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 23, 2016
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) |
| þ | 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 23, 2016, Carmike Cinemas, Inc. (the “Company”), certain subsidiaries of the Company and Wells Fargo Bank, National Association entered into a Second Supplemental Indenture (the “Supplemental Indenture”) to the indenture dated as of June 17, 2015 (the “Indenture”) with respect to the Company’s 6.00% Senior Secured Notes due 2023 (the “Notes”). The Supplemental Indenture (i) waives the requirement for the Company to comply with the “change of control” covenant in the Indenture in connection with the acquisition of all of the outstanding capital stock of the Company by AMC Entertainment Holdings, Inc. and (ii) amends the reporting covenant in the Indenture to permit any direct or indirect parent company of the Company, if any, that becomes a guarantor of the Notes to satisfy the Company’s obligations under the reporting covenant by filing and furnishing to holders of the Notes the reports, information and other documents required by the Indenture relating to such parent company rather than the Company. The waiver and amendment contained in the Supplemental Indenture required the consent of the holders of at least a majority of the aggregate principal amount of the outstanding Notes, which was obtained through a consent solicitation. The Supplemental Indenture became operative upon the consummation of the consent solicitation on March 24, 2016.
The description of the Supplemental Indenture contained herein is qualified in its entirety by reference to the Supplemental Indenture filed as Exhibit 4.1 to this Current Report on Form 8-K, which is incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| Exhibit 4.1 | Supplemental Indenture, dated March 23, 2016, by and among the Company, the subsidiary guarantors party thereto and Wells Fargo Bank, National Association. | |||
Important Additional Information Regarding the Merger Will Be Filed With The SEC
This Current Report on Form 8-K may be deemed to be solicitation material in respect of the proposed merger of the Company with and into a wholly-owned subsidiary of AMC Entertainment Holdings, Inc. (“AMC”). In connection with the proposed merger, the Company will file with the Securities and Exchange Commission (the “SEC”) and furnish to its stockholders a proxy statement and other relevant documents. BEFORE MAKING ANY VOTING DECISION, THE COMPANY’S STOCKHOLDERS ARE URGED TO READ THE PROXY STATEMENT IN ITS ENTIRETY WHEN IT BECOMES AVAILABLE AND ANY OTHER DOCUMENTS TO BE FILED WITH THE SEC IN CONNECTION WITH THE PROPOSED MERGER OR INCORPORATED BY REFERENCE IN THE PROXY STATEMENT BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER.
The Company’s stockholders will be able to obtain a free copy of the proxy statement, when available, and other relevant documents filed by the Company with the SEC at the SEC’s website at www.sec.gov. In addition, the Company’s stockholders may obtain a free copy of the proxy statement, when available, and other relevant documents from the Company’s website at http://www.carmikeinvestors.com/.
Participation in the Solicitation
The Company and its directors, executive officers and certain other members of management and employees of the Company may be deemed to be “participants” in the solicitation of proxies from the Company’s stockholders in connection with the proposed merger. Information regarding the interests of the persons who may, under the rules of the SEC, be considered participants in the solicitation of the Company’s stockholders in connection with the proposed merger, which may be different than those of the Company’s stockholders generally, will be set forth in the proxy statement and the other relevant documents to be filed with the SEC. The Company’s stockholders can find information about the Company and its directors and executive officers and their ownership of the Company’s common stock in the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2015, which was filed with the SEC on February 29, 2016, and in its definitive proxy statement for its most recent annual meeting of stockholders, which was filed with the SEC on April 17, 2015, and in Forms 4 of directors and executive officers filed with the SEC. Additional information regarding the interests of such individuals in the proposed merger will be included in the proxy statement relating to the proposed merger when it is filed with the SEC. These documents may be obtained free of charge from the SEC’s website at www.sec.gov and Carmike’s website at www.carmikeinvestors.com.
