of the Record Date shall, in full and complete settlement,
satisfaction and discharge of its Other Secured Claim, at the sole option of the
Reorganized Debtors, (i) be reinstated and rendered unimpaired in accordance
with section 1124 of the Bankruptcy Code, (ii) receive Cash in an amount equal
to such Other Secured Claim, including any interest on such Other Secured Claim
required to be paid pursuant to section 506(b) of the Bankruptcy Code, if any,
on the Effective Date or as soon thereafter as is practicable or (iii) receive
the Collateral securing its Other Secured Claim and any interest on such Other
Secured Claim required to be paid pursuant to section 506(b) of the Bankruptcy
Code, if any, on the Effective Date or as soon thereafter as is practicable.
4.4 CLASS 4 -- BANK CLAIMS.
(a) Impairment and Voting. Class 4 is impaired by the Plan. Each
holder of an Allowed Bank Claim is entitled to vote to accept or reject the
Plan.
(b) Distributions. Each holder of an Allowed Bank Claim as of the
Record Date shall receive, in full and complete settlement, satisfaction and
discharge of its Allowed Bank Claim, its Pro Rata Share of (i) New Bank Debt,
and (ii) Cash in an amount equal to the sum of (x) the accrued and unpaid
interest on the Allowed Bank Claim in the amount of $30,000,000 (assuming an
Effective Date of January 1, 2002, increased or decreased, as the case may be,
by the interest that would accrue at the non-default contract rate based upon
the number of days between January 1, 2002 and the Effective Date) through the
Effective Date, (y) the Effective Date Net Cash, and (z) the reasonable fees and
expenses of the Banks' professionals during the Chapter 11 Cases to the extent
required to be paid by the Debtors under the Bank Credit Agreements.
The New Bank Debt will bear interest, at the option of the Reorganized
Carmike, at the Prime Rate plus 3.5% or LIBOR plus 4.5% and will mature on the
fifth anniversary of the Effective Date. Reorganized Carmike shall repay the
principal amount of the New Bank Debt prior to maturity as follows:
Date Amortization
---- ------------
June 30, 2002 $ 10,000,000
December 31, 2002 $ 10,000,000
June 30, 2003 $ 12,500,000
December 31, 2003 $ 12,500,000
June 30, 2004 $ 15,000,000
December 31, 2004 $ 15,000,000
June 30, 2005 $ 20,000,000
December 31, 2005 $ 20,000,000
June 30, 2006 $ 20,000,000
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In addition, if on or after the Effective Date, the Reorganized Debtors receive
additional working capital financing secured by a first lien in their owned real
property and leasehold interests, Reorganized Carmike shall pay to the holders
of the New Bank Debt, within thirty days of such additional financing being made
available to the Reorganized Debtors, as a further reduction of the principal
amount of the New Bank Debt an amount in the aggregate equal to the lesser of
(i) 30% of the total credit availability from such financing plus $10 million
and (ii) $20 million. The New Bank Debt will be secured by the collateral
securing the Bank Claims (subject to any settlement of the Debtors' obligations
relating to the Amended and Restated Master Lease between Carmike and MoviePlex
Realty Leasing LLC) and if and when the Reorganized Debtors receive such
additional working capital financing, by a second lien on the Debtors' owned
real property and leasehold interests pledged as collateral for the working
capital facility (to the extent consents can be obtained without additional
expense), provided that the working capital lender consents to the granting of
such second lien.
4.5 CLASS 5 -- GENERAL UNSECURED CLAIMS (OTHER THAN CONVENIENCE
CLAIMS)
(a) Impairment and Voting. Class 5 is impaired by the Plan. Each
holder of an Allowed General Unsecured Claim is entitled to vote to accept or
reject the Plan.
(b) Distributions. Except to the extent that a holder of a General
Unsecured Claim has been paid by the Debtors prior to the Effective Date or
agrees to a different treatment, each holder of an Allowed General Unsecured
Claim as of the Record Date, other than a Convenience Claim treated in
accordance with Section 4.6(b)(i) of the Plan, shall receive, in full and
complete settlement, satisfaction and discharge of such Allowed General
Unsecured Claim, Cash in the aggregate amount of its Allowed General Unsecured
Claim, together with interest from the Commencement Date to the Effective Date
at a fixed annual rate equal to 8.0% (which amount for purposes of this Section
4.5(b) shall be added to the amount of its Allowed General Unsecured Claim)
payable as follows: (i) commencing on the first Subsequent Distribution Date
after the Effective Date or as soon thereafter as is practicable, and on each
Subsequent Distribution Date thereafter, such holder shall receive payments of
interest on its Allowed General Unsecured Claim at a fixed annual rate equal to
8.0%, (ii) commencing on December 31, 2002 and on each December 31st
thereafter, or as soon as thereafter as is practicable, such holder shall
receive principal payments equal to its Pro Rata Share of $3,000,000 and (iii)
on December 31, 2006, the outstanding principal balance of such Allowed General
Unsecured Claim together with all accrued and unpaid interest thereon as of such
date.
4.6 CLASS 6 - CONVENIENCE CLAIMS
(a) Impairment and Voting. Class 6 is impaired by the Plan. Each
holder of an Allowed Convenience Claim is entitled to vote to accept or reject
the Plan.
(b) Distributions. (i) If the holders of Class 6 Convenience
Claims vote to accept the Plan by the requisite majorities set forth in section
1126(c) of the Bankruptcy Code, except to the extent that a holder of a
Convenience Claim has been paid by the Debtors prior to the Effective Date or
agrees to a different treatment, each holder of an Allowed Convenience Claim as
of the Record Date shall receive on the Effective Date, or as soon thereafter as
is practicable, in full and complete settlement, satisfaction and
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discharge of such Allowed Convenience Claim, Cash in an amount equal to 80% of
its Allowed Convenience Claim.
(ii) If the holders of Class 6 Convenience Claims do not
accept the Plan by the requisite majorities set forth in section 1126(c) of the
Bankruptcy Code, then the holders of Allowed Convenience Claims shall be treated
as holders of Allowed General Unsecured Claims and treated in accordance with
Section 4.5(b) of the Plan, provided, however, that in such event any election
by a holder of an Allowed Convenience Claim to reduce the amount of its Allowed
Claim to $1,000 shall be null and void.
4.7 CLASS 7 -- SUBORDINATED NOTE CLAIMS
(a) Impairment and Voting. Class 7 is unimpaired by the Plan. Each
holder of an Allowed Subordinated Note Claim is conclusively presumed to have
voted to accept the Plan.
