UNITED STATES
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): March 30, 2011
Carmike Cinemas, Inc.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 000-14993 | 58-1469127 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification Number) |
| 1301 First Avenue, Columbus, Georgia |
31901 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including area code: (706) 576-3400
Not applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01. | Entry into a Material Definitive Agreement. |
On March 30, 2011, Carmike Cinemas, Inc. (the “Corporation”) entered into amendments to its existing agreements related to Screenvision, a theatre advertising company. As previously disclosed, in October 2010, the Corporation completed its acquisition of approximately 20% of the issued and outstanding membership units of SV Holdco, LLC (“SV Holdco”), a holding company that owns the Screenvision business. Specifically, on March 30, 2011, the Corporation entered into: (1) Amendment No. 1 to Subscription Agreement, effective as of September 27, 2010 (the “Subscription Amendment”), by and between the Corporation and SV Holdco; and (2) Amendment No. 1 to Amended and Restated Limited Liability Company Agreement of SV Holdco, effective as of October 14, 2010 (the “LLC Agreement Amendment”), by and among the Corporation and the other members of SV Holdco. The Subscription Amendment amends the “Distribution Threshold” applicable to the Corporation’s class C common units of SV Holdco and the LLC Agreement Amendment amends the amounts credited to the capital accounts of the class A common unit holders of SV Holdco, each to reflect the fair market value of SV Holdco’s net assets, as of October 14, 2010, following a formal appraisal from SV Holdco’s financial advisors.
As previously announced, the Corporation entered into the Subscription Agreement concurrently with the Corporation renewing and extending its theatre exhibition agreement with Screenvision. Other than (1) the previously existing and renewed theatre exhibition agreements between the Corporation and Screenvision and (2) the acquisition described herein, neither the Corporation nor any of its affiliates has any material relationship with SV Holdco or Screenvision.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| 2.1 | Amendment No. 1 to Subscription Agreement, effective as of September 27, 2010, by and between Carmike Cinemas, Inc. and SV Holdco, LLC |
| 2.2 | Amendment No. 1 to Amended and Restated Liability Company Agreement of SV Holdco, LLC, effective as of October 14, 2010 |
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 hereunto duly authorized.
| CARMIKE CINEMAS, INC. | ||||
| Date: April 4, 2011 | By: | /s/ Richard B. Hare | ||
| Richard B. Hare | ||||
| Senior Vice President—Finance, Treasurer and Chief Financial Officer | ||||
EXHIBIT INDEX
| Exhibit |
Description | |
| 2.1 | Amendment No. 1 to Subscription Agreement, effective as of September 27, 2010, by and between Carmike Cinemas, Inc. and SV Holdco, LLC | |
| 2.2 | Amendment No. 1 to Amended and Restated Liability Company Agreement of SV Holdco, LLC, effective as of October 14, 2010 | |
Exhibit 2.1
AMENDMENT NO. 1 TO SUBSCRIPTION AGREEMENT
This AMENDMENT NO. 1 TO SUBSCRIPTION AGREEMENT (this “Amendment”), is made and entered into effective as of September 27, 2010 (the “Effective Date”), by and between Carmike Cinemas, Inc. (“Subscriber”) and SV Holdco, LLC, a Delaware limited liability company (“SV Holdco”).
WHEREAS, SV Holdco and Subscriber previously entered into that certain Subscription Agreement, dated as of the Effective Date (the “Subscription Agreement”);
WHEREAS, Subscriber and the other members party thereto previously entered into that certain Amended and Restated Limited Liability Company Agreement of SV Holdco, dated as of October 14, 2010 (the “LLC Agreement”);
WHEREAS, the Distribution Threshold (as defined in the LLC Agreement) that is applicable to Subscriber’s Initial Units pursuant to the Subscription Agreement and the LLC Agreement (by reference therein) was intended to reflect the fair market value of SV Holdco’s net assets as of October 14, 2010 (the “Valuation Date”);
WHEREAS, subsequent to the Valuation Date, (i) SV Holdco and Subscriber determined and agreed that the methodology initially used on the Effective Date by SV Holdco and Subscriber to determine the Distribution Threshold was incorrect, and (ii) SV Holdco obtained a formal appraisal of the fair market value of its net assets as of the Effective Date from its financial advisors, which differed from SV Holdco’s and Subscriber’s earlier estimation hereof and resulted in a different value being established for the Distribution Threshold applicable to Subscriber’s Initial Units;
WHEREAS, each of SV Holdco and Subscriber desire to amend the Distribution Threshold that is applicable to Subscriber’s Initial Units pursuant to the Subscription Agreement and the LLC Agreement (by reference therein) to conform to the appraised fair market value of SV Holdco’s net assets, and to do so with retroactive effect as of date of the Subscription Agreement and the LLC Agreement, as applicable, consistent with the parties’ intent; and
WHEREAS, capitalized terms used in this Amendment and not defined herein shall have the meanings set forth in Subscription Agreement.
