|
|
|
|
|
|
|
|
Name of Beneficial Owner
|
|
Beneficial
Ownership
|
|
Percent of
Class(1)
|
|
S. David Passman III(2)
|
|
|
616,406
|
|
|
2.49
|
%
|
Richard B. Hare(3)
|
|
|
191,810
|
|
|
*
|
|
Fred W. Van Noy(4)
|
|
|
185,000
|
|
|
*
|
|
Daniel E. Ellis(5)
|
|
|
83,250
|
|
|
*
|
|
A. Dale Mayo(6)
|
|
|
88,082
|
|
|
*
|
|
Jeffrey W. Berkman(7)
|
|
|
26,632
|
|
|
*
|
|
Mark R. Bell(8)
|
|
|
19,061
|
|
|
*
|
|
Sean T. Erwin(9)
|
|
|
13,985
|
|
|
*
|
|
James A. Fleming(10)
|
|
|
28,732
|
|
|
*
|
|
Roland C. Smith(11)
|
|
|
47,540
|
|
|
*
|
|
Patricia A. Wilson(12)
|
|
|
31,482
|
|
|
*
|
|
All directors and executive officers as a group (14 persons)(13)
|
|
|
1,386,133
|
|
|
5.56
|
%
|
-
*
-
Indicates
less than 1%.
-
(1)
-
Percent
of class is with respect to 24,388,587 outstanding shares of Carmike's common stock as of October 5, 2016. In computing the percentage of
shares beneficially owned by
162
Table of Contents
each
person, Carmike includes any shares of common stock that could be acquired within 60 days of October 5, 2016 by the exercise of options or the vesting of stock awards. These shares,
however, are not counted in computing the percentage of ownership of any other person.
-
(2)
-
Includes
options to purchase 340,000 shares, vested or vesting within 60 days of October 5, 2016. Also includes 110,678 non-voting units that
do not provide the holder thereof the right to receive or vote Carmike common stock within 60 days of October 5, 2016.
-
(3)
-
Includes
options to purchase 121,666 shares, vested or vesting within 60 days of October 5, 2016. Also includes 29,445 non-voting units that
do not provide the holder thereof the right to receive or vote Carmike common stock within 60 days of October 5, 2016.
-
(4)
-
Includes
options to purchase 56,000 shares, vested or vesting within 60 days of October 5, 2016. Also includes 39,736 non-voting units that do
not provide the holder thereof the right to receive or vote Carmike common stock within 60 days of October 5, 2016.
-
(5)
-
Includes
options to purchase 15,000 shares, vested or vesting within 60 days of October 5, 2016. Also includes 21,531 non-voting units that do
not provide the holder thereof the right to receive or vote Carmike common stock within 60 days of October 5, 2016.
-
(6)
-
Includes
12,104 non-voting units that do not provide the holder thereof the right to receive or vote Carmike common stock within 60 days of
October 5, 2016.
-
(7)
-
Includes
options to purchase 5,000 shares, vested or vesting within 60 days of October 5, 2016. Also includes 2,673 non-voting units that do
not provide the holder thereof the right to receive or vote Carmike common stock within 60 days of October 5, 2016.
-
(8)
-
Includes
2,673 non-voting units that do not provide the holder thereof the right to receive or vote Carmike common stock within 60 days of
October 5, 2016.
-
(9)
-
Includes
2,673 non-voting units that do not provide the holder thereof the right to receive or vote Carmike common stock within 60 days of
October 5, 2016.
-
(10)
-
Includes
2,673 non-voting units that do not provide the holder thereof the right to receive or vote Carmike common stock within 60 days of
October 5, 2016.
-
(11)
-
Includes
3,676 non-voting units that do not provide the holder thereof the right to receive or vote Carmike common stock within 60 days of
October 5, 2016.
-
(12)
-
Includes
2,673 non-voting units that do not provide the holder thereof the right to receive or vote Carmike common stock within 60 days of
October 5, 2016.
-
(13)
-
Includes
options to purchase 559,000 shares, vested or vesting within 60 days of October 5, 2016. Also includes 242,873 non-voting units that
do not provide the holder thereof the right to receive or vote Carmike common stock within 60 days of October 5, 2016.
163
Table of Contents
LEGAL MATTERS
The validity of the shares of AMC Class A common stock to be issued pursuant to the merger will be passed upon by Husch
Blackwell LLP.
EXPERTS
AMC
The consolidated financial statements of AMC Entertainment Holdings, Inc. as of December 31, 2015 and 2014, and for each
of the years in the three-year period ended December 31, 2015, and management's assessment of the effectiveness of internal control over financial reporting as of December 31, 2015 have
been incorporated by reference herein and in this proxy statement/prospectus and elsewhere in the registration statement in reliance upon the reports of KPMG LLP, independent registered public
accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The audit report covering the December 31, 2015 consolidated
financial statements refers to AMC Entertainment Holdings, Inc.'s adoption of the Financial Accounting Standards Boards' Accounting Standards Update No. 2015-17,
Balance Sheet Classification of Deferred
Taxes
.
The
financial statements of National CineMedia, LLC, incorporated in this proxy statement/prospectus by reference from the AMC Entertainment Holdings, Inc. Annual Report on Form
10-K have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such financial
statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
The
audited financial statements of Digital Cinema Implementation Partners, LLC incorporated by reference in this proxy statement/prospectus and elsewhere in the registration
statement have been so incorporated in reliance upon the report of CohnReznick LLP, independent auditors, given upon the authority of said firm as experts in accounting and auditing.
Carmike
The
consolidated financial statements, and the related financial statement schedule, of Carmike Cinemas, Inc. and subsidiaries incorporated in this proxy statement/prospectus by
reference from the Carmike Cinemas, Inc. Annual Report on Form 10-K, and the effectiveness of Carmike Cinemas, Inc. and subsidiaries' internal control over financial reporting
have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference. Such consolidated
financial statements and financial statement schedule have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
The
audited consolidated financial statements of SV Holdco, LLC as of December 31, 2015 and 2014, and for each of the years in the three-year period ended
December 31, 2015, incorporated by reference in this proxy statement/prospectus and elsewhere in the registration statement have been so incorporated in reliance upon the report of
KPMG LLP, independent auditors, upon the authority of said firm as experts in accounting and auditing in giving said reports.