Disclosure Regarding Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the meaning of the federal securities laws. Statements that are not historical facts, including statements about our beliefs, expectations and future performance, are forward-looking statements. Forward-looking statements include statements preceded by, followed by or that include the words, “believes,” “expects,” “anticipates,” “plans,” “estimates,” “seeks” or similar expressions. Forward-looking statements are only predictions and are not guarantees of performance. These statements are based on beliefs and assumptions of management, which in turn are based on currently available information. The forward-looking statements also involve risks and uncertainties, which could cause actual results to differ materially from those contained in any forward-looking statement. Many of these factors are beyond our ability to control or predict. Important factors that could cause actual results to differ materially from those contained in any forward-looking statement include, but are not limited to: the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement with AMC; the inability to complete the proposed merger due to the failure to obtain Carmike stockholder or regulatory approval for the proposed merger or the failure to satisfy other conditions of the proposed merger within the proposed timeframe or at all; disruption in key business activities or any impact on Carmike’s relationships with third parties as a result of the announcement of the proposed merger; the failure to obtain the necessary financing arrangements as set forth in the debt commitment letters delivered pursuant to the merger agreement with AMC, or the failure of the proposed merger to close for any other reason; risks related to disruption of management’s attention from Carmike’s ongoing business operations due to the proposed merger; the outcome of any legal proceedings, regulatory proceedings or enforcement matters that may be instituted against Carmike and others relating to the merger agreement with AMC; the risk that the pendency of the proposed merger disrupts current plans and operations and the potential difficulties in employee retention as a result of the pendency of the proposed merger; the amount of the costs, fees, expenses and charges related to the proposed merger; adverse regulatory decisions; unanticipated changes in the markets for Carmike’s business segments; general economic conditions in Carmike’s regional and national markets; Carmike’s ability to comply with covenants contained in the agreements governing Carmike’s indebtedness; Carmike’s ability to operate at expected levels of cash flow; financial market conditions including, but not limited to, changes in interest rates and the availability and cost of capital; Carmike’s ability to meet its contractual obligations, including all outstanding financing commitments; the availability of suitable motion pictures for exhibition in Carmike’s markets; competition in Carmike’s markets; competition with other forms of entertainment; the effect of Carmike’s leverage on its financial condition; prices and availability of operating supplies; the impact of continued cost control procedures on operating results; the impact of asset impairments; the impact of terrorist acts; changes in tax laws, regulations and rates; and financial, legal, tax, regulatory, legislative or accounting changes or actions that may affect the overall performance of Carmike’s business.
Consider these factors carefully in evaluating the forward-looking statements. Additional factors that may cause results to differ materially from those described in the forward-looking statements are set forth in Carmike’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015, which was filed with the SEC on February 29, 2016, under the heading “Item 1A. Risk Factors,” and in its subsequently filed reports with the SEC, including Forms 10-Q and 8-K. Readers are cautioned not to place undue reliance on the forward-looking statements included in this Current Report on Form 8-K, which speak only as of the date hereof. Carmike does not undertake to update any of these statements in light of new information or future events, except as required by applicable law.
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: March 29, 2016 | By: | /s/ Daniel E. Ellis | ||||||
| Daniel E. Ellis Senior Vice President, General Counsel and Secretary | ||||||||
EXHIBIT INDEX
| Exhibit No. |
Description | |
| Exhibit 4.1 | Supplemental Indenture, dated March 23, 2016, by and among the Company, the subsidiary guarantors party thereto and Wells Fargo Bank, National Association. | |
Exhibit 4.1
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”), is dated as of March 23, 2016, among Carmike Cinemas, Inc., a Delaware corporation (the “Company”), the Guarantors (as defined in the Indenture referred to herein), and Wells Fargo Bank, National Association, a national banking association, as trustee (the “Trustee”).
