<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 2, 1997.
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
CARMIKE CINEMAS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
<TABLE>
<S> <S>
DELAWARE 58-1469127
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
1301 FIRST AVENUE
COLUMBUS, GEORGIA 31901
(706) 576-3400
(Address, including zip code, and
telephone number, including area code, of
registrant's principal executive offices)
----------------
JOHN O. BARWICK, III
VICE PRESIDENT--FINANCE
CARMIKE CINEMAS, INC.
1301 FIRST AVENUE
COLUMBUS, GEORGIA 31901
(706) 576-3400
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
----------------
With a copy to:
PATRICIA A. WILSON, ESQ.
TROUTMAN SANDERS LLP
NATIONSBANK PLAZA, SUITE 5200
600 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30308-2216
(404) 885-3000
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE
TO THE PUBLIC: AS SOON AS PRACTICABLE AFTER THE EFFECTIVE
DATE OF THIS REGISTRATION STATEMENT.
----------------
IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED
PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING
BOX. | |
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON
A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST
REINVESTMENT PLANS, CHECK THE FOLLOWING BOX. |X|
IF THIS FORM IS FILED TO REGISTER ADDITIONAL SECURITIES FOR AN OFFERING
PURSUANT TO RULE 462(B) UNDER THE SECURITIES ACT, PLEASE CHECK THE FOLLOWING BOX
AND LIST THE SECURITIES ACT REGISTRATION STATEMENT NUMBER OF THE EARLIER
EFFECTIVE REGISTRATION STATEMENT FOR THE SAME OFFERING. | |
IF THIS FORM IS A POST-EFFECTIVE AMENDMENT FILED PURSUANT TO RULE 462(C)
UNDER THE SECURITIES ACT, CHECK THE FOLLOWING BOX AND LIST THE SECURITIES ACT
REGISTRATION STATEMENT NUMBER OF THE EARLIER EFFECTIVE REGISTRATION STATEMENT
FOR THE SAME OFFERING. | |
IF DELIVERY OF THE PROSPECTUS IS EXPECTED TO BE MADE PURSUANT TO RULE 434,
PLEASE CHECK THE FOLLOWING BOX. | |
----------------
<PAGE> 2
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED SHARE* PRICE* REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, par 128,986 shares $30 13/16 $3,974,382 $1,205
value $.03 per share
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
*Estimated solely for the purpose of determining the registration fee
and calculated in accordance with Rule 457(c) under the Securities Act
on the basis of the average of the high and low prices of the Company's
Class A Common Stock on August 25, 1997 as reported by the New York
Stock Exchange.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THE REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE> 3
SUBJECT TO COMPLETION, DATED SEPTEMBER 2, 1997
128,986 SHARES
CARMIKE CINEMAS, INC.
CLASS A COMMON STOCK
The 128,986 shares (the "Shares") of Class A Common Stock, par value
$.03 per share (the "Common Stock"), of Carmike Cinemas, Inc. (the "Company" or
"Carmike") offered hereby are being offered for the account of the selling
shareholders of the Company identified herein (the "Selling Shareholders"). The
Shares offered hereby were issued by the Company in connection with the
Company's acquisition of First International Theatres. The Company will not
receive any of the proceeds from the sale of the Shares by the Selling
Shareholders. See "Selling Shareholders."
The Selling Shareholders, directly, or through agents or broker-dealers
designated from time to time, may sell the Shares from time to time on terms to
be determined at the time of sale. To the extent required, the number of Shares
to be sold, the names of any agent or broker-dealer and any applicable
commission or discount with respect to any particular offer will be set forth in
an accompanying Prospectus Supplement. The Selling Shareholders reserve the sole
right to accept or reject, in whole or in part, any proposed purchase of the
Shares to be made directly or through agents. The Company has agreed to bear all
of the expenses (other than commissions, underwriting discounts and fees of any
counsel of the Selling Shareholders) in connection with the registration and
sale of the Shares being offered by the Selling Shareholders. See "Plan of
Distribution."
The Common Stock is listed on the New York Stock Exchange under the
symbol "CKE." On August 28, 1997, the last reported sales price of the Common
Stock on the New York Stock Exchange was $31.50 per share.
FOR A DISCUSSION OF CERTAIN RISKS OF AN INVESTMENT IN THE SHARES OF
COMMON STOCK OFFERED HEREBY, SEE "RISK FACTORS" ON PAGES 4 THROUGH 5.