WHERE STOCKHOLDERS CAN FIND MORE INFORMATION
AMC has filed a registration statement on Form S-4 with the SEC under the Securities Act to register the AMC Class A
common stock to be issued in the merger. This proxy statement/prospectus constitutes the prospectus of AMC filed as part of the registration statement. This proxy statement/prospectus does not contain
all of the information that AMC stockholders and Carmike stockholders
164
Table of Contents
can
find in the registration statement or the exhibits to the registration statement because certain parts of the registration statement are omitted in accordance with the rules and regulations of the
SEC. The registration statement and its exhibits contain important information about AMC and Carmike and
their respective businesses, financial conditions and results of operations and are available for inspection and copying as indicated below.
AMC
and Carmike file annual, quarterly and current reports, proxy statements/prospectuses and other information with the SEC. Additional information related to AMC and Odeon/UCI,
including financial statements or other information, may be included in future AMC filings with the SEC. The SEC allows AMC and Carmike to incorporate by reference information into this proxy
statement/prospectus, which means that AMC and Carmike can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part
of this proxy statement/prospectus, except for any information that is superseded by information that is included directly in this proxy statement/prospectus. Any later information filed by AMC or
Carmike with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding any information furnished and not filed with the SEC) up until the date of the Carmike special
meeting will be deemed to be incorporated by reference into this proxy statement/prospectus and will automatically update and supersede this information. Therefore, before you vote to approve the
merger proposal, you should always check for reports AMC and Carmike may have filed with the SEC after the date of this proxy statement/prospectus.
This
proxy statement/prospectus incorporates by reference the documents listed below that AMC and Carmike have previously filed with the SEC, excluding any information in any Current
Report on Form 8-K furnished pursuant to Item 2.02 or 7.01 or the exhibits related thereto under Item 9.01 of Form 8-K (unless otherwise indicated), which is not deemed
filed under the Exchange Act.
AMC's Filings (SEC File No. 001-33892)
-
-
Annual Report on Form 10-K for the year ended December 31, 2015;
-
-
Quarterly Report on Form 10-Q for the quarters ended March 31, 2016, June 30, 2016; and
-
-
Current Reports on Form 8-K filed with the SEC on: January 12, 2016, February 9, 2016, February 17, 2016,
February 25, 2016, March 4, 2016 (the 2nd filing on such date), March 31, 2016, April 27, 2016 (both filings on such date), July 13, 2016, July 25,
2016 (both filings on such date), and July 26, 2016.
-
-
The description of AMC's common stock contained in AMC's Registration Statement on Form 8-A filed with the SEC on
December 17, 2013, pursuant to the Exchange Act, and any amendment or report filed for the purpose of further updating such description.
You
may request a copy of these filings at no cost, by writing or telephoning AMC at the following address:
AMC
Entertainment Holdings, Inc.
One AMC Way
11500 Ash Street
Leawood, Kansas 66211
Attention: Investor Relations
Telephone: (913) 213-2000
AMC
also makes available free of charge on its website at www.amctheatres.com its Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on
Form 8-K, and any amendments to those reports, as soon as reasonably practicable after it electronically files such material
165
Table of Contents
with,
or furnishes it to, the SEC. Information contained on AMC's website is not part of this proxy statement/prospectus.
Carmike's Filings (SEC File No. 000-14993)
-
-
Annual Report on Form 10-K for the year ended December 31, 2015;
-
-
Quarterly Report on Form 10-Q for the quarters ended March 31, 2016 and June 30, 2016; and
-
-
Current Reports on Form 8-K filed with the SEC on March 4, 2016, March 16, 2016 and March 29, 2016,
May 2, 2016, May 26, 2016, May 27, 2016, June 15, 2016, June 16, 2016, June 20, 2016, June 30, 2016, July 15, 2016, July 25, 2016 and
August 1, 2016.
-
-
The description of Carmike's common stock contained in Carmike's Registration Statement on Form 8-A filed with the SEC, on
January 31, 2002, pursuant to the Exchange Act, and any amendment or report filed for the purpose of updating such description.
You
may request a copy of these filings at no cost, by writing or telephoning Carmike at the following address:
Carmike
Cinemas, Inc.
1301 First Avenue
Columbus, Georgia 31901
Telephone: (706) 576-3400
Carmike
also makes available free of charge on its website at www.carmikeinvestors.com its Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports
on Form 8-K, and any amendments to those reports, as soon as reasonably practicable after it electronically files such material with, or furnishes it to, the SEC. Information contained on
Carmike's website is not part of this proxy statement/prospectus.
The
SEC also maintains an internet website (www.sec.gov) that contains the reports, proxy statements and other information filed by AMC and Carmike electronically with the SEC. You may
also read and copy any document filed with the SEC at its public reference room at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the operation of the public reference room.
The
information concerning AMC contained in this proxy statement/prospectus or incorporated by reference has been provided by AMC, and the information concerning Carmike contained in
this proxy statement/prospectus or incorporated by reference has been provided by Carmike.
In order to receive timely delivery of requested documents in advance of the Carmike special meeting, your request should be received no later than
November 8, 2016. If you request any documents, AMC or Carmike will mail them to you by first class mail, or another equally prompt means, within one business day after receipt of your
request.
Neither
AMC nor Carmike has authorized anyone to give any information or make any representation about the merger, AMC or Carmike that is different from, or in addition to, that
contained in this proxy statement/prospectus or in any of the materials that have been incorporated by reference. Therefore, if any one distributes this type of information, you should not rely on it.
