EXHIBIT 4.4
CARMIKE CINEMAS, INC.
FIRST AMENDMENT TO STOCKHOLDERS' AGREEMENT
This First Amendment to the Stockholders' Agreement (this "AMENDMENT")
is made and entered into as of May 9, 2003 by and among Carmike Cinemas, Inc., a
Delaware corporation (the "COMPANY"), and the other parties signatory hereto
(the "STOCKHOLDERS" and together with the Company, the "PARTIES"). Capitalized
terms not otherwise defined herein shall have the respective meanings given them
in the Stockholders' Agreement dated as of January 31, 2002 (the "STOCKHOLDERS'
AGREEMENT").
WITNESSETH:
WHEREAS, the Parties have executed a Stockholders' Agreement setting
forth certain rights and obligations regarding the Stock held by the
Stockholders, including an agreement to vote their Stock in favor of the
election of certain designees to the Board of Directors of the Company; and
WHEREAS, the Board of Directors of the Company has unanimously voted to
amend Section 3.1 of the Amended and Restated By-Laws of Carmike Cinemas, Inc.
(the "By-Laws") to increase the number of directors of the Company to twelve.
NOW, THEREFORE, in consideration of the promises and mutual agreements,
covenants and provisions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties hereto agree as follows:
1. Section 1.1(e). Section 1.1(e) of the Stockholders' Agreement
shall be amended to read in its entirety:
one (1) member of the Board of Directors, who shall be an Independent
Director, shall be designated from time to time in a writing delivered
to the Company and signed by the CEO and approved by a majority of the
members of the Board of Directors, provided that for purposes of the
CEO designating any Board Designee pursuant to this Agreement, Xx.
Xxxxxx X. Xxxxx shall be deemed an Independent Director; and
2. Section 1.2. Section 1.2 of the Stockholders' Agreement shall
be amended to read in its entirety:
Board Composition. Notwithstanding the foregoing, the Parties
understand and agree that the Board of Directors may consist of up to
twelve directors, ten of whom shall be designated as prescribed in
Section 1.1 and two of whom may be elected according to the By-Laws.
Three of the ten directors designated as prescribed in Section 1.1
shall be Independent Directors.
3. Governing Law. This Amendment will be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to that body of laws pertaining to conflict of laws.
4. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered will be deemed an
original, and all of which together shall constitute one and the same agreement.
5. Facsimile Signatures. This Amendment may be executed and
delivered by facsimile and upon such delivery the facsimile signature will be
deemed to have the same effect as if the original signature had been delivered
to the other party.
6. Limitation of Amendment. Except for the amendments expressly
set forth above, the Stockholders' Agreement shall remain unchanged and in full
force and effect.
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IN WITNESS WHEREOF, this Amendment has been executed as of the date and
year first above written.
THE COMPANY
CARMIKE CINEMAS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President -
Finance, Treasurer and Chief
Financial Officer
THE STOCKHOLDERS
XXXXXXX X. XXXXXXX, AS AN INDIVIDUAL
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
GS CAPITAL PARTNERS III, L.P.
By: GS Advisors III, L.L.C.,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
GS CAPITAL PARTNERS III OFFSHORE, L.P.
By: GS Advisors III, L.L.C.,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
XXXXXXX XXXXX & CO. VERWALTUNGS GMBH
By:
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Attorney-in-fact
XXXXXX XXXXXX XXXX 0000, X.X.
BY: Stone Street 1998, L.L.C.,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
STONE STREET FUND 1998, L.P.
BY: Xxxxx Xxxxxx 0000, X.X.X.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
THE JORDAN TRUST
By: /s/ Xxxx X. Xxxxxx, XX
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Name: Xxxx X. Xxxxxx, XX
Title: Trustee
TJT(B)
By: /s/ Xxxx X. Xxxxxx, XX
----------------------------------
Name: Xxxx X. Xxxxxx, XX
Title: Trustee
TJT(B) (BERMUDA) INVESTMENT COMPANY LTD.
By: /s/ Xxxx X. Xxxxxx, XX
----------------------------------
Name: Xxxx X. Xxxxxx, XX
Title: President
XXXXX X. XXXXXXXXX AND
XXXXXXX XXXXXXXXX, JT TEN
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Trustee
LEUCADIA INVESTORS, INC.
By: /s/ Xxxxxx X. Orlando
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Name: Xxxxxx X. Orlando
Title: Vice President
LEUCADIA NATIONAL CORPORATION
By: /s/ Xxxxxx X. Orlando
----------------------------------
Name: Xxxxxx X. Orlando
Title: Vice President