(b) Reinstatement of Subordinated Notes. The Subordinated Notes
will be reinstated pursuant to section 1124(2) of the Bankruptcy Code: (i) any
default that occurred before or after the commencement of the Chapter 11 Cases,
other than a default of a kind specified in section 365(b)(2) of the Bankruptcy
Code, shall be cured, (ii) the maturity of the Subordinated Notes shall be
reinstated, (iii) a holder of a Subordinated Note Claim shall be compensated for
any damages incurred as a result of any reasonable reliance by such holder on a
contractual provision or applicable law that entitles such holder to demand or
receive accelerated payment of such claim, and (iv) the legal, equitable or
contractual rights to which such Subordinated Note Claim entitles a holder of a
Subordinated Note Claim shall not be altered.
(c) Distributions. Except to the extent that a holder of an
Allowed Subordinated Note Claim agrees to different treatment, on the Effective
Date, or as soon thereafter as is practicable, each holder of an Allowed
Subordinated Note Claim as of the Record Date shall receive, in full and
complete settlement, satisfaction and discharge of any amount necessary to
reinstate such Allowed Subordinated Note Claim pursuant to section 1124 of the
Bankruptcy Code, its Pro Rata Share of Cash in the amount of the accrued and
unpaid interest which is due and payable as of the Effective Date on the
Subordinated Notes at the non-default rate.
(d) Distribution to Indenture Trustee. On the Effective Date, or
as soon after is practicable, the Debtors shall pay the reasonable fees and
expenses of the Indenture Trustee to the extent required by the Subordinated
Notes Indenture.
4.8 CLASS 8 - PREFERRED STOCK EQUITY INTERESTS
(a) Impairment and Voting. Class 8 is impaired by the Plan. Each
holder of a Preferred Stock Equity Interest is entitled to vote to accept or
reject the Plan.
(b) Distributions. On the Effective Date, or as soon thereafter as
is practicable, each holder of an Allowed Preferred Stock Equity Interest as of
the Record Date shall receive in full and complete settlement, satisfaction and
discharge of such Allowed Preferred Stock Equity Interest, its Pro Rata Share of
New Common Stock representing the percentage of the New Common Stock described
at Section V.F. of the Disclosure Statement based upon the aggregate amount of
Converted Subordinated Notes as of the Effective Date. Assuming that the
aggregate amount of Converted Subordinated Notes is $50,000,000, each holder of
an Allowed Preferred Stock Equity Interest will receive its Pro Rata Share of
New Common Stock representing 39.9% of the New Common Stock on a fully diluted
basis. On the Effective Date, all Preferred Stock Equity Interests shall be
extinguished.
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4.9 CLASS 9 - COMMON STOCK EQUITY INTERESTS
(a) Impairment and Voting. Class 9 is impaired by the Plan. Each
holder of an Allowed Common Stock Equity Interest is entitled to vote to accept
or reject the Plan.
(b) Distributions. On the Effective Date, or as soon thereafter as
is practicable, each holder of an Allowed Common Stock Equity Interest as of the
Record Date shall receive in full and complete satisfaction of such Allowed
Common Stock Equity Interest, its Pro Rata Share of New Common Stock
representing the percentage of the New Common Stock described at Section V.F. of
the Disclosure Statement based upon the aggregate amount of Converted
Subordinated Notes as of the Effective Date. Assuming that the aggregate amount
of Converted Subordinated Notes is $50,000,000, each holder of an Allowed Common
Stock Equity Interest will receive its Pro Rata Share of New Common Stock
representing 22.0% of the New Common Stock on a fully diluted basis. On the
Effective Date, all Common Stock Equity Interests shall be extinguished.
4.10 CLASS 10 - SUBSIDIARY EQUITY INTERESTS
(a) Impairment and Voting. Class 10 is unimpaired by the Plan.
Each holder of an Allowed Subsidiary Equity Interest is conclusively presumed to
have voted to accept the Plan.
(b) Reinstatement of Subsidiary Equity Interests. Each holder of a
Subsidiary Equity Interest shall retain such Subsidiary Equity Interest. The
Subsidiary Equity Interests will be reinstated pursuant to section 1124(1) of
the Bankruptcy Code and the legal, equitable or contractual rights to which such
Subsidiary Equity Interests entitles a holder of a Subsidiary Equity Interest
shall not be altered.
ARTICLE V
PROVISIONS REGARDING VOTING AND
DISTRIBUTIONS UNDER THE PLAN AND TREATMENT
OF DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS
5.1 Voting of Claims. Each holder of an Allowed Claim in an
impaired Class of Claims or of an Allowed Equity Interest that is entitled to
vote on the Plan pursuant to Article IV of the Plan shall be entitled to vote
separately to accept or reject the Plan as provided in such order as is entered
by the Bankruptcy Court establishing procedures with respect to the solicitation
and tabulation of votes to accept or reject the Plan, or any other order or
orders of the Bankruptcy Court.
5.2 Nonconsensual Confirmation. If any impaired Class of Claims or
Equity Interests entitled to vote shall not accept the Plan by the requisite
statutory majority provided in section 1126(c) of the Bankruptcy Code, the
Debtors reserve the right to amend the Plan in accordance with Section 13.8
hereof or undertake to have the Bankruptcy Court confirm the Plan under section
1129(b) of the Bankruptcy Code or both.
5.3 Nonenforcement of Subordination Provision. The treatment
provided herein to the holders of Allowed Bank Claims shall be in full and
complete settlement, satisfaction and discharge of such Claims. The holders of
such Claims are enjoined from enforcement of the subordination provision in the
Subordinated Notes Indenture as a result of the treatment provided for herein or
as a result of any event (including a default) arising on or before the
Effective Date.
5.4 Method of Distributions Under the Plan.
(a) Disbursing Agent. All distributions under the Plan shall be
made by the Disbursing Agent. A Disbursing Agent shall not be required to give
any bond or surety or other security for the
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performance of its duties unless otherwise ordered by the Bankruptcy Court; in
the event that a Disbursing Agent is so otherwise ordered, all costs and
expenses of procuring any such bond or surety shall be borne by Reorganized
Carmike.
(b) Surrender of Certificates. As a condition to receiving any
distribution under the Plan, each holder of an Allowed Bank Claim or Allowed
Equity Interest must surrender the note or certificate evidencing such Claim or
Equity Interest to Reorganized Carmike or its designee. Any holder of an Allowed
Bank Claim or Allowed Equity Interest that fails to (a) surrender such note or
certificate or (b) execute and furnish a bond in form, substance, and amount
reasonably satisfactory to the Disbursing Agent before the first anniversary of
the Effective Date shall be deemed to have forfeited all rights and claims and
may not participate in any distribution under the Plan.