The Selling Shareholders and any agents or broker-dealers that
participate with the Selling Shareholders in the distribution of the Shares may
be deemed to be "underwriters" within the meaning of the Securities Act of 1933,
as amended (the "Securities Act"), and any commissions received by them and any
profit on their resale of the Shares may be deemed to be underwriting
commissions or discounts under the Securities Act. See "Plan of Distribution"
herein for indemnification arrangements among the Company and the Selling
Shareholders.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------------------
The date of this Prospectus is _____, 1997
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information filed by
the Company with the Commission can be inspected and copied at the offices of
the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and
at its regional offices located at 7 World Trade Center, 13th Floor, New York,
New York 10048, and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such materials can be obtained at prescribed rates from the
Public Reference Section of the Commission, at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Such reports, proxy statements and other information can
also be obtained from the Web Site that the Commission maintains at www.sec.gov.
In addition, reports, proxy statements and other information concerning the
Company (Symbol: CKE) can be inspected and copied at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005, on which the Common
Stock is listed.
This Prospectus constitutes a part of a Registration Statement on Form
S-3 (the "Registration Statement") filed by the Company with the Commission
under the Securities Act with respect to the shares of Common Stock offered
hereby. This Prospectus omits certain of the information contained in the
Registration Statement as permitted by the rules and regulations of the
Commission, and reference is hereby made to the Registration Statement and
related exhibits for further information with respect to the Company, the
Selling Shareholders and the securities offered hereby. Any statements contained
herein concerning the provisions of any document are not necessarily complete,
and in each instance reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been previously filed by the Company with
the Commission and are hereby incorporated by reference in this Prospectus as of
their respective dates:
(a) Annual Report on Form 10-K for the year ended December 31, 1996;
(b) Quarterly Report on Form 10-Q for the quarter ended March 31,
1997;
(c) Quarterly Report on Form 10-Q for the quarter ended June 30,
1997; and
(d) Registration Statement on Form 8-A registering the Company's
Common Stock under the Exchange Act.
Additionally, all documents filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Prospectus and prior to the termination of the offering of the
securities made hereby shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statements contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide, upon request, without charge to each person,
including any beneficial owner, to whom this Prospectus is delivered, on the
written or oral request of such person, a copy of any or all of the documents
incorporated herein by reference (other than certain exhibits to such
-2-
<PAGE> 5
documents which are not specifically incorporated by reference in such
documents). Requests for such copies should be directed to: John O. Barwick,
III, Vice President--Finance, Carmike Cinemas, Inc., 1301 First Avenue,
Columbus, Georgia 31901, telephone (706) 576-3400.
-------------------
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this Prospectus or a supplement to this Prospectus
in connection with the offer made hereby, and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or the Selling Shareholders. This Prospectus does not constitute
an offer to sell, or a solicitation of an offer to buy, the securities offered
hereby to any person in any state or other jurisdiction in which such offer or
solicitation is unlawful. The delivery of this Prospectus at any time does not
imply that information contained herein is correct as of any time subsequent to
its date.
--------------------
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<PAGE> 6
THE COMPANY
The Company is the largest motion picture exhibitor in the United
States in terms of number of theatres and screens operated. As of June 30, 1997,
the Company operated 535 theatres with an aggregate of 2,700 screens located in
35 states. The Company's screens are located primarily in communities where the
Company is the sole or leading exhibitor. Nearly all of the Company's screens
are located in multi-screen theatres, with over 96% of its screens located in
theatres with three or more screens. The Company was incorporated in Delaware in
1982 in connection with the leveraged buy-out of the Company's predecessor, the
Martin Theatres Circuit, by present management.
The principal executive offices of the Company are located at 1301
First Avenue, Columbus, Georgia 31901, and the telephone number at that address
is (706)576-3400.
RISK FACTORS
Prospective purchasers of the Common Stock should carefully consider
the factors set forth below, as well as the other information contained in this
Prospectus, in evaluating an investment in the Common Stock offered hereby.
EXPANSION PLANS
Theatre acquisitions and new theatre openings have greatly expanded the
Company's operations in the past several years and the Company intends to
continue to pursue a strategy of expansion. The success of these expansion plans
will depend on a number of factors including the selection and availability of
suitable acquisition candidates and potential site locations and the
availability of sufficient funds. There can be no assurance that suitable
candidates or locations will be available or that sufficient funds will be
internally generated or can be obtained on terms satisfactory to the Company.
