EXHIBIT 4.5
November 17, 2003
SIGNING STOCKHOLDERS
Dear Sirs,
Reference is hereby made to the Carmike Cinemas, Inc. Stockholders'
Agreement, dated January 31, 2002, as amended, by and among, Carmike Cinemas,
Inc., a Delaware corporation (the "Company") and the other parties signatory
thereto (the "Signing Stockholders") (the "Stockholders' Agreement"), the
Registration Rights Agreement, dated January 31, 2002, by and among the Company
and the Signing Stockholders (the "Registration Rights Agreement") and the
proposed offering (the "Proposed Offering") of the Company's common stock, par
value $0.03 per share (the "Common Stock") pursuant to a Registration Statement
on Form S-1 (Commission File No. 333-90028) (the "Registration Statement").
In consideration of the agreements of the parties contained herein and
other good and valuable consideration, the receipt and sufficiency of which the
parties hereby acknowledge, the parties hereby agree as follows:
1. Waiver of Lock-up. The Company and each of the Signing Stockholders do
hereby agree to waive the provisions of Section 3 of the Stockholders' Agreement
for purposes of the shares of Common Stock held by the Signing Stockholders to
be sold in the Proposed Offering. This waiver is for the limited purpose of the
Proposed Offering and shall not constitute a waiver of the provisions of Section
3 of the Stockholders' Agreement for any other purpose or with respect to any
other Transfer (as defined in the Stockholders' Agreement) of Common Stock held
by any Signing Stockholder, nor shall it constitute a waiver of any other
provisions of the Stockholders' Agreement.
2. Waiver of Notice and Request. Each Signing Stockholder hereby agrees
to waive the requirement pursuant to Section 4(a) of the Registration Rights
Agreement that it receive the 20-day advance written notice from the Company of
the filing of the Registration Statement with respect to the Proposed Offering;
and the Company hereby waives the requirement that each Signing Stockholder give
to the Company the written request pursuant to Section 4(a) of the Registration
Rights Agreement with respect to the inclusion of shares of Common Stock held by
such Signing Stockholder in the Proposed Offering.
3. Priority of Registration. Notwithstanding anything contained in
Section 4(c) of the Registration Rights Agreement to the contrary, the Company
and each of the Signing Stockholders agree that, if the managing underwriter or
underwriters of the Proposed Offering advise the Company in writing that in its
or their opinion the number of shares of Common Stock proposed to be sold in the
Proposed Offering exceeds the number of shares that can be sold in the Proposed
Offering without an adverse effect on the Proposed Offering (such adverse effect
to include, but not be limited to, any adverse effect on the marketing of the
Proposed Offering or the price of the shares of Common Stock offered in the
Proposed Offering), the Company will include in the Proposed Offering only the
number of shares of Common Stock that, in the opinion of such underwriter or
underwriters, in its or their sole and absolute discretion, can be sold in the
Proposed Offering as follows: first, the 3,000,000 shares of Common Stock the
Company proposes to sell for its own account and then second, shares of Common
Stock proposed to be sold by the Signing Stockholders on a pro rata basis.
Notwithstanding the foregoing, Xxxxxxx X. Xxxxxxx shall be allowed to sell
131,948 shares in the Proposed Offering as a Signing Stockholder; provided that,
any cut-back in the participation of Xx. Xxxxxxx and the other Signing
Stockholders in the Proposed Offering shall be on a pro-rata basis. In the event
that the managing underwriter or underwriters of the Proposed Offering advise
the Company in writing that in its or their opinion the number of shares of
Common Stock that can be sold in the Proposed Offering without an adverse affect
on the Proposed Offering exceeds the 3,000,000 shares of Common Stock the
Company proposes to sell for its own account and the number of
shares of Common Stock proposed to be sold by the Signing Stockholders (an
"Upsizing"), the additional shares of Common Stock that can be sold shall be
included in the Proposed Offering as follows: first, additional shares of Common
Stock that the Signing Stockholders wish to sell, if any, on a pro rata basis
and then second, additional shares of Common Stock that the Company wishes to
sell, if any. For purposes of the Proposed Offering, Xxxx Xxxxxxx, Xx. shall be
deemed to be a Signing Stockholder. Notwithstanding the foregoing, in the event
of an Upsizing, if the Proposed Offering is priced on or prior to January 31,
2004, the Company may prevent the Signing Stockholders from selling additional
shares of Common Stock in the Proposed Offering as part of the Upsizing.
4. Authority. This letter agreement has been duly executed and delivered
by the Company and each of the Signing Stockholders and constitutes the legal,
valid and binding obligation of the Company and each of the Signing
Stockholders, enforceable against each of them in accordance with its terms.
5. Counterparts. This letter agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
6. Governing Law. This letter agreement shall be governed by and
construed in accordance with the laws of the state of Delaware and without
reference to principles of conflicts of laws or choice of laws.
7. Amendment. This letter agreement may only be amended or modified by
written agreement of each of the parties hereto.
If the foregoing accurately reflects our understanding, please sign below
to evidence your acceptance and agreement with the foregoing and return one copy
of this letter to the undersigned, whereupon it shall become a binding
agreement.
Carmike Cinemas, Inc.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice
President -- Finance,
Treasurer and Chief Financial
Officer
Agreed and accepted as of the date first written above:
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: /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
------------------------------------
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
------------------------------------
Name: Xxxxxx X. Orlando
Title: Vice President
LEUCADIA NATIONAL CORPORATION
By: /s/ Xxxxxx X. Orlando
------------------------------------
Name: Xxxxxx X. Orlando
Title: Vice President