(c) Delivery of Distributions. Subject to Bankruptcy Rule 9010,
all distributions under the Plan shall be made to the holder of each Allowed
Claim or each Allowed Interest at the address of such holder as listed on the
Schedules or, with respect to Equity Interests, with the registrar or transfer
agent for Equity Interests, as of the Record Date, unless the Debtors or, on and
after the Effective Date, Reorganized Carmike, have been notified in writing of
a change of address, including, without limitation, by the filing of a timely
proof of Claim by such holder that provides an address for such holder different
from the address reflected on the Schedules. All distributions to any holder of
an Allowed Bank Claim shall be made to the Agent. All distributions to any
holder of an Allowed Subordinated Note Claim will be made to the Indenture
Trustee. Subject to section 5.4(i) below, in the event that any distribution to
any holder is returned as undeliverable, the Disbursing Agent shall use
reasonable efforts to determine the current address of such holder, but no
distribution to such holder shall be made unless and until the Disbursing Agent
has determined the then current address of such holder, at which time such
distribution shall be made to such holder without interest.
(d) Distributions of Cash. Any payment of Cash made by the
Reorganized Debtors pursuant to the Plan shall, at the Reorganized Debtors'
option, be made by check drawn on a domestic bank or wire transfer.
(e) Timing of Distributions. Any payment or distribution required
to be made under the Plan on a day other than a Business Day shall be made on
the next succeeding Business Day.
(f) Hart-Scott-Rodino Compliance. Any shares of New Common Stock
to be distributed under the Plan to any entity required to file a Premerger
Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, shall not be distributed until the notification and
waiting periods applicable under such Act to such entity shall have expired or
been terminated.
(g) Minimum Distributions. No payment of Cash less than $25 shall
be made by the Reorganized Debtors to any holder of a Claim unless a request
therefor is made in writing to Reorganized Carmike.
(h) Fractional Shares. No fractional shares of New Common Stock,
or Cash in lieu thereof, shall be distributed under the Plan. When any
distribution pursuant to the Plan on account of an Allowed Claim would otherwise
result in the issuance of a number of shares of New Common Stock that is not a
whole number, the actual distribution of shares of New Common Stock shall be
rounded as follows: (i) fractions of 1/2 or greater shall be rounded to the next
higher whole number; and (ii) fractions of less than 1/2 shall be rounded to the
next lower whole number. The total number of shares of New Common Stock to be
distributed to holders of Allowed Claims shall be adjusted as necessary to
account for the rounding provided in this Section 5.4(h).
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(i) Unclaimed Distributions. All distributions under the Plan that
are unclaimed for a period of one year after distribution thereof shall be
deemed unclaimed property under section 347(b) of the Bankruptcy Code and
revested in Reorganized Carmike and any entitlement of any holder of any Claim
or Equity Interest to such distributions shall be extinguished and forever
barred.
(j) Distributions to Holders as of the Record Date. As of the
close of business on the Record Date, the claims register and equity register,
as applicable, shall be closed, and there shall be no further changes in the
record holder of any Claim. Carmike and Reorganized Carmike shall have no
obligation to recognize any transfer of any Claim occurring after the Record
Date. Reorganized Carmike shall instead be authorized and entitled to recognize
and deal for all purposes under the Plan with only those record holders stated
on the claims register as of the close of business on the Record Date.
5.5 Disputed Claims.
(a) Distributions as to Allowed Portion of Disputed Claims. The
holder of a Disputed Claim that is or becomes, in part, an Allowed Claim, shall
receive a distribution in respect of the Allowed portion of such Claim, in
accordance with Article IV of the Plan (for Claims partially Allowed on or prior
to the Effective Date) or Section 5.5(b) of the Plan (for Claims partially
Allowed subsequent to the Effective Date).
(b) Distributions Upon Allowance of Disputed Claims. The holder of
a Disputed Claim that becomes an Allowed Claim subsequent to the Effective Date
shall receive the distribution of Cash that would have been made to such holder
under the Plan, if the Disputed Claim had been an Allowed Claim on or prior to
the Effective Date, without any additional post-Effective Date interest thereon
(except as otherwise expressly provided under the Plan), on the next Subsequent
Distribution Date that follows the month during which such Disputed Claim
becomes an Allowed Claim.
(c) Tort Claims. All Tort Claims are Disputed Claims. Any Tort
Claim as to which a proof of claim was timely filed in the Chapter 11 Cases
shall be determined and liquidated in the administrative or judicial tribunal(s)
in which it is pending on the Effective Date or, if no action was pending on the
Effective Date, in any administrative or judicial tribunal of appropriate
jurisdiction, or in accordance with any alternative dispute resolution or
similar proceeding as same may be approved by order of a court of competent
jurisdiction. Any Tort Claim determined and liquidated (i) pursuant to a
judgment obtained in accordance with this Section 5.5(c) and applicable
nonbankruptcy law that has become a Final Order or (ii) in any alternative
dispute resolution or similar proceeding as same may be approved by order of a
court of competent jurisdiction, shall be deemed an Allowed General Unsecured
Claim in such liquidated amount and satisfied in accordance with the Plan.
Nothing contained in this Section 5.5(c) shall impair the Debtors' right to seek
estimation of any and all Tort Claims in a court or courts of competent
jurisdiction or constitute or be deemed a waiver of any Cause of Action that the
Debtors may hold against any entity, including, without limitation, in
connection with or arising out of any Tort Claim.
5.6 Objections to and Resolution of Claims. Except as to
applications for allowance of compensation and reimbursement of expenses under
sections 330 and 503 of the Bankruptcy Code, Reorganized Carmike shall, on and
after the Effective Date, have the exclusive right to make and file objections
to Claims. On and after the Effective Date, Reorganized Carmike shall have the
authority to compromise, settle, otherwise resolve or withdraw any objections to
Claims and compromise, settle or otherwise resolve Disputed Claims without
approval of the Bankruptcy Court. Unless otherwise ordered by the Bankruptcy
Court, the Debtors and, on and after the Effective Date, the Reorganized
Debtors, shall file all objections to Claims that are the subject of proofs of
claim or requests for payment filed with the Bankruptcy Court (other than
applications for allowances of compensation and reimbursement of expenses) and
serve such objections upon the holder of the Claim as to which the objection is
made as
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soon as is practicable, but in no event later than 120 days after the Effective
Date or such later date as may be approved by the Bankruptcy Court.