Further, there can be no assurance that the Company will be as successful in
making future acquisitions or in integrating such acquisitions into the
Company's existing operations as it has been in the past.
DEPENDENCE UPON MOTION PICTURE PRODUCTION AND PERFORMANCE
The Company's business is dependent both upon the availability of
suitable motion pictures for exhibition in its theatres and the performance of
such pictures in the Company's markets. Accordingly, the Company's results of
operations will vary from period to period based upon the quantity and quality
of the motion pictures it exhibits. A disruption in the production of motion
pictures or lack of motion pictures could have a material adverse effect on the
Company's business.
SEASONALITY
The major film distributors generally release during the summer and
holiday seasons, primarily Thanksgiving and Christmas, those films which they
anticipate to be most successful. Consequently, the Company has historically
generated higher revenues during such periods. The timing of such releases can
have a significant impact on the Company's results of operations, and the
results of one quarter are not necessarily indicative of results for the next
quarter.
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<PAGE> 7
DUAL CLASSES OF COMMON STOCK; CONTROL BY PRINCIPAL SHAREHOLDERS
The outstanding Common Stock of the Company consists of 9,900,587
shares of Class A Common Stock and 1,420,700 shares of Class B Common Stock as
of June 30, 1997. Except for voting as to certain matters, holders of both
classes of Common Stock vote together as a single class, with Class A Common
Stock having one vote per share and Class B Common Stock having ten votes per
share. The two classes of Common Stock also differ as to dividend rights,
convertibility and transferability. Through its ownership, directly or
indirectly, of all the outstanding shares of the Class B Common Stock and
124,791 shares of the Class A Common Stock, including shares subject to purchase
upon exercise of vested options, the Patrick Family (including C. L. Patrick,
the Chairman of the Company's Board of Directors, Michael W. Patrick, the
Company's President and Chief Executive Officer, and Carl L. Patrick, Jr., a
director of the Company) owns approximately 59% of the combined voting power of
both classes of Common Stock. Such ownership allows them to elect all of the
directors of the Company and to determine the outcome of any other matter
submitted to stockholders for approval (except for matters requiring approval
of both classes voting separately). The voting rights of the Class B Common
Stock may make the Company less attractive as the potential target of a hostile
tender offer or other proposal to acquire or merge with the Company, even if
such actions would be in the best interests of the holders of the Class A
Common Stock.
DEPENDENCE UPON SENIOR MANAGEMENT
The Company's success depends in part on the continued contribution of
its senior management, including Michael W. Patrick, the Company's President,
and John O. Barwick, III, Vice President-Finance. The loss of the services of
one or more members of the Company's senior management could have a material
adverse effect upon the Company's business and development. The Company has an
employment agreement with Michael W. Patrick.
COMPETITION
The Company's operations are subject to varying degrees of competition
with respect to licensing films, attracting patrons, obtaining new theatre sites
and acquiring theatre circuits. In addition, the Company's theatres face
competition from a number of motion picture exhibition delivery systems, such
as pay television, pay-per-view and home video systems. While the impact of such
delivery systems on the motion picture industry is difficult to determine
precisely, there can be no assurance that they will not have an adverse impact
on attendance. Movie theatres also face competition from other forms of
entertainment competing for the public's leisure time and disposable income.
FORWARD-LOOKING INFORMATION
This Prospectus, including the information incorporated by reference
herein, contains various forward-looking statements and information that are
based on the Company's belief and assumptions, as well as information currently
available to the Company. When used in this Prospectus, the words "believe,"
"anticipate," "estimate," "expect," and similar expressions are intended to
identify forward-looking statements. Although the Company believes that the
expectations reflected in such forward-looking statements are reasonable, it can
give no assurance that such expectations will prove to be correct. Such
statements are subject to certain risks, uncertainties and assumptions. Should
one or more of these risks or uncertainties materialize, or should underlying
assumptions prove incorrect, actual results may vary materially from those
anticipated, estimated or expected.
-5-
<PAGE> 8
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares offered hereby. All of the proceeds from the sale of the Shares offered
hereby will be received by the Selling Shareholders.
THE SELLING SHAREHOLDERS
All of the Shares offered hereby are beneficially owned by the Selling
Shareholders and were acquired by the Selling Shareholders in connection with
the Company's acquisition of First International Theatres ("First
International"). The Selling Shareholders do not beneficially own any shares of
Common Stock or other securities of the Company other than the Shares. Since
the Selling Shareholders may sell all, or some or none of the Shares, no
estimate can be made of the aggregate number of Shares that are to be offered
hereby or that will be beneficially owned by the Selling Shareholders upon
completion of the offering contemplated by this Prospectus.