If you are in a jurisdiction where offers to exchange or sell, or solicitations of offers to exchange or purchase, the securities offered by this proxy statement/prospectus or the solicitation of
proxies is unlawful, or you are a person to whom it is unlawful to direct these types or activities, then the offer presented in this proxy statement/prospectus does not extend to you. The information
contained in this proxy statement/prospectus speaks only as of its date, or in the case of information in a document incorporated by reference, as of the date of such document, unless the information
specifically indicates that another date applies.
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Table of Contents
ANNEX A
EXECUTION VERSION
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
dated
as of
July 24,
2016
Among
Carmike Cinemas, Inc.,
AMC Entertainment Holdings, Inc.
and
Congress Merger Subsidiary, Inc.
Table of Contents
TABLE OF CONTENTS
A-i
Table of Contents
A-ii
Table of Contents
A-iii
Table of Contents
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
This AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of March 3, 2016 and amended and restated as of July 24,
2016 (this "
Agreement
"), among Carmike Cinemas, Inc., a Delaware corporation (the "
Company
"), AMC
Entertainment Holdings, Inc., a Delaware corporation ("
Parent
"), and Congress Merger Subsidiary, Inc., a Delaware corporation and an
indirect wholly-owned subsidiary of Parent ("
Merger Subsidiary
"). The Company, Parent and Merger Subsidiary are sometimes hereinafter referred to
individually as a "
Party
" and collectively as the "
Parties
".
W I T N E S S E T H :
WHEREAS, Parent, Merger Subsidiary and the Company entered into an Agreement and Plan of Merger dated as of March 3, 2016 (the
"
Original Merger Agreement
"), and they now desire to amend and restate the Original Merger Agreement in the form of this Amended and Restated Agreement
and Plan of Merger (this "
Amended and Restated Merger Agreement
") (it being understood and agreed that all references herein to "the date hereof", "the
date of this Agreement" or other similar terms refer to March 3, 2016 and all references to the date of this Amended and Restated Merger Agreement refer to July 24, 2016);
WHEREAS,
the respective Boards of Directors of the Company, Parent and Merger Subsidiary have approved the execution of this Agreement and the transactions contemplated hereby and
declared it advisable that the respective stockholders of the Company and Merger Subsidiary approve and adopt this Agreement pursuant to which, among other things, Parent will acquire the Company by
means of a merger of Merger Subsidiary with and into the Company on the terms and subject to the conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein, the Parties, intending to be legally bound, hereby agree
that the Original Merger Agreement be and is hereby amended and restated in its entirety as follows:
ARTICLE 1
DEFINITIONS
Section 1.01.
Definitions
.
(a) As
used herein, the following terms have the following meanings:
"
Acceptable Confidentiality Agreement
" means a confidentiality agreement (i) in effect on the date hereof, or (ii) that
contains provisions that are substantially comparable in the aggregate to those
contained in the Confidentiality Agreement;
provided
that such confidentiality agreement may contain a less restrictive or no standstill restriction
and, if entered into after the date hereof, shall not restrict the Company or its Representatives from complying with its disclosure obligations under
Section 6.04
of this Agreement.
"
Acquisition Proposal
" means, other than with respect to the transactions contemplated by this Agreement or any other transaction
involving Parent and the Company, any offer, proposal or indication of interest relating to (i) any acquisition or purchase, direct or indirect, of 20% or more of the consolidated assets of the
Company and its Subsidiaries, assets of the Company and its Subsidiaries representing 20% or more of the consolidated net revenues or consolidated net income of the Company and its Subsidiaries, or
20% or more of any class of equity or voting securities of the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 20% or more of the consolidated assets of
the Company and its Subsidiaries, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in a Third Party's beneficially
A-1
Table of Contents
owning
20% or more of any class of equity or voting securities of the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 20% or more of the consolidated
assets of the Company and its Subsidiaries, or (iii) a merger, consolidation, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction
involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 20% or more of the consolidated assets of the Company and its Subsidiaries.
"
Affiliate
" means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control
with such Person;
provided
,
however
, that with respect to Parent, Affiliate shall not include Parent's
controlling stockholder or any of its Affiliates (other than Parent or any of its Controlled Affiliates).
"
Antitrust Action
" means (i) any divestiture, license, hold separate (including by trust or otherwise) of any businesses or assets
of any Party or its respective Affiliates, or (ii) any other commitment of any Party or any of its respective Affiliates to take any action that limits any freedom of action with respect to
such Party or its Affiliates' ability to retain, operate, manage, govern or influence any of their respective businesses or assets.
"
Applicable Law
" means, with respect to any Person, any federal, state, local or non-U.S. law (statutory, common or otherwise),
constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar legal requirement enacted, adopted or promulgated by a Governmental
Authority that is binding upon or applicable to such Person, as amended, unless expressly specified otherwise.
"Business Day
" means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or
required by Applicable Law to close.
"
Circumstance
" means any event, change, occurrence, condition, development, state of facts, or circumstance.
"
Code
" means the Internal Revenue Code of 1986, as amended.
"
Company 10-K
" means the Company's annual report on Form 10-K for the fiscal year ended December 31, 2015.
"
Company Balance Sheet
" means the consolidated balance sheet of the Company as of September 30, 2015 and the footnotes thereto set
forth in the Company's quarterly report on Form 10-Q for the fiscal quarter ended September 30, 2015.
"
Company Balance Sheet Date
" means September 30, 2015.
"
Company Disclosure Letter
" means the disclosure letter, dated the date hereof, regarding this Agreement that has been provided by the
Company to Parent and Merger Subsidiary.
"
Company Employee
" means, at any specified time, a current or former employee of the Company or any of its Subsidiaries.
"
Company Employee Plan
" means any (i) "employee benefit plan" as defined in Section 3(3) of ERISA, (ii) employment,
severance, change in control, transaction bonus, retention or other similar agreement or plan, or (iii) other plan, agreement or arrangement providing for compensation, bonuses, equity or
equity-based compensation or other forms of incentive or deferred compensation, fringe benefits, vacation or paid time off benefits perquisites, disability or sick leave benefits, supplemental
unemployment benefits or post-employment or retirement benefits, in each case, (A) for the benefit of any Company Employee or current or former member of the Company's Board of Directors and
(B) (1) that is sponsored, maintained, administered, contributed to or entered into by the Company or any of its ERISA Affiliates or (2) with respect to which the Company might have any
liability.