5.7 Cancellation of Existing Securities and Agreements. On the
Effective Date, the promissory notes, share certificates, bonds and other
instruments evidencing any Claim or Equity Interest, other than an Allowed Other
Secured Claim, an Allowed Subordinated Note Claim or an Allowed Subsidiary
Equity Interest that is reinstated and rendered unimpaired pursuant to Sections
4.3(b), 4.7 and 4.10 of the Plan, respectively, shall be deemed cancelled
without further act or action under any applicable agreement, law, regulation,
order or rule and the obligations of the Debtors under the agreements,
indentures and certificates of designations governing such Claims and Equity
Interests, as the case may be, shall be discharged.
5.8 Stockholders' Agreement. Certain holders of Allowed Converted
Subordinated Notes (David W. Zalaznick, Bermuda Investment Co., an affiliate of
John W. Jordan, II, and Leucadia National Corporation), each holder of a
Preferred Stock Equity Interest, and Michael W. Patrick, shall become party to
the Stockholders' Agreement.
5.9 Registration Rights Agreement. On the Effective Date,
Reorganized Carmike shall execute the Registration Rights Agreement for the
benefit of those holders of New Common Stock as of the Effective Date who may be
regarded as an underwriter within the meaning ascribed to such term in section
1145 of the Bankruptcy Code.
ARTICLE VI
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
6.1 Assumption or Rejection of Executory Contracts and Unexpired
Leases.
(a) Executory Contracts and Unexpired Leases. Pursuant to sections
365(a) and 1123(b)(2) of the Bankruptcy Code, all executory contracts and
unexpired leases that exist between the Debtors and any person shall be deemed
assumed by the Debtors, as of the Effective Date, except for any executory
contract or unexpired lease (i) that has been rejected pursuant to an order of
the Bankruptcy Court entered prior to the Confirmation Date, (ii) as to which a
motion for approval of the rejection of such executory contract or unexpired
lease has been filed and served prior to the Confirmation Date or (iii) that is
set forth in Schedule 6.1(a)(x) (executory contracts) or Schedule 6.1(a)(y)
(unexpired leases), which Schedules shall be included in the Plan Supplement;
provided, however, that the Debtors reserve the right, on or prior to the
Confirmation Date, to amend Schedules 6.1(a)(x) or 6.1(a)(y) to delete any
executory contract or unexpired lease therefrom or add any executory contract or
unexpired lease thereto, in which event such executory contract(s) or unexpired
lease(s) shall be deemed to be, respectively, assumed by the Debtors or
rejected. The Debtors shall provide notice of any amendments to Schedules
6.1(a)(x) or 6.1(a)(y) to the parties to the executory contracts and unexpired
leases affected thereby. The listing of a document on Schedules 6.1(a)(x) and
6.1(a)(y) shall not constitute an admission by the Debtors that such document is
an executory contract or an unexpired lease or that the Debtors have any
liability thereunder.
(b) Schedules of Rejected Executory Contracts and Unexpired
Leases; Inclusiveness. Each executory contract and unexpired lease listed or to
be listed on Schedules 6.1(a)(x) or 6.1(a)(y) that relates to the use or
occupancy of real property shall include (i) modifications, amendments,
supplements, restatements, or other agreements made directly or indirectly by
any agreement, instrument, or other document that in any manner affects such
executory contract or unexpired lease, without regard to whether such agreement,
instrument or other document is listed on Schedules 6.1(a)(x) or 6.1(a)(y) and
(ii) executory contracts or unexpired leases appurtenant to the premises listed
on Schedules 6.1(a)(x) or 6.1(a)(y), including, without limitation, all
easements, licenses, permits, rights, privileges, immunities,
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options, rights of first refusal, powers, uses, usufructs, reciprocal easement
agreements, vault, tunnel or bridge agreements or franchises, and any other
interests in real estate or rights in rem relating to such premises to the
extent any of the foregoing are executory contracts or unexpired leases, unless
any of the foregoing agreements previously has been assumed or assumed and
assigned by the Debtors.
(c) Insurance Policies. All of the Debtors' insurance policies and
any agreements, documents or instruments relating thereto, are treated as
executory contracts under the Plan. Nothing contained in this Section 6.1(c)
shall constitute or be deemed a waiver of any Cause of Action that the Debtors
may hold against any entity, including, without limitation, the insurer under
any of the Debtors' policies of insurance.
(d) Approval of Assumption or Rejection of Executory Contracts and
Unexpired Leases. Entry of the Confirmation Order shall, subject to and upon the
occurrence of the Effective Date, constitute (i) the approval, pursuant to
sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of the assumption of the
executory contracts and unexpired leases assumed pursuant to Section 6.1(a)
hereof, and (ii) the approval, pursuant to sections 365(a) and 1123(b)(2) of the
Bankruptcy Code, of the rejection of the executory contracts and unexpired
leases listed on Schedule 6.1(a)(x) and Schedule 6.1(a)(y) pursuant to Section
6.1(a) hereof.
(e) Cure of Defaults. Except as may otherwise be agreed to by the
parties, within 30 days after the Effective Date, the Reorganized Debtors shall
cure any and all undisputed defaults under any executory contract or unexpired
lease assumed by the Debtors pursuant to Section 6.1(a) hereof, in accordance
with section 365(b)(1) of the Bankruptcy Code. All disputed defaults that are
required to be cured shall be cured either within 30 days of the entry of a
Final Order determining the amount, if any, of the Reorganized Debtors'
liability with respect thereto, or as may otherwise be agreed to by the parties.
(f) Bar Date for Filing Proofs of Claim Relating to Executory
Contracts and Unexpired Leases Rejected Pursuant to the Plan. Claims arising out
of the rejection of an executory contract or unexpired lease pursuant to Section
6.1 of the Plan must be filed with the Bankruptcy Court and served upon the
Debtors or, on and after the Effective Date, Reorganized Carmike, no later than
30 days after the later of (i) notice of entry of an order approving the
rejection of such executory contract or unexpired lease, (ii) notice of entry of
the Confirmation Order and (iii) notice of an amendment to Schedule 6.1(a)(x) or
6.1(a)(y). All such Claims not filed within such time will be forever barred
from assertion against the Debtors, their estates, the Reorganized Debtors, and
their property.
6.2 Continuation of Officer, Director and Employee
Indemnification. The obligations of the Debtors to defend, indemnify, reimburse
or limit the liability of their present and any former directors, officers or
employees who were directors, officers or employees, respectively, on or after
the Commencement Date, solely in their capacity as directors, officers or
employees, against any claims or obligations pursuant to the Debtors'
certificates of incorporation or by-laws, applicable state law or specific
agreement, or any combination of the foregoing, shall survive confirmation of
the Plan, remain unaffected thereby, and not be discharged irrespective of
whether indemnification, defense, reimbursement or limitation is owed in
connection with an event occurring before, on or after the Commencement Date.