W I T N E S S E T H:
WHEREAS, the Company and the Guarantors have heretofore executed and delivered to the Trustee an Indenture, dated as of June 17, 2015 (the “Indenture”), providing for the issuance of the Company’s 6.00% Senior Secured Notes due 2023 (the “Notes”);
WHEREAS, $230,000,000 in aggregate principal amount of the Notes is currently outstanding;
WHEREAS, Section 9.02 of the Indenture provides that, with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes, the Company, the Guarantors and the Trustee may enter into an indenture supplemental to the Indenture for the purpose of amending or supplementing the Indenture or the Notes (subject to certain exceptions);
WHEREAS, the Company desires to enter into, and has requested the Trustee to join with it and the Guarantors in entering into, this Second Supplemental Indenture for the purpose of amending the Indenture and the Notes in certain respects as permitted by Section 9.02 of the Indenture;
WHEREAS, the consents have been solicited to this Second Supplemental Indenture upon the terms and subject to the conditions set forth in the Company’s Consent Solicitation Statement, dated March 15, 2016, and the related Letter of Consent;
WHEREAS, (a) the Company has received, and has delivered to the Trustee evidence of, the consent of the Holders of at least a majority in aggregate principal amount of the Notes and (b) the Company has delivered to the Trustee simultaneously with the execution and delivery of this Second Supplemental Indenture an Officers’ Certificate and an Opinion of Counsel relating to this Second Supplemental Indenture;
WHEREAS, all requirements necessary to make this Second Supplemental Indenture a valid, binding and enforceable instrument in accordance with its terms have been met and performed, and the execution and delivery of this Second Supplemental Indenture has been duly authorized in all respects.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
AMENDMENTS TO INDENTURE AND NOTES
Section 1.1 CHANGE OF CONTROL OFFER.
Notwithstanding any other provision of the Indenture, the Company shall not be required to comply with any requirements and obligations pursuant to Section 4.15 of the Indenture as a result of any Change of Control resulting from the acquisition (the “Acquisition”) by AMC Entertainment Holdings, Inc. or its Subsidiaries of all of the outstanding capital stock or assets of the Company, including, but not limited to, the requirement for the Company to make a “Change of Control Offer” in connection with the Acquisition.
Except as provided in the preceding paragraph, Section 4.15 (Offer to Repurchase Upon Change of Control) of the Indenture will continue to be operative.
Section 1.2 AMENDMENT TO SECTION 4.03
Section 4.03 of the Indenture is hereby amended by adding the following as clause (f) of Section 4.03:
(f) In addition, if at any time any direct or indirect parent company of the Company becomes a Guarantor of the Notes, the reports, information and other documents required to be filed and furnished to Holders of the Notes pursuant to this Section 4.03 may, at the option of the Company, be filed by and be those of such direct or indirect parent company rather than the Company.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.1 CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
Section 2.2 NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, this Second Supplemental Indenture, the Note Guarantees, the security documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
Section 2.3 NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SECOND SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 2.4 COUNTERPARTS. This Second Supplemental Indenture may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same agreement. The exchange of copies of this Second Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Second Supplemental Indenture as to the parties hereto and may be used in lieu of the original Indenture and signature pages for all purposes.
Section 2.5 EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
Section 2.6 THE TRUSTEE. The Trustee accepts the amendments of the Indenture effected by this Second Supplemental Indenture, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee. Without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, or for or with respect to (i) the validity or sufficiency of this Second Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Company by action or otherwise, (iii) the due execution hereof by the Company or (iv) the consequences of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
Section 2.7 SEVERABILITY. In case any provisions in this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 2.8 EFFECTIVENESS. The provisions of this Second Supplemental Indenture shall be effective only upon execution and delivery of this instrument by the parties hereto and the satisfaction of all conditions to such effectiveness set forth in the Indenture. Notwithstanding the foregoing sentence, the provisions of this Second Supplemental Indenture shall become operative only upon the satisfaction or waiver of all conditions to the Consent Solicitation, with the result that the amendments to the Indenture effected by this Second Supplemental Indenture shall be deemed to be revoked retroactive to the date hereof if all such conditions to the Consent Solicitation are not satisfied or waived. The Company shall notify the Trustee promptly after the satisfaction or waiver of all conditions to the Consent Solicitation or after the Company shall determine that the conditions will not be satisfied or waived.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed and attested, all as of the date first written above.