A-2
Table of Contents
"
Company Material Adverse Effect
" means a material adverse effect on (i) the financial condition, business, assets, liabilities or
results of operations of the Company and its Subsidiaries, taken as a whole, or (ii) the ability of the Company and its Subsidiaries to consummate the transactions contemplated by this
Agreement, in each case, excluding any effect resulting from any Circumstance involving, resulting from, relating to or with respect to (A) changes in GAAP or any other accounting requirements
applicable to the industry in which the Company or any of its Subsidiaries operates, (B) financial, securities, debt or financing markets or general economic or political conditions,
(C) the industry in which the Company or any of its Subsidiaries operate, (D) changes in Applicable Law of general applicability to companies in the industry in which the Company or any
of its Subsidiaries operate, or any official interpretation thereof by a Governmental Authority, (E) acts or declarations of war or other armed hostilities, sabotage, terrorism (including
cyber-terrorism or cyber-attacks) or natural disasters or weather-related events or conditions, (F) the execution and delivery of this Agreement or the announcement or consummation of the
transactions contemplated by this Agreement or the identity of, or any facts or circumstances relating to, Parent, including the impact thereof on the relationships, contractual or otherwise, of the
Company or any of its Subsidiaries with employees, customers, suppliers or other Third Parties by this Agreement, (G) any failure by the Company or any of its Subsidiaries to meet any internal
or published estimates, budgets, projections, forecasts or predictions of financial performance for any period, including as a result of any failure of the Company or any of its Subsidiaries to
realize the anticipated benefits of any business-related launch, initiative or roll-out (it being agreed that the underlying cause of any such failure described in this clause (G), unless
expressly excluded by another clause of this definition, may be considered in determining whether or not a Company Material Adverse Effect has occurred), (H) any action taken (or omitted to be
taken) at the written request, or with the written consent, of Parent or Merger Subsidiary, (I) the price and/or trading volume of the Company Stock on NASDAQ or any other market in which such
securities are quoted for purchase and sale, (J) any action taken by Parent, the Company, any of their respective Subsidiaries or Affiliates, or any Wanda Group Party that is required,
contemplated or permitted pursuant to this Agreement (including pursuant to
Section 8.01
), including any actions required under this Agreement to
obtain any approval or authorization under antitrust, competition, trade regulation, or other Applicable Laws for the consummation of the Merger, or (K) any litigation, action, suit, proceeding
or investigation made or brought by any of the stockholders of the Company (on their own behalf or on behalf of the Company) that assert allegations of a breach of fiduciary duty relating to this
Agreement, violations of securities laws in connection with the Company Proxy Statement/Prospectus or otherwise arising out of any of the transactions contemplated by this Agreement;
provided
, in the
case of clauses (A), (B), (C), (D) and (E), such Circumstances may be taken into account in determining whether or not
there has been a Company Material Adverse Effect to the extent such Circumstance has a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, as compared to
other participants in the industry in which the Company and its Subsidiaries operate.
"
Company Stock
" means the common stock, $0.03 par value, of the Company.
"
Company Stock Plans
" means the Carmike 2004 Incentive Stock Plan and the Carmike 2014 Incentive Stock Plan.
"Company Stockholder Meeting"
means the special meeting of the stockholders of the Company originally convened on June 30, 2016.
"Compliant"
means, with respect to the Required Financial Information, that (i) such Required Financial Information does not
contain any untrue statement of a material fact or omit to state any material fact necessary in order to make such Required Financial Information, taken as a whole, in light of the circumstances under
which the statements contained in the Required Financial Information are made, not materially misleading, (ii) such Required Financial Information is, and remains throughout the Marketing
Period, compliant in all material respects with all applicable requirements of
A-3
Table of Contents
Regulation S-X
and Regulation S-K under the 1933 Act for offerings of debt securities on a registration statement on Form S-3 and (iii) the Company's auditors have not
withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information.
"
Confidentiality Agreement
" means the confidentiality agreement, dated October 23, 2014, among the Company, Parent, Wanda America
Investment Holding Co. Ltd. and Dalian Wanda Group Co., Ltd., as amended January 20, 2016.
"
Control" or "Controlled"
"means, when used with respect to any specified Person, the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
"
Debt Financing Documents
" means the definitive credit documentation required to be executed and delivered as a condition to the
consummation of the Financing to be provided pursuant to the Debt Commitment Letters, including: all (i) credit agreements, loan documents, purchase agreements, underwriting agreements,
indentures, debentures, notes, intercreditor agreements and security documents pursuant to which the Financing will be governed or otherwise contemplated by the Debt Commitment Letters,
(ii) officer, secretary, solvency and perfection certificates, legal opinions, and resolutions contemplated by the Debt Commitment Letters, and (iii) agreements, documents or
certificates that facilitate the creation of Liens securing the Financing as required by the Debt Commitment Letters.
"
Delaware Law
" means the General Corporation Law of the State of Delaware.
"
Environment
" means the air (including ambient or indoor air), soil, sediments, water (including surface waters, groundwater, streams, and
water in drains), land (including surface or subsurface), plant or animal life, or natural resources.
"
Environmental Laws
" means Applicable Law, or any agreement with any Governmental Authority, pertaining to, regulating, relating to, or
imposing liability, standards or obligations of conduct concerning (i) pollution or protection of human health or the Environment or (ii) generation, handling, treatment, storage,
disposal, transportation, manufacture, processing, distribution, use, threatened Release, or Release of Hazardous Substances.
"
Environmental Permits
" means all permits, licenses, franchises, certificates, approvals, grants, registrations, exemptions, exceptions,
variances, and other similar authorizations of Governmental Authorities relating to or required by an Environmental Law.
