As filed with the Securities and Exchange Commission on August 10, 2011
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CARMIKE CINEMAS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware (State or Other Jurisdiction of Incorporation or Organization) |
58-1469127 (I.R.S. Employer Identification Number) |
1301 First Avenue
Columbus, Georgia 31901
(Address of Principal Executive Offices) (Zip Code)
Carmike Cinemas, Inc.
2004 Incentive Stock Plan
(Full Title of the Plan)
Daniel E. Ellis
Senior Vice President, General Counsel and Secretary
Carmike Cinemas, Inc.
1301 First Avenue
Columbus, Georgia 31901
(706) 576-3400
(Name, Address and Telephone Number,
Including Area Code, of Agent for Service)
Copies to:
Alan J. Prince
King & Spalding LLP
1180 Peachtree Street
Atlanta, Georgia 30309
(404) 572-4600
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer | ¨ | Accelerated filer | x | |||
Non-accelerated filer | ¨ | Smaller reporting company | ¨ | |||
(Do not check if a smaller reporting company) |
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum Offering Price Per |
Proposed Maximum Aggregate Offering |
Amount of Registration Fee | ||||
Common Stock, par value $.03 per share | 1,600,000 | $5.46 | $8,736,000 | $1,014.25 |
(1) | Pursuant to Rule 416(a) under the Securities Act of 1933, this Registration Statement also covers such indeterminate number of additional securities as may become issuable under the plan as the result of any future stock splits, stock dividends or similar adjustment of the Registrants common stock. |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) on the basis of the average of the high and low sale prices of the Registrants common stock as quoted on The NASDAQ Global Market on August 8, 2011. |
EXPLANATORY NOTE
Carmike Cinemas, Inc. (the Registrant) filed a registration statement on Form S-8 on January 10, 2005 (File No. 333-121940) (the Prior Registration Statement) to register under the Securities Act of 1933, as amended (the Securities Act), 1,405,000 shares of the Companys common stock, par value $.03 per share (the Common Stock) issuable pursuant to the Carmike Cinemas, Inc. 2004 Incentive Stock Plan (the Plan). This number included 830,000 newly authorized shares, 225,000 unissued shares that were previously authorized for issuance under the Carmike Cinemas, Inc. Employee and Consultant Long-Term Stock Incentive Plan and the Carmike Cinemas, Inc. Non-Employee Directors Long-Term Stock Incentive Plan (the Predecessor Plans) and up to 350,000 shares subject to grants under the Predecessor Plans that were subject to forfeiture and potentially available for issuance under the Plan. In addition, any shares of Common Stock which remain unissued after the cancellation, expiration or exchange of an option, stock appreciation right or stock grant or which are forfeited after issuance shall again be available for grants under the Plan, as shall any shares of Common Stock used to pay the exercise price of an option or tendered in satisfaction of a condition to a stock grant. The Registrant is filing this registration statement on Form S-8 (the Registration Statement) pursuant to and in accordance with General Instruction E of Form S-8 to register an additional 1,600,000 shares of Common Stock to be issued to eligible employees and outside directors of the Registrant or a subsidiary or parent pursuant to the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be sent or given to participants in the Plan, as specified by Rule 428(b)(1) of the Securities Act. Consistent with the instructions of Part I of Form S-8, such documents will not be filed with the Securities and Exchange Commission (the Commission) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The contents of the Prior Registration Statement are incorporated by reference into this Registration Statement. In addition, the following documents that the Registrant has previously filed with the Commission are incorporated herein by reference:
(a) | the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2010, filed on March 8, 2011; |
(b) | the Registrants Quarterly Reports on Form 10-Q for the quarterly period ended March 31, 2011, filed on May 10, 2011, and the quarterly period ended June 30, 2011, filed on August 8, 2011; |
(c) | the Registrants Current Reports on Form 8-K filed on April 4, 2011, May 23, 2011, June 1, 2011 and June 15, 2011; and |
(d) | the description of the Registrants common stock contained in amendments to Form 8-A filed with the Commission on January 31, 2002 and February 14, 2002 (File No. 000-14993), including any amendment or report filed for the purpose of updating such description. |
All documents filed by the Registrant subsequent to the date of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in the documents incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified, superseded or replaced for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference in this Registration Statement modifies, supersedes or replaces such statement. Any such statement so modified, superseded or replaced shall not be deemed, except as so modified, superseded or replaced, to constitute a part of this Registration Statement.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
Exhibit Number |
Description | |
4.1 | Amended and Restated Certificate of Incorporation of Carmike Cinemas, Inc. (filed as Exhibit 3.1 to the Registrants Amendment to Form 8-A filed January 31, 2002 and incorporated herein by reference). | |
4.2 | Certificate of Amendment to Amended and Restated Certificate of Incorporation of Carmike Cinemas, Inc., (filed as Exhibit 3.1 to the Registrants Current Report on Form 8-K filed May 21, 2010 and incorporated herein by reference). | |
4.3 | Amended and Restated By-Laws of Carmike Cinemas, Inc. (filed as Exhibit 3.1 to the Registrants Form 8-K filed January 22, 2009 and incorporated herein by reference). | |
5.1 | Opinion of King & Spalding LLP. | |
10.1 | Carmike Cinemas, Inc. 2004 Incentive Stock Plan (filed as Appendix A to the Registrants Definitive Proxy Statement for the 2011 Annual Meeting of Stockholders, filed on April 20, 2011 and incorporated herein by reference). | |
23.1 | Consent of Deloitte & Touche LLP. | |
23.2 | Consent of King & Spalding LLP (included as part of Exhibit 5.1). | |
24.1 | Power of Attorney (included in signature pages). |
Item 9. Undertakings.