| COMPANY: | ||
| CARMIKE CINEMAS, INC. | ||
| By: | /s/ Daniel E. Ellis | |
| Name: | Daniel E. Ellis | |
| Title: | Senior Vice President, General Counsel and Secretary | |
| GUARANTORS: | ||
| EASTWYNN THEATRES, INC. GEORGE G. KERASOTES CORPORATION GKC INDIANA THEATRES, INC. GKC MICHIGAN THEATRES, INC. GKC THEATRES, INC. MILITARY SERVICES, INC. DIGITAL CINEMA DESTINATIONS CORP. | ||
| By: | /s/ Daniel E. Ellis | |
| Name: | Daniel E. Ellis | |
| Title: | Senior Vice President, General Counsel and Secretary | |
| CARMIKE GIFTCO, INC. | ||
| By: | /s/ Greg Wiggins | |
| Name: | Greg Wiggins | |
| Title: | President and Chief Executive Officer | |
| OCM SD CINEMA HOLDINGS, INC. | ||
| By: | /s/ Daniel E. Ellis | |
| Name: | Daniel E. Ellis | |
| Title: | President | |
| SETH CHILDS 12 OF KANSAS L.L.C. CARMIKE CONCESSIONS, LLC CARMIKE CONCESSIONS II, LLC DC APPLE VALLEY CINEMA, LLC DC BLOOMFIELD CINEMA, LLC DC CHURCHVILLE CINEMA, LLC DC CINEMA CENTERS, LLC DC CRANFORD CINEMA, LLC DC LANSING CINEMA, LLC DC LISBON CINEMA, LLC DC LONDONDERRY CINEMA, LLC DC MECHANICSBURG CINEMA, LLC DC MISSION MARKETPLACE CINEMA, LLC DC NEW SMYRNA BEACH CINEMA, LLC DC PIGEON FORGE, LLC DC POWAY CINEMA, LLC DC RIVER VILLAGE CINEMA, LLC DC SARVER CINEMA, LLC DC SOLON CINEMA, LLC DC SPARTA CINEMA, LLC DC SURPRISE CINEMA, LLC DC TEMECULA CINEMA, LLC DC TORRINGTON CINEMA, LLC DC WESTFIELD CINEMA, LLC START MEDIA/DIGIPLEX, LLC OCM SD CINEMA HOLDINGS, LLC SUNDANCE CINEMAS, LLC | ||
| By: | /s/ Daniel E. Ellis | |
| Name: | Daniel E. Ellis | |
| Title: | Manager | |
| CARMIKE REVIEWS HOLDINGS, LLC | ||
| By: | CARMIKE CINEMAS, INC. its sole member | |
| By: | /s/ Daniel E. Ellis | |
| Name: | Daniel E. Ellis | |
| Title: | Senior Vice President, General Counsel and Secretary | |
| CARMIKE MOTION PICTURES BIRMINGHAM II, LLC CARMIKE MOTION PICTURES BIRMINGHAM III, LLC CARMIKE MOTION PICTURES CHATTANOOGA, LLC CARMIKE MOTION PICTURES DAPHNE, LLC CARMIKE MOTION PICTURES PENSACOLA, LLC CARMIKE MOTION PICTURES PENSACOLA II, LLC CARMIKE MOTION PICTURES INDIANAPOLIS, LLC CARMIKE MOTION PICTURES HUNTSVILLE, LLC CARMIKE MOTION PICTURES FT. WAYNE, LLC CARMIKE MOTION PICTURES MELBOURNE, LLC CARMIKE MOTION PICTURES PORT ST. LUCIE, LLC CARMIKE MOTION PICTURES ORANGE BEACH, LLC CARMIKE MOTION PICTURES ALLENTOWN, LLC | ||
| By: | EASTWYNN THEATRES, INC. its sole member | |
| By: | /s/ Daniel E. Ellis | |
| Name: | Daniel E. Ellis | |
| Title: | Senior Vice President, General Counsel and Secretary | |
| CARMIKE MOTION PICTURES BIRMINGHAM, LLC CARMIKE MOTION PICTURES PEORIA, LLC | ||
| By: | CARMIKE REVIEWS HOLDINGS, LLC its sole member | |
| By: | /s/ Daniel E. Ellis | |
| Name: | Daniel E. Ellis | |
| Title: | Senior Vice President, General Counsel and Secretary | |
| TRUSTEE: | ||
| WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
| By: | /s/ Stefan Victory | |
| Name: | Stefan Victory | |
| Title: | Vice President | |