"
ERISA
" means the Employee Retirement Income Security Act of 1974.
"
ERISA Affiliate
" of any entity means any other entity that, together with the first entity, would be treated as a single employer under
Section 414 of the Code.
"
Executive Officer
" has the meaning specified in Rule 3b-7 under the 1934 Act.
"
Existing Credit Facility
" means that certain Credit Agreement, dated as of April 30, 2013, by and among the Parent, the lenders
and issuers thereto, Citicorp North America, Inc., as agent, and the other agents and arrangers party thereto, as amended by that certain First Amendment to Credit Agreement, dated as of
December 11, 2015, and all Loan Documents (as defined therein) related thereto.
"
Financing Sources
" means the financial institutions party to the Debt Commitment Letters, including, to the extent permitted under
Section 8.03(a)
, the parties to
any joinder agreements or amendments entered into in connection therewith, and the former, current and future
equity holders, controlling persons, directors, officers, employees, agents, Subsidiaries, members, managers, general or limited partners or assignees of such lenders (and alternative debt financing
sources) and/or their respective Subsidiaries, successors and assigns.
A-4
Table of Contents
"
GAAP
" means generally accepted accounting principles in the United States.
"
Governmental Authority
" means any transnational, domestic or foreign federal, state or local governmental, regulatory or administrative
authority, department, court, agency or official, including any political subdivision thereof.
"
Hazardous Substance
" means any substance, pollutant, contaminant, material, waste, or chemical that is (i) regulated pursuant to
any Environmental Law, (ii) defined or treated under any Environmental Law as a "pollutant," "contaminant," "hazardous constituent," "solid waste," "toxic substance," "special waste," "toxic
waste," "hazardous substance," "hazardous waste," "hazardous material," or (iii) asbestos or asbestos containing materials, lead, polychlorinated biphenyls, petroleum or petroleum products,
urea formaldehyde foam insulation, and radon gas.
"
HSR Act
" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
"
Intellectual Property
" means all (i) trademarks, service marks, trade names, domain names, know-how (including any registrations
or applications for registration of any of the foregoing) or any other similar type of proprietary brand names, logos, corporate names, certification marks, trade dress, and other indications of
origin, the goodwill associated with the foregoing and registrations in any jurisdiction of, and applications in any jurisdiction to register, the foregoing, including any extension, modification or
renewal of any such registration or application, (ii) inventions and discoveries, whether patentable or not, in any jurisdiction; patents, applications for patents (including, without
limitation, divisions, continuations, continuations-in-part and renewal applications), and any renewals, reexaminations, extensions or reissues thereof, in any jurisdiction, (iii) copyrightable
works of authorship, mask works and any and all copyright rights, whether registered or not (including such rights in software); and registrations or applications for registration of copyrights in any
jurisdiction, and any renewals or extensions thereof, (iv) Trade Secrets, (v) moral rights, database rights, shop rights, design rights, industrial property rights, publicity rights and
privacy rights and (vi) any similar proprietary rights.
"
Intervening Event
" means any event, change, effect, development, state of facts, condition, circumstance or occurrence that was not known
to the Board of Directors of the Company on the date of this Agreement (or, if known, the consequences of which were not known to the Board of Directors of the Company as of the date of this
Agreement), which event, change, effect, development, state of facts, condition, circumstance or occurrence (or the consequences thereof) becomes known to the Board of Directors of the Company before
receipt of the Company Stockholder Approval;
provided
that
in no event will the receipt, existence of, or terms of any Acquisition Proposal, or any inquiry relating thereto, constitute an Intervening Event.
"
IT Assets
" means computers, computer software, firmware (including software delivered on a cloud computing or software as a service
basis), middleware, servers, workstations, routers, hubs, switches, circuits, networks, data communications lines, and all other information technology infrastructure and equipment, and all associated
Trade Secrets documentation, owned, licensed or leased by the Company or its Subsidiaries for information technology operations (excluding any public networks and any and all cinema video projection
or display systems, cinema sound systems and cinema motion seating systems).
"
knowledge
" means (i) with respect to the Company, the actual knowledge after reasonable inquiry of the individuals listed on
Section 1.01(a)
of the Company
Disclosure Letter and (ii) with respect to Parent, the actual knowledge after reasonable inquiry of the
individuals listed on
Section 1.01(a)
of the Parent Disclosure Letter.
"
Lien
" means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest, encumbrance or other similar
adverse claim in respect of such property or asset.
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Table of Contents
"
Marketing Period
" means the first period of (x) prior to the date of delivery of the Required Financial Information with respect
to the fiscal quarter ending September 30, 2016, at least fifteen (15) consecutive Business Days after the date of this Agreement or (y) on or after such date of delivery, at
least eight (8) consecutive Business Days after the date of this Agreement, (i) commencing on the first Business Day after Parent has received the Required Financial Information in
Compliant form; provided, that if the Company shall in good faith reasonably believe it has provided the Required Financial Information the Company may deliver to Parent a written notice to that
effect, in which case the Company shall be deemed to have complied with clause (i) above unless Parent in good faith reasonably believes the Company has not completed the delivery of the
Required Financial Information and, within three (3) Business Days after the delivery of such notice by the Company, delivers a written notice to the Company to that effect (stating with
specificity which Required Financial Information that the Company has not delivered), and (ii) throughout which nothing has occurred and no condition exists that has caused the conditions set
forth in
Section 9.02(a)
or
(b)
(other than those conditions that by their terms are to be
satisfied at the Closing but subject to the satisfaction or waiver of such conditions at Closing) to fail to be satisfied, in each case, assuming the Closing were to be scheduled for any time during
such period; provided, however, that (i) for purposes of calculating such period, November 24, 2016 and November 25, 2016 shall be disregarded as Business Days, (ii) to the
extent such period has not been completed on or prior to August 23, 2016, such period shall not be deemed to have commenced prior to September 5, 2016 and (iii) to the extent such
period has not been completed on or prior to December 20, 2016, such period shall not be deemed to have commenced prior to January 2, 2017 and the Marketing Period shall end on the date
the Financing is consummated if such date is
prior to the end of an applicable period. Notwithstanding the foregoing, the "Marketing Period" shall not commence and shall be deemed not to have commenced if, during or prior to the completion of
such period (a) Deloitte & Touche LLP shall have withdrawn its audit opinion with respect to any audited financial statements in the Company Financial Statements, in which case
the Marketing Period shall not be able to commence until a new audit opinion is issued with respect to the audited financial statements in the Company Financial Statements for the applicable periods
by Deloitte & Touche LLP or another independent public accounting firm reasonably acceptable to Parent, (b) the Company indicates its intent to restate any financial statements or
other financial information included in the Required Financial Information, in which case the Marketing Period shall be deemed not to commence unless and until such restatement has been completed and
the applicable Required Financial Information has been amended or the Company has provided written notice to Parent or otherwise publicly announced that it has concluded that no restatement shall be
required, and the requirements in clauses (a) and (b) above would be satisfied throughout and on the last day of such period or (c) the Required Financial Information is not
Compliant throughout and on the last day of such period (it being understood, for the avoidance of doubt, that if at any time during the Marketing Period the Required Financial Information provided on
the first day of the Marketing Period ceases to be Compliant, then the Marketing Period shall be deemed not to have commenced).