NOW, THEREFORE, in consideration of their mutual promises, covenants, obligations and agreements set forth herein, for other good and valuable consideration, and notwithstanding anything to the contrary in the Subscription Agreement, Subscriber and SV Holdco hereby agree as follows:
1. Amendment to Subscription Agreement. Effective as of the Effective Date, Section 1.5 of the Subscription Agreement is hereby amended by deleting the reference to “$106,209,150” in clause (a) of such section and replacing it with the new value of “$85,000,000.”
2. Governing Law. This Amendment shall be governed by, and construed in accordance with the laws of the State of New York, all rights and remedies being governed by said laws, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws.
3. Descriptive Headings. The descriptive headings in this Amendment are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provision of this Amendment.
4. Counterparts. This Amendment may be executed in one or more counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be deemed to be an original and all of which shall constitute one and the same instrument.
5. No Other Modifications. Except as modified hereby, the Subscription Agreement shall remain in full force and effect and unmodified.
6. Binding Effect; Benefits. This Amendment shall be binding upon and inure to the benefit of the parties to this Amendment and their respective successors and permitted assigns. Nothing in this Amendment, express or implied, is intended or shall be construed to give any person other than the parties to this Amendment or their respective successors or permitted assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.
7. Amendment. This Amendment may not be amended, modified or supplemented except by a written instrument executed by Subscriber and SV Holdco.
8. Assignability. Neither this Amendment nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by either SV Holdco or Subscriber without the prior written consent of SV Holdco and Subscriber.
[Signature Page Follows]
IN WITNESS WHEREOF, each of the parties hereto hereby executes this Amendment effective as of September 27, 2010.
| SV HOLDCO, LLC | ||
| By: | /s/ Andy Howard | |
| Name: | Andy Howard | |
| Title: | ||
| Dated: |
| |
| SUBSCRIBER: | ||
| CARMIKE CINEMAS, INC. | ||
| By: | /s/ S. David Passman III | |
| Name: |
S. David Passman III | |
| Title: |
President and Chief Executive Officer | |
| Dated: | February 22, 2011 | |
[Signature page to Amendment No. 1 to Subscription Agreement]
Exhibit 2.2
SV HOLDCO, LLC
AMENDMENT NO. 1 TO AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
This Amendment No. 1 (this “Amendment”) to Amended and Restated Limited Liability Company Agreement of SV Holdco, LLC, a Delaware limited liability company (the “Company”), is made and entered into effective as of October 14, 2010 by and among those Persons set forth on the counterpart signature pages attached hereto (collectively, the “Members” and each, a “Member”).