The following table sets forth the name of each Selling Shareholder,
the number of shares of the Company's Common Stock held by each such person as
of July 1, 1997, the number of shares which may be offered for the account of
each such person, and the number of shares of Common Stock to be owned by each
such person if all the Shares offered hereby are sold.
<TABLE>
<CAPTION>
Number of Shares to
Number of Shares Number of Shares be Owned if All
Selling Held at Which May Shares Offered Are
Shareholders July 1, 1997 be Offered Sold in this Offering
------------ ---------------- ---------------- ---------------------
<S> <C> <C> <C>
James G. Robinson 114,566 114,566 -0-
Gary Barber 3,297 3,297 -0-
Morgan Creek Productions, Inc. 4,614 4,614 -0-
Ron D. Leslie 6,509 6,509 -0-
</TABLE>
The Company entered into a Stock Purchase Agreement dated June 27, 1997
(the "Agreement") whereby it acquired ownership of First International through
the acquisition of the ownership interests of its partners Morgan Creek
Theaters, Inc., a Delaware corporation ("Morgan Creek"), SB Holdings, Inc., a
Delaware corporation ("SB Holdings"), and RDL Consulting Limited Liability
Company, a Wyoming limited liability company ("RDL Consulting"). Pursuant to
the Agreement, the shareholders of Morgan Creek received 122,477 shares of
Common Stock, the members of RDL Consulting received cash plus 6,509 shares of
Common Stock, and the shareholders of SB Holdings received cash. James G.
Robinson and Gary Barber were the sole shareholders of Morgan Creek and are the
sole shareholders of Morgan Creek Productions, Inc. Ron D. Leslie was the owner
of 95% of the ownership interests in RDL Consulting.
-6-
<PAGE> 9
Pursuant to the Agreement, the Company has filed the Registration
Statement of which this Prospectus forms a part covering the sale of the Shares
by the Selling Shareholders. The Company is obligated to use its best efforts to
have the Registration Statement become effective, and to keep the Registration
Statement continuously effective until the earlier of (i) the time when all the
Shares have been sold by the Selling Shareholders, and (ii) the earlier of one
year following the Closing Date (as defined in the Agreement) or such earlier
time, if any, as to which Rule 144 shall be available for resales of the
Shares. The Company has agreed to pay all expenses incurred in connection with
the registration and sale of the Shares pursuant to the Agreement, other than
brokerage fees or commissions, underwriting discounts and fees of any counsel
for the Selling Shareholders. Any of the Shares sold pursuant to this
Prospectus will no longer be entitled to the benefits of the Agreement.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Shareholders,
or by pledgees, donees, transferees or other successors in interest, if any, who
acquire the Shares in transactions permitted under the Agreement. Such sales may
be made on one or more exchanges or in the over-the-counter market, or otherwise
at prices and at terms then prevailing or at prices related to the then current
market price, or in negotiated transactions. The Shares may be sold by one or
more of the following: (a) a block trade in which the broker or dealer so
engaged will attempt to sell the Shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction; (b) purchases
by a broker or dealer as principal and resale by such broker or dealer for its
account pursuant to this Prospectus; (c) an exchange distribution in accordance
with the rules of such exchange; and (d) ordinary brokerage transactions and
transactions in which the broker solicits purchasers. In effecting sales,
brokers or dealers engaged by the Selling Shareholders may arrange for other
brokers or dealers to participate. Brokers or dealers will receive commissions
or discounts from Selling Shareholders in amounts to be negotiated immediately
prior to the sale. Such brokers or dealers and any other participating brokers
or dealers may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales. In addition, any securities
covered by this Prospectus which qualify for sale pursuant to Rule 144 may be
sold under Rule 144 rather than pursuant to this Prospectus.
Upon the Company being notified by a Selling Shareholder that any
material arrangement has been entered into with a broker-dealer for the sale of
Shares through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplemented
prospectus will be filed, if required, pursuant to Rule 424(c) under the
Securities Act, disclosing (i) the name of each such Selling Shareholder and of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such shares were sold, (iv) the commissions paid or discounts
or concessions allowed to such broker-dealer(s), where applicable, (v) that such
broker-dealer(s) did not conduct any investigation to verify the information set
out or incorporated by reference in this Prospectus, and (vi) other facts
material to the transaction.