6.3 Compensation and Benefit Programs. Except as provided in
Section 6.1(a) of the Plan, all savings plans, retirement plans or benefits, if
any, health care plans, performance-based incentive plans, workers' compensation
programs and life, disability, directors and officers liability and other
insurance plans are treated as executory contracts under the Plan and shall, on
the Effective Date, be deemed assumed by the Debtors, in accordance with
sections 365(a) and 1123(b)(2) of the Bankruptcy Code.
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ARTICLE VII
OPTION TO CONVERT SUBORDINATED NOTES TO SHARES OF NEW COMMON STOCK
7.1 Equity Infusion. The Debtors are offering to all holders of
Subordinated Note Claims, who are "accredited investors" as that term is defined
in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, the
option to elect to convert its reinstated Subordinated Notes into New Common
Stock on the terms provided in this Section 7.1. Each holder of an Allowed
Subordinated Note Claim, who is an accredited investor, may, at its option,
elect on an election form to be provided by the Debtors to convert such Claim
into shares of New Common Stock by returning the completed election form and an
accredited investor questionnaire in accordance with the instructions and by the
deadline set forth on such election form, provided, however, that the aggregate
principal amount of reinstated Subordinated Notes that may be converted shall
not exceed $50,000,000 in the aggregate. In the event that holders of more than
$50,000,000 of reinstated Subordinated Notes elect to convert such Claims to
shares of New Common Stock, each electing holder shall be permitted to convert
such portion of its Subordinated Notes equal to the product of $50,000,000
multiplied by the quotient of (a) the principal amount of reinstated
Subordinated Notes such holder elects to convert divided by (b) the aggregate
principal amount of reinstated Subordinated Notes sought to be converted by all
such electing holders. On the Effective Date, and prior to any distribution to
be made under the Plan, the holders of the Converted Subordinated Notes will
contribute such Subordinated Notes and their right to a distribution under the
Plan on account of such Subordinated Notes to the Reorganized Carmike in
exchange for shares of New Common Stock representing the percentage of the New
Common Stock as set forth at Section V.F. of the Disclosure Statement based upon
the aggregate amount of Converted Subordinated Notes as of the Effective Date.
Assuming that the aggregate principal amount of Converted Subordinated Notes is
$50,000,000, each holder of a Converted Subordinated Note will receive its Pro
Rata Share of New Common Stock representing 28.1% of the New Common Stock on a
fully diluted basis. The holders of the Converted Subordinated Notes must
present the Subordinated Notes representing such Claims to Reorganized Carmike
so that such Subordinated Notes may be cancelled in accordance with Section 2.11
of the Subordinated Notes Indenture. Except as provided in this Section 7.1, the
holders of Converted Subordinated Notes waive any distribution on account of
such Claims pursuant to this Plan, including the distribution to which such
holders would have been entitled under Section 4.7(b) of the Plan, which
distribution shall revest in Reorganized Carmike on the Effective Date.
ARTICLE VIII
IMPLEMENTATION OF THE PLAN
8.1 Substantive Consolidation. Entry of the Confirmation Order
shall constitute the approval, pursuant to section 105(a) of the Bankruptcy
Code, effective as of the Effective Date, of the substantive consolidation of
the Chapter 11 Cases for purposes of voting on, confirmation of and distribution
under the Plan. On and after the Effective Date, (i) all assets and liabilities
of the Subsidiaries shall be deemed merged or treated as though they were merged
into and with the assets and liabilities of Carmike, (ii) no distributions shall
be made under the Plan on account of intercompany claims among the Debtors,
(iii) all guarantees of the Debtors of the obligations of any other Debtor shall
be eliminated so that any claim against any Debtor and any guarantee thereof
executed by any other Debtor and any joint or several liability of any of the
Debtors shall be deemed to be one obligation of the consolidated Debtors and
(iv) each and every Claim filed or to be filed in the Chapter 11 Case of any of
the Debtors shall be deemed filed against the consolidated Debtors, and shall be
deemed one Claim against and obligation of the consolidated Debtors.
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ARTICLE IX
PROVISIONS REGARDING CORPORATE
GOVERNANCE AND MANAGEMENT OF REORGANIZED DEBTORS
9.1 General. On the Effective Date, the management, control and
operation of the Reorganized Debtors shall become the general responsibility of
the Boards of Directors of the Reorganized Debtors, respectively.
9.2 Directors and Officers of the Reorganized Debtors.
(a) Reorganized Carmike.
(i) Board of Directors. The initial Board of Directors of
Reorganized Carmike shall consist of ten individuals, three of whom shall be
independent directors. Of the directors of Reorganized Carmike not required to
be independent directors, one shall be the Chief Executive Officer of
Reorganized Carmike, one shall be Carl Patrick, Jr., two shall be appointed by
Jordan/Zalaznick Advisers, Inc. and its affiliates, three shall be appointed by
GS Capital Partners III, L.P. and its affiliates, and of the three independent
directors, one shall be designated by Jordan/Zalaznick Advisers, Inc. and its
affiliates, one shall be designated by GS Capital Partners III, L.P. and its
affiliates, and one shall be identified by the Chief Executive Officer of
Reorganized Carmike and agreed upon by the Board of Directors of Reorganized
Carmike. The names of the members of the initial Board of Directors of
Reorganized Carmike shall be disclosed at or prior to the Confirmation Hearing.
Each of the members of such initial Board of Directors shall serve in accordance
with the Reorganized Carmike Certificate of Incorporation or Reorganized Carmike
By-laws, as the same may be amended from time to time.
(ii) Officers. The officers of Carmike immediately prior
to the Effective Date shall serve as the initial officers of Reorganized Carmike
on and after the Effective Date. Such officers shall serve in accordance with
any employment agreement with Reorganized Carmike and applicable nonbankruptcy
law.
(b) Reorganized Subsidiaries.
(i) Boards of Directors. The members of the Boards of
Directors of the Subsidiaries immediately prior to the Effective Date shall
serve as the initial members of the Boards of Directors of the Reorganized
Subsidiaries. Each of the members of such initial Boards of Directors shall
serve in accordance with the Certificate of Incorporation or By-laws of such
Reorganized Subsidiary, as the same may be amended from time to time.
(ii) Officers. The initial officers of the Reorganized
Subsidiaries immediately prior to the Effective Date shall serve as the initial
officers of the Reorganized Subsidiaries. Such officers shall serve in
accordance with any employment agreement with the Reorganized Subsidiaries and
applicable nonbankruptcy law.