RECITALS
WHEREAS, the Members previously entered into that certain Amended and Restated Limited Liability Company Agreement of the Company, dated as of October 14, 2010 (the “LLC Agreement”);
WHEREAS, as of the date of the LLC Agreement, the Distribution Thresholds applicable to the Class B Common Units and Class C Common Units pursuant to the LLC Agreement and the amounts initially credited to the Capital Accounts of the holders of Class A Common Units were intended to reflect the fair market value of the Company’s net assets as of October 14, 2010;
WHEREAS, subsequent to October 14, 2010, (i) the parties determined and agreed that the methodology initially used on October 14, 2010 by the parties to estimate the Distribution Thresholds was incorrect, and (ii) the Company obtained a formal appraisal of the fair market value of its net assets as of October 14, 2010 from its financial advisors;
WHEREAS, the Members desire to restate the amounts credited to the Capital Accounts of the holders of Class A Common Units to conform to the appraised fair market value of the Company’s net assets, and to incorporate the definition of Distribution Threshold as amended, and to do so with retroactive effect as of October 14, 2010, consistent with the Members’ intent;
WHEREAS, capitalized terms used in this Amendment and not defined herein shall have the meanings set forth in the LLC Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of their mutual promises, covenants, obligations and agreements set forth herein, for other good and valuable consideration, and notwithstanding anything to the contrary in the LLC Agreement, the Members hereby agree as follows:
1. Amendment to LLC Agreement. Effective as of October 14, 2010, the LLC Agreement is hereby amended by:
(a) deleting Schedule 2 attached thereto in its entirety and replacing it with the Schedule 2 attached to this Amendment; and
(b) deleting the definition of the term “Carmike Subscription Agreement” in Section 1.1 of the LLC Agreement in its entirety and replacing it with the following:
“shall mean that certain Subscription Agreement dated as of September 27, 2010, as amended or otherwise modified from time to time, by and between the Company and Carmike.”
2. Binding Effect. This Amendment shall inure to the benefit of and be binding upon all Members and their respective successors and Permitted Transferees.
3. Governing Law. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that might be applied because of conflicts of laws principles of the State of Delaware.
4. Counterparts. This Amendment may be executed in any number of counterparts, and each such executed counterpart shall be deemed to be an original instrument (which may include counterparts delivered by any standard form of telecommunication), but all such executed counterparts together shall constitute one and the same Amendment, and this Amendment shall be deemed to have been made, executed, and delivered on the date written above, irrespective of the time or times when the same or any counterparts thereof may have actually been executed and delivered.
5. References to Agreement. All references in the LLC Agreement to “Agreement” shall be to the LLC Agreement as amended by this Amendment.
6. No Other Modifications. Except as modified hereby, the LLC Agreement shall remain in full force and effect and unmodified.
7. Benefits of Agreement; No Third-Party Rights. The provisions of this Amendment are intended solely to benefit the Members and, to the fullest extent permitted by applicable law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such creditor shall be a third-party beneficiary of this Agreement), and the Members shall have no duty or obligation to any creditor of the Company to make any contributions or payments to the Company.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the Members of SV Holdco, LLC hereby executes this Amendment effective as of October 14, 2010.
| Shamrock Capital Growth Fund II, L.P. | ||||||||||
| By: Shamrock Capital Partners II, L.L.C., its | ||||||||||
| General Partner | ||||||||||
| By: |
/s/ Stephen D. Royer | |||||||||
| Name: | Stephen D. Royer | |||||||||
| Title: | Executive Vice President | |||||||||
| Dated: |
| |||||||||
| Shamrock Screenvision Co-Invest I LLC | ||||||||||
| By: Shamrock Capital Growth Fund II, L.P., its | ||||||||||
| Managing Member | ||||||||||
| By: | Shamrock Capital Partners II, L.L.C. | |||||||||
| Its: | General Partner | |||||||||
| By: | /s/ Stephen D. Royer | |||||||||
| Name: | Stephen D. Royer | |||||||||
| Title: | Executive Vice President | |||||||||
| Dated: |
| |||||||||
| Gallo 8 S.A.S. | ||||||||||
| By: | /s/ Douglas MacKinney | |||||||||
| Name: | Douglas MacKinney | |||||||||
| Title: | President | |||||||||
| Dated: | March 28, 2011 | |||||||||
| Technicolor, Inc. | ||||||||||
| By: | /s/ O.F. Raimondo | |||||||||
| Name: | O.F. Raimondo | |||||||||
| Title: | Chief Executive Officer | |||||||||
| Dated: |
| |||||||||
| Carmike Cinemas, Inc. | ||
| By: | /s/ S. David Passman III | |
| Name: | S. David Passman III | |
| Title: | President and Chief Executive Officer | |
| Dated: | February 22, 2011 | |
| /s/ Travis Reid | ||
| Travis Reid | ||
| Dated: |
| |