(a) | The undersigned Registrant hereby undertakes: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment |
thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective Registration Statement; |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; |
provided, however, that paragraphs (a)(l)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(b) | The undersigned Registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the Registrants annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Columbus, State of Georgia, on this 10th day of August, 2011.
CARMIKE CINEMAS, INC. |
By: /s/ Richard B. Hare |
Richard B. Hare Senior Vice PresidentFinance, Treasurer, and
Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints S. David Passman III, Richard B. Hare and Daniel E. Ellis, and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all post-effective amendments to this Registration Statement and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or their substitute or substitutes may lawfully so or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on this 10th day of August, 2011.
/s/ S. David Passman III |
President, Chief Executive Officer and Director (Principal Executive Officer) | |
S. David Passman III |
||
/s/ Richard B. Hare |
Senior Vice PresidentFinance, Treasurer and Chief Financial Officer | |
Richard B. Hare |
(Principal Financial Officer and Principal Accounting Officer) | |
/s/ Roland C. Smith |
Chairman of the Board of Directors | |
Roland C. Smith |
||
/s/ Jeffrey W. Berkman |
Director | |
Jeffrey W. Berkman |
||
/s/ James A. Fleming |
Director | |
James A. Fleming |
/s/ Alan J. Hirschfield |
Director | |
Alan J. Hirschfield |
||
/s/ Fred W. Van Noy |
Senior Vice President Chief Operating Officer and Director | |
Fred W. Van Noy |
||
/s/ Patricia A. Wilson |
Director | |
Patricia A. Wilson |
EXHIBIT INDEX
Exhibit |
Description | |
4.1 | Amended and Restated Certificate of Incorporation of Carmike Cinemas, Inc. (filed as Exhibit 3.1 to the Registrants Amendment to Form 8-A filed January 31, 2002 and incorporated herein by reference). | |
4.2 | Certificate of Amendment to Amended and Restated Certificate of Incorporation of Carmike Cinemas, Inc., (filed as Exhibit 3.1 to the Registrants Current Report on Form 8-K filed May 21, 2010 and incorporated herein by reference). | |
4.3 | Amended and Restated By-Laws of Carmike Cinemas, Inc. (filed as Exhibit 3.1 to the Registrants Form 8-K filed January 22, 2009 and incorporated herein by reference). | |
5.1 | Opinion of King & Spalding LLP. | |
10.1 | Carmike Cinemas, Inc. 2004 Incentive Stock Plan (filed as Appendix A to the Registrants Definitive Proxy Statement for the 2011 Annual Meeting of Stockholders, filed on April 20, 2011 and incorporated herein by reference). | |
23.1 | Consent of Deloitte & Touche LLP. | |
23.2 | Consent of King & Spalding LLP (included as part of Exhibit 5.1). | |
24.1 | Power of Attorney (included in signature pages). |
EXHIBIT 5.1
[Letterhead of King & Spalding LLP]
August 10, 2011
Carmike Cinemas, Inc.
1301 First Avenue
Columbus, Georgia 31901
Re: Carmike Cinemas, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Carmike Cinemas, Inc., a Delaware corporation (the Company), in connection with the preparation of a Registration Statement on Form S-8 (the Registration Statement) to be filed with the Securities and Exchange Commission. The Registration Statement relates to 1,600,000 shares (the Shares) of the Companys common stock, par value $.03 per share, to be issued pursuant to, or issued upon the exercise of options granted pursuant to the Carmike Cinemas, Inc. 2004 Incentive Stock Plan (as amended, the Plan) (all such shares and options are referred to herein as the Shares and Options, respectively).
As such counsel, we have examined and relied upon such records, documents, certificates and other instruments as in our judgment are necessary or appropriate to form the basis for the opinions hereinafter set forth. In all such examinations, we have assumed the genuineness of signatures on original documents and the conformity to such original documents of all copies submitted to us as certified, conformed or photographic copies, and as to certificates of public officials, we have assumed the same to have been properly given and to be accurate.
For purposes of this opinion, we have assumed the following: (1) the Shares that may be issued pursuant to the Plan or upon exercise of the Options granted pursuant to the Plan will continue to be duly authorized on the dates of such issuance and (2) on the date on which any Option is exercised, such Option will have been duly executed, issued and delivered by the Company and will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally, general equitable principles and the discretion of courts in granting equitable remedies.
The opinions expressed herein are limited in all respects to the federal laws of the United States of America and the corporate laws of the State of Delaware (which includes the Delaware General Corporation Law, applicable provisions of the Delaware Constitution and reported judicial interpretations concerning those laws), and no opinion is expressed with respect to the laws of any other jurisdiction or any effect which such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.
Based upon the foregoing and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that:
a. | The Shares are duly authorized; and |
b. | When the Shares are issued pursuant to the Plan or upon exercise of the Options granted pursuant to the Plan against payment therefor, as the case may be, as provided in the Plan, such Shares will be validly issued, fully paid and nonassessable. |
This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur which could affect the opinions
contained herein. This letter is being rendered solely for the benefit of Carmike Cinemas, Inc. in connection with the matters addressed herein.
We consent to the filing of this opinion as an Exhibit to the Registration Statement.
Very truly yours,
/s/ King & Spalding LLP
King & Spalding LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated March 8, 2011, relating to the consolidated financial statements of Carmike Cinemas, Inc. and subsidiaries (the Company) and the effectiveness of the Companys internal control over financial reporting, appearing in the Annual Report on Form 10-K of Carmike Cinemas, Inc. and subsidiaries for the year ended December 31, 2010.
/s/ Deloitte & Touche LLP
Atlanta, Georgia
August 10, 2011