9.3 By-laws and Certificates of Incorporation. The Reorganized
Carmike By-laws, the Reorganized Carmike Certificate of Incorporation, and the
certificates of incorporation and by-laws of each of the Reorganized
Subsidiaries shall contain provisions necessary (a) to prohibit the issuance of
nonvoting equity securities as required by section 1123(a)(6) of the Bankruptcy
Code, subject to further amendment of such Certificates of Incorporation and
By-laws as permitted by applicable law and (b) to effectuate the provisions of
the Plan, in each case without any further action by the stockholders or
directors of the Debtors, the Debtors in Possession or the Reorganized Debtors.
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9.4 Issuance of New Securities. The issuance of the New Common
Stock and New Bank Debt by Reorganized Carmike is hereby authorized without
further act or action under applicable law, regulation, order or rule.
9.5 Reorganized Carmike Management Shares. Reorganized Carmike
shall, on the Effective Date, grant to Michael W. Patrick a fully vested and
non-forfeitable right to receive shares of New Common Stock representing 5% of
the outstanding shares of New Common Stock on a fully diluted basis upon such
events designated by Mr. Patrick prior to the Effective Date, reserve 5% of the
New Common Stock on a fully diluted basis with respect to the grant to Mr.
Patrick, and reserve an additional 5% of the New Common Stock on a fully diluted
basis for issuance (either through an outright grant or an option to purchase)
to management of the Reorganized Debtors at the discretion of Reorganized
Carmike's Board of Directors.
9.6 Reorganized Carmike Employment Contract. As of the Effective
Date, Reorganized Carmike shall enter into the Reorganized Carmike Employment
Contract.
ARTICLE X
EFFECT OF CONFIRMATION OF PLAN
10.1 Term of Bankruptcy Injunction or Stays. Unless otherwise
provided, all injunctions or stays provided for in the Chapter 11 Cases under
section 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on the
Confirmation Date, shall remain in full force and effect until the Effective
Date.
10.2 Revesting of Assets.
(a) On the Effective Date, except as otherwise provided for in the
Plan, (i) the property of the estate of Carmike shall vest in Reorganized
Carmike, and (ii) the assets of any Subsidiary shall vest in the corresponding
Reorganized Subsidiary.
(b) From and after the Effective Date, the Reorganized Debtors may
operate their businesses, and may use, acquire and dispose of property free of
any restrictions imposed under the Bankruptcy Code.
(c) As of the Effective Date, all property of the Reorganized
Debtors shall be free and clear of all liens, claims and interests of holders of
Claims and Equity Interests, except as otherwise provided in the Plan.
10.3 Claims Preserved. As of the Effective Date, any and all
avoidance claims accruing to the Debtors and Debtors in Possession under
sections 502(d), 544, 545, 547, 548, 549, 550 and 551 of the Bankruptcy Code,
shall be preserved and shall vest with the Reorganized Debtors.
10.4 Discharge of Debtors. The rights afforded herein and the
treatment of all Claims and Equity Interests herein shall be in exchange for and
in complete satisfaction, discharge and release of Claims and Equity Interests
of any nature whatsoever, including any interest accrued on such Claims from and
after the Commencement Date, against the Debtors and the Debtors in Possession,
or any of their assets or properties. Except as otherwise provided herein, (a)
on the Effective Date, all such Claims against and Equity Interests in the
Debtors shall be satisfied, discharged and released in full and (b) all persons
shall be precluded from asserting against the Reorganized Debtors, their
successors, or their assets or properties any other or further Claims or Equity
Interests based upon any act or omission, transaction or other activity of any
kind or nature that occurred prior to the Confirmation Date.
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10.5 Limited Release. In consideration of the efforts expended and
to be expended by the individual members of the Debtors' officers and directors
in conjunction with their operational and financial restructuring during the
Chapter 11 Cases, on the Effective Date, the Debtors and the Reorganized Debtors
automatically shall release and shall be deemed to release any and all claims
that they have or may have against such officers and directors, in their
capacities as such, arising or based upon any actions, conduct or omissions
occurring prior to the Effective Date and in connection with the Chapter 11
Cases. The Confirmation Order shall constitute an order approving the
compromise, settlement and release of any and all such claims pursuant to
section 1123(b)(3)(A) of the Bankruptcy Code.
10.6 Injunction. Except as otherwise expressly provided in the
Plan, the Confirmation Order or a separate order of the Bankruptcy Court, all
entities who have held, hold or may hold Claims against or Equity Interests in
the Debtors, are permanently enjoined, on and after the Effective Date, from (a)
commencing or continuing in any manner any action or other proceeding of any
kind with respect to any such Claim or Equity Interest, (b) the enforcement,
attachment, collection or recovery by any manner or means of any judgment,
award, decree or order against the Debtors on account of any such Claim or
Equity Interest, (c) creating, perfecting or enforcing any encumbrance of any
kind against the Debtors or against the property or interests in property of the
Debtors on account of any such Claim or Equity Interest, (d) asserting any right
of setoff, subrogation or recoupment of any kind against any obligation due from
the Debtors or against the property or interests in property of the Debtors on
account of any such Claim or Equity Interest and (e) commencing or continuing in
any manner any action or other proceeding of any kind with respect to any claims
and causes of action which are extinguished, dismissed or released pursuant to
the Plan. Such injunction shall extend to successors of the Debtors, including,
without limitation, the Reorganized Debtors, and their respective properties and
interests in property.
ARTICLE XI
EFFECTIVENESS OF THE PLAN
11.1 Conditions Precedent to Effectiveness. The Plan shall not
become effective unless and until the following conditions shall have been
satisfied or waived pursuant to Section 11.3 of the Plan:
(a) the Confirmation Order, in form and substance acceptable to
the Debtors shall have been signed by the judge presiding over the Chapter 11
Cases, and there shall not be a stay or injunction in effect with respect
thereto;
(b) all actions, documents and agreements necessary to implement
the Plan shall have been effected or executed;
(c) the holders of at least $45,685,000 in principal amount of
reinstated Subordinated Notes elect to convert such Allowed Claims into shares
of New Common Stock in accordance with Section 7.1 of the Plan; and
(d) the Debtors shall have received all authorizations, consents,
regulatory approvals, rulings, letters, no action letters, opinions or documents
that are determined by the Debtors to be necessary to implement the Plan.