"
MOFCOM
" means the Ministry of Commerce of the PRC as well as its local counterpart in Dalian, Liaoning province of the PRC.
"
1933 Act
" means the Securities Act of 1933.
"
1934 Act
" means the Securities Exchange Act of 1934.
"
NASDAQ
" means the NASDAQ Global Market.
"
NDRC
" means the National Development and Reform Commission of the PRC as well as its local counterpart in Dalian, Liaoning province of
the PRC.
"
NYSE
" means the New York Stock Exchange.
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"
Parent Balance Sheet"
means the consolidated balance sheet of Parent as of March 31, 2016 and the footnotes thereto set forth in
Parent's quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2016.
"
Parent Balance Sheet Date"
means March 31, 2016.
"
Parent Class A Common Stock
" means the class A common stock, $0.01 par value, of Parent.
"
Parent Class B Common Stock
" means the class B common stock, $0.01 par value, of Parent.
"
Parent Disclosure Letter
" means the disclosure letter, dated the date of this Amended and Restated Merger Agreement, regarding this
Agreement that has been provided by Parent to the Company.
"
Parent Employee
" means, a current employee of Parent or any of its Subsidiaries.
"
Parent Employee Plan
" means any (i) "employee benefit plan" as defined in Section 3(3) of ERISA, (ii) employment,
severance, change in control, transaction bonus, retention or other similar agreement or plan, or (iii) other plan, agreement or arrangement providing for compensation, bonuses, equity or
equity-based compensation or other forms of incentive or deferred compensation, fringe benefits, vacation or paid time off benefits perquisites, disability or sick leave benefits, supplemental
unemployment benefits or post-employment or retirement benefits, in each case, (A) for the benefit of any Parent Employee and (B)(1) that is sponsored, maintained, administered, contributed to
or entered into by Parent or any of its ERISA Affiliates or (2) with respect to which Parent might have any liability.
"
Parent Material Adverse Effect
" means a material adverse effect on (i) the financial condition, business, assets, liabilities or
results of operations of Parent and its Subsidiaries, taken as a whole, or (ii) the ability of Parent and its Subsidiaries to consummate the transactions contemplated by this Agreement, in each
case, excluding any effect resulting from any Circumstance involving, resulting from, relating to or with respect to (A) changes in GAAP or any other accounting requirements applicable to the
industry in which Parent or any of its Subsidiaries operates, (B) financial, securities, debt or financing markets or general economic or political conditions, (C) the industry in which
Parent or any of its Subsidiaries operate, (D) changes in Applicable Law of general applicability to companies in the industry in which Parent or any of its Subsidiaries operate, or any
official interpretation thereof by a Governmental Authority, (E) acts or declarations of war or other armed hostilities, sabotage, terrorism (including cyber-terrorism or cyber-attacks) or
natural disasters or weather-related events or conditions, (F) the execution and delivery of this Agreement or the announcement or consummation of the transactions contemplated by this
Agreement or the identity of, or any facts or circumstances relating to, the Company, including the impact thereof on the relationships, contractual or otherwise, of Parent or any of its Subsidiaries
with employees, customers, suppliers or other Third Parties by this
Agreement, (G) any failure by Parent or any of its Subsidiaries to meet any internal or published estimates, budgets, projections, forecasts or predictions of financial performance for any
period, including as a result of any failure of Parent or any of its Subsidiaries to realize the anticipated benefits of any business-related launch, initiative or roll-out, (H) any action
taken (or omitted to be taken) at the written request, or with the written consent, of the Company, (I) the price and/or trading volume of the Parent Class A Common Stock on the NYSE or
any other market in which such securities are quoted for purchase and sale, (J) any action taken by Parent, the Company, any of their respective Subsidiaries or Affiliates, or any Wanda Group
Party that is required, contemplated or permitted pursuant to this Agreement (including pursuant to
Section 8.01
), including any actions required
under this Agreement to obtain any approval or authorization under antitrust, competition, trade regulation, or other Applicable Laws for the consummation of the Merger, or (K) any litigation,
action, suit, proceeding or investigation made or brought by any of the stockholders of Parent (on their own behalf or on behalf of Parent) that assert allegations of a breach of fiduciary duty
relating to this Agreement
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or
otherwise arising out of any of the transactions contemplated by this Agreement; provided, in the case of clauses (B), (C), (D) and (E), such Circumstances may be taken into account
in determining whether or not there has been a Parent Material Adverse Effect to the extent such Circumstance has a materially disproportionate adverse effect on Parent and its Subsidiaries, taken as
a whole, as compared to other participants in the industry in which Parent and its Subsidiaries operate.