The Selling Shareholders have agreed to pay any brokerage fees or
commissions, underwriting discounts and fees of any counsel for the Selling
Shareholders in connection with the registration and sale of the Shares. All
other expenses in connection with the registration and sale of the Shares
hereunder will be paid by the Company. The securities laws of a particular
state might require that the Shares be sold in that state only through
registered or licensed brokers or dealers.
-7-
<PAGE> 10
The Company has agreed to use its reasonable efforts to keep the
Registration Statement covering the sale of the Shares by the Selling
Shareholders continuously effective until the earlier of (i) the time when all
the Shares have been sold by the Selling Shareholders, and (ii) the earlier of
one year following the Closing Date or such earlier time, if any, as to which
Rule 144 shall be available for resales of the Shares.
Pursuant to the terms of the Agreement, the Company and the Selling
Shareholders have agreed to indemnify each other and certain other parties,
including underwriters, if any, for certain liabilities, including liabilities
under the Securities Act, in connection with the registration of the Shares.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be
passed upon for the Company by Troutman Sanders LLP, Atlanta, Georgia. Carl E.
Sanders, a partner in Troutman Sanders LLP, is a director of the Company and the
beneficial owner of 56,228 shares of Common Stock.
EXPERTS
The consolidated financial statements of the Company incorporated by
reference in the Company's Annual Report (Form 10-K) for the year ended December
31, 1996 have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such financial statements have been incorporated herein by reference
in reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
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<PAGE> 11
PART II. INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses to be paid in connection with the issuance and
distribution of the securities being registered, other than underwriting
discounts and commissions, are as follows:
SEC registration fee.................................. $ 1,205
NYSE listing fee...................................... 1,500
Legal and Accounting fees and expenses................ 27,500
Miscellaneous......................................... 295
----------
Total................................................. $ 30,500
All of the above items are estimates except the SEC registration fee and the
NYSE listing fee. All of such estimated expenses will be borne by the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of Title 8 of the Delaware Code gives a corporation power
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The same Section also
gives a corporation power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper. Also, the Section states that, to the extent that a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in defense of any such action, suit or proceeding, or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Article VI of the Company's By-Laws provides that the Company shall
indemnify the directors and officers of the Company to the fullest extent
authorized by the Delaware General Corporation Law.
II-1
<PAGE> 12
Article 9 of the Company's Certificate of Incorporation provides in
regard to the limitation of liability of directors and officers as follows:
No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction for which the director derived an improper personal
benefit. This Article NINTH shall not eliminate or limit the liability
of a director for any act or omission occurring prior to the time this
Article NINTH became effective.
II-2
<PAGE> 13
ITEM 16. EXHIBITS.
Exhibit No. Description
----------- -----------
2 Stock Purchase Agreement dated June 27, 1997 by and between
Carmike Cinemas, Inc., Eastwynn Theatres, Inc., Morgan Creek
Theaters, Inc., SB Holdings, Inc., RDL Consulting Limited
Liability Company, and the Sellers (as defined therein)
(filed as Exhibit 2 to the Company's quarterly report on Form
10-Q for the quarter ended June 30, 1997 and incorporated
herein by reference).
5 Opinion of Troutman Sanders LLP.
23.1 Consent of Troutman Sanders LLP (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney (included in the signature page to the
Registration Statement).
ITEM 17. 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; (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change in such
information in the Registration Statement; provided, however, that the
Registrant need not file a post-effective amendment to include the information
required to be included by subsection (i) or (ii) if such information is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act 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; and (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
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities 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
II-3
<PAGE> 14
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 Securities
Act and will be governed by the final adjudication of such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
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.
II-4
<PAGE> 15
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on August 29, 1997.
CARMIKE CINEMAS, INC.
By: /s/ John O. Barwick, III
-------------------------
John O. Barwick, III
Vice President--Finance
POWER OF ATTORNEY
We, the undersigned officers and directors of Carmike Cinemas, Inc.
hereby severally constitute and appoint Michael W. Patrick and John O. Barwick,
III, and each of them singly, our true and lawful attorneys with full power to
them, and each of them singly, to sign for us and in our names in the capacities
indicated below, the Registration Statement on Form S-3 filed herewith and any
and all pre-effective and post-effective amendments to said Registration
Statement, and generally to do all such things in our names and on our behalf in
our capacities as officers and directors to enable Carmike Cinemas, Inc. to
comply with the provisions of the Securities Act of 1933, and all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below and as of the date above indicated.