11.2 Effect of Failure of Conditions. In the event that one or more
of the conditions specified in Section 11.1 of the Plan have not occurred on or
before 120 days after the Confirmation Date, (a) the Confirmation Order shall be
vacated, (b) no distributions under the Plan shall be made, (c) the Debtors and
all holders of Claims and Equity Interests shall be restored to the status quo
ante as of the day immediately preceding the Confirmation Date as though the
Confirmation Date never occurred and (d) the Debtors' obligations with respect
to Claims and Equity Interests shall remain unchanged and nothing
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contained herein shall constitute or be deemed a waiver or release of any Claims
or Equity Interests by or against the Debtors or any other person or to
prejudice in any manner the rights of the Debtors or any person in any further
proceedings involving the Debtors.
11.3 Waiver of Conditions. The Debtors may waive, by a writing
signed by an authorized representative of the Debtors and subsequently filed
with the Bankruptcy Court, one or more of the conditions precedent to
effectiveness of the Plan set forth in Section 11.1 of the Plan.
ARTICLE XII
RETENTION OF JURISDICTION
The Bankruptcy Court shall have exclusive jurisdiction of all matters
arising out of, and related to, the Chapter 11 Cases and the Plan pursuant to,
and for the purposes of, sections 105(a) and 1142 of the Bankruptcy Code and
for, among other things, the following purposes:
(a) To hear and determine pending applications for the assumption
or rejection of executory contracts or unexpired leases, if any are pending, and
the allowance of cure amounts and Claims resulting therefrom;
(b) To hear and determine any and all adversary proceedings,
applications and contested matters;
(c) To hear and determine any objection to Claims;
(d) To enter and implement such orders as may be appropriate in
the event the Confirmation Order is for any reason stayed, revoked, modified or
vacated;
(e) To issue such orders in aid of execution and consummation of
the Plan, to the extent authorized by section 1142 of the Bankruptcy Code;
(f) To consider any amendments to or modifications of the Plan, to
cure any defect or omission, or reconcile any inconsistency in any order of the
Bankruptcy Court, including, without limitation, the Confirmation Order;
(g) To hear and determine all applications for compensation and
reimbursement of expenses of professionals under sections 330, 331 and 503(b) of
the Bankruptcy Code;
(h) To hear and determine disputes arising in connection with the
interpretation, implementation or enforcement of the Plan, including, without
limitation, any and all disputes arising in connection with the interpretation,
implementation or enforcement of the discharge and injunction provisions
contained in Sections 10.4 and 10.6 of the Plan;
(i) To recover all assets of the Debtors and property of the
Debtors' estates, wherever located;
(j) To hear and determine matters concerning state, local and
federal taxes in accordance with sections 346, 505 and 1146 of the Bankruptcy
Code;
(k) To hear any other matter not inconsistent with the Bankruptcy
Code; and
(l) To enter a final decree closing the Chapter 11 Cases.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Effectuating Documents and Further Transactions. Each of the
Debtors and the Reorganized Debtors is authorized to execute, deliver, file or
record such contracts, instruments, releases, indentures and other agreements or
documents and take such actions as may be necessary or appropriate to effectuate
and further evidence the terms and conditions of the Plan and any securities
issued pursuant to the Plan.
13.2 Corporate Action. On the Effective Date, all matters provided
for under the Plan that would otherwise require approval of the stockholders or
directors of one or more of the Debtors or Reorganized Debtors, including,
without limitation, the authorization to issue or cause to be issued New Bank
Debt and New Common Stock (including the Reorganized Carmike Management Shares),
the effectiveness of the Reorganized Carmike Certificate of Incorporation, the
Reorganized Carmike By-laws, the certificates of incorporation of the
Reorganized Subsidiaries, the by-laws of the Reorganized Subsidiaries, the
Stockholders' Agreement, the Registration Rights Agreement, and the election or
appointment, as the case may be, of directors and officers of the Reorganized
Debtors pursuant to the Plan and the authorization and approval of the
Reorganized Carmike Employment Contract, shall be deemed to have occurred and
shall be in effect from and after the Effective Date pursuant to the applicable
general corporation law of the states in which the Debtors and the Reorganized
Debtors are incorporated, without any requirement of further action by the
stockholders or directors of the Debtors, or Reorganized Debtors. On the
Effective Date, or as soon thereafter as is practicable, the Reorganized Debtors
shall, if required, file their amended certificates of incorporation with the
Secretary of State of the state in which each such entity is incorporated, in
accordance with the applicable general corporation law of each such state.
13.3 Exemption from Transfer Taxes. Pursuant to section 1146(c) of
the Bankruptcy Code, the issuance, transfer or exchange of notes or equity
securities under the Plan, the creation of any mortgage, deed of trust or other
security interest, the making or assignment of any lease or sublease, or the
making or delivery of any deed or other instrument of transfer under, in
furtherance of, or in connection with the Plan, including, without limitation,
any merger agreements or agreements of consolidation, deeds, bills of sale or
assignments executed in connection with any of the transactions contemplated
under the Plan, shall not be subject to any stamp, real estate transfer,
mortgage recording or other similar tax. All sale transactions consummated by
the Debtors and approved by the Bankruptcy Court on and after the Commencement
Date through and including the Effective Date, including, without limitation,
the sale by the Debtors of owned property pursuant to section 363(b) of the
Bankruptcy Code and the assumption, assignment and sale by the Debtors of
unexpired leases of non-residential real property pursuant to section 365(a) of
the Bankruptcy Code, shall be deemed to have been made under, in furtherance of,
or in connection with the Plan and, thus, shall not be subject to any stamp,
real estate transfer, mortgage recording or other similar tax.
13.4 Exculpation. None of the Debtors, the Reorganized Debtors, or
any of their respective members, officers, directors, employees, advisors,
professionals or agents shall have or incur any liability to any holder of a
Claim or Equity Interest for any act or omission in connection with, related to,
or arising out of, the Chapter 11 Cases, the pursuit of confirmation of the
Plan, the consummation of the Plan or the administration of the Plan or the
property to be distributed under the Plan, except for willful misconduct, and,
in all respects, the Debtors, the Reorganized Debtors, and each of their
respective members, officers, directors, employees, advisors, professionals and
agents shall be entitled to rely upon the advice of counsel with respect to
their duties and responsibilities under the Plan.
13.5 Termination of Committee. The appointment of the Committee
shall terminate on the Effective Date.
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13.6 Post-Effective Date Fees and Expenses. From and after the
Effective Date, the Reorganized Debtors shall, in the ordinary course of
business and without the necessity for any approval by the Bankruptcy Court, pay
the reasonable fees and expenses of professional persons thereafter incurred by
the Reorganized Debtors, including, without limitation, those fees and expenses
incurred in connection with the implementation and consummation of the Plan.