"
Parent 10-K"
means Parent's annual report on Form 10-K for the fiscal year ended December 31, 2015.
"
Parent SEC Documents
" means all reports, schedules, forms, statements, prospectuses, registration statements and other documents required
to be filed or furnished by Parent to the SEC since January 1, 2014, together with any exhibits and schedules thereto and other information incorporated therein.
"
Parent Trading Price
" means the volume weighted average price per share (calculated to the nearest one-hundredth of one cent) of Parent
Class A Common Stock on the NYSE, for the consecutive period of five trading days beginning on the eighth trading day immediately preceding the Closing Date and concluding at the close of
trading on the third trading day immediately preceding the Closing Date, as calculated by Bloomberg Financial LP under the function "VWAP".
"
Permitted Lien
" means (i) any Lien for Taxes or other governmental charges or assessments not yet delinquent or which are being
contested in good faith by appropriate proceedings and for which adequate reserves have been established in the applicable financial statements in accordance with GAAP, (ii) mechanics',
materialmen's, carriers', workers', landlords', repairmen's, warehousemen's, construction and other similar Liens arising or incurred in the ordinary course of business consistent with past practice
or with respect to liabilities that are not yet due and payable or, if due, are not
delinquent or are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in the applicable financial statements in accordance with GAAP,
(iii) Liens imposed or promulgated by Applicable Law or any Governmental Authority with respect to real property, including zoning, building or similar restrictions, excluding any Liens created
by or on account of the violation of any of the foregoing, (iv) pledges or deposits in connection with workers' compensation, unemployment insurance, and other social security legislation,
(v) utility easements, minor encroachments, rights of way, imperfections in title, charges, easements, rights of way (whether recorded or unrecorded), restrictions, declarations, covenants,
conditions, defects and other Liens that do not individually or in the aggregate materially interfere with the present occupancy or use of the respective Company Owned Real Property or Leased Real
Property or otherwise materially impair the business operations of the Company and its Subsidiaries, (vi) matters disclosed by any existing title insurance policies or title reports, when
copies of the same have been made available to Parent, (vii) non-exclusive licenses granted by the Company or any of its Subsidiaries in the ordinary course of business for Intellectual
Property owned by the Company or any of its Subsidiaries, (viii) any other mortgage, lien, pledge, charge, security interest, easement, covenant, or other restriction or title matter or
encumbrance of any kind in respect of such asset that does not materially interfere with the Company's use of such asset in the ordinary course of business, and (ix) Liens set forth on
Section 1.01(b)
of the Company Disclosure Letter.
"
Person
" means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization,
including a Governmental Authority.
"
PRC
" means the People's Republic of China, excluding Hong Kong, Macau and Taiwan.
"
Previously Disclosed by Parent
" means disclosed by Parent (i) in the Parent Disclosure Letter, or (ii) prior to the date of
this Amended and Restated Merger Agreement in the Parent SEC Documents.
"
Previously Disclosed by the Company
" means disclosed by the Company (i) in the Company Disclosure Letter, or (ii) prior to
the execution of this Agreement in the Company SEC Documents.
"
Proscribed Theatres
" means those theatres set forth on
Section 1.01(c)
of the
Company Disclosure Letter.
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Table of Contents
"
Regulatory Material Adverse Effect
" means any divestiture, license or hold separate of:
(i) any
theatres of the Company, Parent or any of their respective Affiliates required by any Governmental Authority pursuant to
Section 8.01(e)
that would result in the loss of adjusted theatre-level cash
flows (determined in accordance with the financial information
provided by the Parties on or prior to the date hereof) for the twelve months ended December 31, 2015 in excess of Twenty-Five Million Dollars ($25,000,000) in the aggregate (the
"
Theatre Asset Threshold
");
provided
that the sale of any Proscribed Theatres shall not be counted
towards the Theatre Asset Threshold for purposes of determining the occurrence of any Regulatory Material Adverse Effect;
provided
,
further
, that, if, in
any geographic area, region, or market, any Governmental Authority, pursuant to
Section 8.01(e)
, provides Parent with the ability to select among the theatres of the Company and its Affiliates or
Parent and its Affiliates,
respectively, to be divested, licensed or held separate, then the theatre with the lowest adjusted theatre-level cash flow (determined in accordance with this clause (i)) in such geographic
area, region, or market, shall be deemed to have been divested, licensed, or held separate for purposes of determining the occurrence of any Regulatory Material Adverse Effect due to the divestiture,
license or hold separate of theatres in excess of the Theatre Asset Threshold;
provided
,
further
, that
if Parent or its Affiliates acquire any theatre following the date of this Agreement (a "
Newly Acquired Theatre
"), then the adjusted theatre-level cash
flow of (A) such Newly Acquired Theatre, or (B) any other theatre of the Company, Parent, or their respective Affiliates in the
geographic area, region, or market of such Newly Acquired Theatre that is required to be divested, licensed, or held separate shall not be counted towards the Theatre Asset Threshold for purposes of
determining the occurrence of any Regulatory Material Adverse Effect if such requirement to divest, license or hold separate is reasonably related to such acquisition of a Newly Acquired Theatre, or
(ii) any
non-theatre assets of the Company, Parent, or any of their respective Affiliates required by any Governmental Authority pursuant to
Section 8.01(e)
with an aggregate net book value (determined by
reference to the most recent financial statements set forth in the Company SEC
Documents or Parent SEC Documents, as applicable, prior to the date hereof) in excess of Twenty Million Dollars ($20,000,000);
provided
that if any
Governmental Authority, pursuant to
Section 8.01(e)
, provides Parent with the ability to select among non-theatre assets owned by the Company and
its Affiliates or Parent and its Affiliates, respectively, to be divested, licensed or held separate, then for each selection of non-theatre assets permitted by the Governmental Authority, the
non-theatre assets with the lowest net book value shall be deemed to have been divested, licensed or held separate for purposes of determining the occurrence of any Regulatory Material Adverse Effect.