SIGNATURE CAPACITY
--------- --------
/s/ Michael W. Patrick Director, Chief Executive Officer and President
- ----------------------- (Principal Executive Officer)
Michael W. Patrick
/s/ John O. Barwick, III Vice President--Finance
- ----------------------- (Principal Financial and Accounting Officer)
John O. Barwick, III
/s/ C. L. Patrick Chairman of the Board
- -----------------------
C. L. Patrick
/s/ John W. Jordan, II Director
- -----------------------
John W. Jordan, II
/s/ Carl L. Patrick, Jr. Director
- -----------------------
Carl L. Patrick, Jr.
/s/ Carl E. Sanders Director
- -----------------------
Carl E. Sanders
/s/ David W. Zalaznick Director
- -----------------------
David W. Zalaznick
II-5
<PAGE> 16
EXHIBIT INDEX
Exhibit No. Description
2 Stock Purchase Agreement dated June 27, 1997 by and between
Carmike Cinemas, Inc., Eastwynn Theatres, Inc., Morgan Creek
Theaters, Inc., SB Holdings, Inc., RDL Consulting Limited
Liability Company, and the Sellers (as defined therein)
(filed as Exhibit 2 to the Company's quarterly report on
Form 10-Q for the quarter ended June 30, 1997 and
incorporated herein by reference).
5 Opinion of Troutman Sanders LLP.
23.1 Consent of Troutman Sanders LLP (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney (included in the signature page to the
Registration Statement).
<PAGE> 1
EXHIBIT 5
TROUTMAN SANDERS LLP
ATTORNEYS AT LAW
A LIMITED LIABILITY PARTNERSHIP
NATIONSBANK PLAZA
600 PEACHTREE STREET, N.E. - SUITE 5200
ATLANTA, GEORGIA 30308-2216
TELEPHONE: 404-885-3000
FACSIMILE: 404-885-3995
August 29, 1997
Carmike Cinemas, Inc.
1301 First Avenue
Columbus, Georgia 31901
Gentlemen:
We have acted as counsel to Carmike Cinemas, Inc., a Delaware corporation
(the "Company"), in connection with the proposed offering and sale by certain
shareholders of the Company (the "Selling Shareholders") of 128,986 shares (the
"Shares") of the Company's Class A Common Stock, par value $.03 per share (the
"Common Stock").
In the capacity described above, we have examined originals (or copies
certified or otherwise identified to our satisfaction) of the Company's
Registration Statement on Form S-3 with respect to the secondary public
offering of the Shares by the Selling Shareholders, the form of Common Stock
certificate, the Certificate of Incorporation and Bylaws of the Company as in
effect on the date hereof, the Stock Purchase Agreement dated June 27, 1997 by
and among the Company, Eastwynn Theatres, Inc., Morgan Creek Theatres, Inc., SB
Holdings, Inc., RDL Consulting Limited Liability Company and the Selling
Shareholders, corporate and other documents, records and papers and
certificates of officers of the Company and public officials. In such
examination, we have also assumed the genuineness of all signatures, the
authenticity of all documents submitted to us and the genuineness and
conformity to original documents of documents submitted to us as certified or
photostatic copies.
On the basis of such examination, it is our opinion that the Shares are
duly and validly issued and outstanding, fully paid and non-assessable shares
of Common Stock of the Company.
We are members of the Bar of Georgia. In expressing the opinions set
forth above, we are not passing on the laws of any jurisdiction other than the
laws of the State of Georgia and the general corporation law of the State of
Delaware and the Federal law of the United States of America.
<PAGE> 2
TROUTMAN SANDERS LLP
ATTORNEYS AT LAW
A LIMITED LIABILITY PARTNERSHIP
Carmike Cinemas, Inc.
August 29, 1997
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the heading
"Legal Matters" in the related prospectus.
Very truly yours,
/s/ TROUTMAN SANDERS LLP
TROUTMAN SANDERS LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Carmike Cinemas,
Inc. for the registration of 128,986 shares of its Class A Common Stock and to
the incorporation by reference therein of our report dated February 3, 1997,
with respect to the consolidated financial statements of Carmike Cinemas, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1996, filed with Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Columbus, Georgia
August 29, 1997