13.7 Payment of Statutory Fees. All fees payable pursuant to
section 1930 of title 28 of the United States Code, as determined by the
Bankruptcy Court at the Confirmation Hearing, shall be paid on the Effective
Date.
13.8 Amendment or Modification of the Plan. Alterations, amendments
or modifications of or to the Plan may be proposed in writing by the Debtors at
any time prior to the Confirmation Date, provided that the Plan, as altered,
amended or modified, satisfies the conditions of sections 1122 and 1123 of the
Bankruptcy Code, and the Debtors shall have complied with section 1125 of the
Bankruptcy Code. The Plan may be altered, amended or modified at any time after
the Confirmation Date and before substantial consummation, provided that the
Plan, as altered, amended or modified, satisfies the requirements of sections
1122 and 1123 of the Bankruptcy Code and the Bankruptcy Court, after notice and
a hearing, confirms the Plan, as altered, amended or modified, under section
1129 of the Bankruptcy Code. A holder of a Claim or Equity Interest that has
accepted the Plan shall be deemed to have accepted the Plan, as altered, amended
or modified, if the proposed alteration, amendment or modification does not
materially and adversely change the treatment of the Claim or Equity Interest of
such holder.
13.9 Severability. In the event that the Bankruptcy Court
determines, prior to the Confirmation Date, that any provision in the Plan is
invalid, void or unenforceable, such provision shall be invalid, void or
unenforceable with respect to the holder or holders of such Claims or Equity
Interests as to which the provision is determined to be invalid, void or
unenforceable. The invalidity, voidness or unenforceability of any such
provision shall in no way limit or affect the enforceability and operative
effect of any other provision of the Plan.
13.10 Revocation or Withdrawal of the Plan. The Debtors reserve the
right to revoke or withdraw the Plan prior to the Confirmation Date. If the
Debtors revoke or withdraw the Plan prior to the Confirmation Date, then the
Plan shall be deemed null and void. In such event, nothing contained herein
shall constitute or be deemed a waiver or release of any claims by or against
the Debtors or any other person or to prejudice in any manner the rights of the
Debtors or any person in any further proceedings involving the Debtors.
13.11 Binding Effect. The Plan shall be binding upon and inure to
the benefit of the Debtors, the holders of Claims and Equity Interests, and
their respective successors and assigns, including, without limitation, the
Reorganized Debtors.
13.12 Notices. All notices, requests and demands to or upon the
Debtors or, on and after the Effective Date, the Reorganized Debtors, to be
effective shall be in writing and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when actually delivered or, in
the case of notice by facsimile transmission, when received and telephonically
confirmed, addressed as follows:
If to the Debtors:
Carmike Cinemas, Inc.
1301 First Avenue
Columbus, Georgia 31901-2109
Attn: F. Lee Champion, Esq.
Telephone: (706) 576-3891
Facsimile: (706) 324-0470
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with a copy to:
Weil, Gotshal & Manges LLP Richards, Layton & Finger P.A.
767 Fifth Avenue One Rodney Square
New York, New York 10153 P.O. Box 551
Attn: Harvey R. Miller, Esq. Wilmington, Delaware 19899
George A. Davis, Esq. Attn: Mark D. Collins, Esq.
Telephone: (212) 310-8000 Telephone: (302) 658-6541
Facsimile: (212) 310-8007 Facsimile: (302) 658-6548
If to the Committee:
Akin, Gump, Strauss, Hauer & Feld
590 Madison Avenue
New York, New York 10022
Attn: Fred Hodara, Esq.
Telephone: (212) 872-1000
Facsimile: (212) 872-1002
If to the Banks:
Jones, Day, Reavis & Pogue Wachovia Bank, N.A.
North Point 191 Peachtree Street, N.E.
901 Lakeside Avenue Atlanta, Georgia
Cleveland, OH 44114 Attn: Reginald Dawson
Attn: David G. Heiman, Esq. Telephone: (404) 332-4075
Telephone: (216) 586-3939 Facsimile: (404) 332-6920
Facsimile: (216) 579-0212
13.13 Governing Law. Except to the extent the Bankruptcy Code,
Bankruptcy Rules or other federal law is applicable, or to the extent an exhibit
to the Plan provides otherwise, the rights and obligations arising under this
Plan shall be governed by, and construed and enforced in accordance with, the
laws of the State of New York, without giving effect to the principles of
conflicts of law of such jurisdiction.
13.14 Withholding and Reporting Requirements. In connection with the
consummation of the Plan, the Debtors or the Reorganized Debtors, as the case
may be, shall comply with all withholding and reporting requirements imposed by
any federal, state, local or foreign taxing authority and all distributions
hereunder shall be subject to any such withholding and reporting requirements.
13.15 Plan Supplement. The Reorganized Carmike Certificate of
Incorporation, the Reorganized Carmike By-laws, Schedules 6.1(a)(x) and
6.1(a)(y) referred to in Section 6.1 of the Plan, the Stockholders' Agreement,
the Registration Rights Agreement, the Reorganized Carmike Employment Contract,
and the loan documents for the New Bank Debt shall be contained in the Plan
Supplement and filed with the Clerk of the Bankruptcy Court at least 10 days
prior to the last day upon which holders of Claims may vote to accept or reject
the Plan. Upon its filing with the Bankruptcy Court, the Plan Supplement may be
inspected in the office of the Clerk of the Bankruptcy Court during normal court
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hours. Holders of Claims or Equity Interests may obtain a copy of the Plan
Supplement upon written request to Carmike in accordance with Section 13.12 of
the Plan.
13.16 Allocation of Plan Distributions Between Principal and
Interest. To the extent that any Allowed Claim entitled to a distribution under
the Plan is comprised of indebtedness and accrued but unpaid interest thereon,
such distribution shall, for federal income tax purposes, be allocated to the
interest amount of the Claim first and then to the principal amount of the
Claim.
13.17 Headings. Headings are used in the Plan for convenience and
reference only, and shall not constitute a part of the Plan for any other
purpose.
13.18 Exhibits/Schedules. All exhibits and schedules to the Plan,
including the Plan Supplement, are incorporated into and are a part of the Plan
as if set forth in full herein.
Dated: Wilmington, Delaware
September 28, 2001
CARMIKE CINEMAS, INC., a Delaware corporation
(for itself and on behalf of each of the Subsidiaries)
By: /s/ Michael W. Patrick
----------------------------------------------------
Name: Michael W. Patrick
Title: Chairman and Chief Executive Officer
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