"
Release
" means any release, spill, leak, emission, deposit, pumping, pouring, emptying, discharging, injecting, escaping, leaching,
disposing, dumping, dispersion or migration of Hazardous Substances into, under, above, onto or from the Environment.
"
Representatives
" means, with respect to any Person, such Person's directors, officers, employees, Affiliates, investment bankers,
attorneys, accountants and other advisors or representatives.
"Required Financial Information"
means (i) all financial and other information regarding the Company and its Subsidiaries to the
extent required under the Debt Commitment Letters in order for Parent to complete and deliver (A) a customary confidential information memorandum (other than the portions thereof customarily
provided by financing or other sources) to syndicate the Financing under the Debt Commitment Letters and (B) a customary offering document relating to an offering of high-yield debt securities
under Rule 144A of the 1933 Act (other than the portions thereof customarily provided by investment banks or their counsel) and (ii) all financial and other information of the Company
and its Subsidiaries required by paragraphs 4, 5 and 6 of Exhibit D to the Debt Commitment Letters; in each case of the foregoing subclauses (i) and (ii),
provided
that, for the avoidance
of doubt,
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Table of Contents
the
Company's obligations with respect to information related to post-Closing pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated
into any pro forma financial information or projections shall be limited to providing Parent with the information regarding the Company and its Subsidiaries that is (x) reasonably necessary in
order for Parent to produce such pro forma financial information or projections and (y) requested by Parent in writing no
later than ten (10) Business Days prior to the filing by the Company of the relevant financial statements on Form 10-K and Form 10-Q.
"
SAFE
" means the State Administration of Foreign Exchange of the PRC as well as its applicable local counterpart.
"
Sarbanes-Oxley Act
" means the Sarbanes-Oxley Act of 2002.
"
SEC
" means the Securities and Exchange Commission.
"
Subsidiary
" means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power
to elect a majority of the board of directors or other persons performing similar functions are at any time directly or indirectly owned by such Person.
"
Superior Proposal
" means a bona fide, written Acquisition Proposal for at least a majority of the outstanding shares of Company Stock or
more than 50% of the consolidated assets of the Company and its Subsidiaries (or assets of the Company and its Subsidiaries representing more than 50% of the consolidated net revenues or consolidated
net income of the Company and its Subsidiaries) that the Board of Directors of the Company determines in good faith, after considering the advice of its outside counsel and a financial advisor of
nationally recognized reputation, (i) is reasonably likely to be consummated in accordance with its terms, and (ii) taking into account all relevant factors (including the legal,
financial and regulatory aspects of the proposal and the party making the proposal), if consummated, would result in a transaction that is more favorable to the Company's stockholders from a financial
point of view than as provided hereunder (including any revisions to the terms of this Agreement contemplated by
Section 6.04(f)
).
"
Tax
" means (i) any tax or other like assessment or charge of any kind whatsoever (including withholding on amounts paid to or by
any Person), together with any interest, penalty, addition to tax or additional amount imposed by any Governmental Authority (a "
Taxing Authority
")
responsible for the imposition of any such tax (domestic or foreign), and any liability for any of the foregoing as transferee and (ii) in the case of any Person, liability for the payment of
any amount of the type described in clause (i) as a result of being or having been before the Effective Time a member of an affiliated, consolidated, combined or unitary group, or a party to
any Tax Sharing Agreement, as a result of which liability of such Person to a Taxing Authority is determined or taken into account with reference to the activities of any other Person.
"
Tax Return
" means any report, return, document, declaration or other information or filing required to be supplied to any Taxing
Authority with respect to Taxes, including information returns, any documents with respect to or accompanying payments of estimated Taxes, or with respect to or
accompanying requests for the extension of time in which to file any such report, return, document, declaration or other information.
"
Tax Sharing Agreements
" means all existing agreements or arrangements (whether or not written) legally binding on a Person that provide
for the allocation, apportionment, sharing or assignment of any Tax liability or benefit, or the transfer or assignment of income, revenues, receipts, or gains for the purpose of determining any
Person's Tax liability.
"
Third Party
" means any Person, including as defined in Section 13(d) of the 1934 Act, other than Parent, the Merger Subsidiary or
the Company, and their respective Affiliates.
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"
Trade Secrets
" means trade secrets and other proprietary and confidential information that provides the Company or any of its
Subsidiaries with a competitive advantage and is maintained in confidence, including know how, and rights in any jurisdiction to limit the use or disclosure thereof by any Person.
"
Ultimate Parent Entity
" has the meaning set forth in 16 Code of Federal Regulations 801.1(a)(3).
"Wanda Group Parties"
means Beijing Wanda Culture Industry Group Co., Ltd. and its Controlled Affiliates.
(b) Each
of the following terms is defined in the Section set forth opposite such term:
|
|
|
Term
|
|
Section
|
Adverse Recommendation Change
|
|
6.04
|
Agreement
|
|
Preamble
|
Alternative Acquisition Agreement
|
|
6.04
|
Amended and Restated Merger Agreement
|
|
Recitals
|
Antitrust Laws
|
|
8.01
|
Approvals
|
|
8.01
|
Bankruptcy and Equity Exception
|
|
4.02
|
Cash Consideration
|
|
2.02
|
Cash Consideration Number
|
|
2.03
|
Cash Election
|
|
2.03
|
Cash Election Shares
|
|
2.03
|
Certificate
|
|
2.02
|
Closing
|
|
2.01
|
Closing Date
|
|
2.01
|
Collective Bargaining Agreement
|
|
4.20
|
Company
|
|
Preamble
|
Company Board Recommendation
|
|
4.02
|
Company Financial Statements
|
|
4.08
|
Company Material Contract
|
|
4.22
|
Company Owned Real Property
|
|
4.14
|
Company Performance Shares
|
|
2.06
|
Company Permits
|
|
4.12
|
Company Preferred Shares
|
|
4.05
|
Company Proxy Statement/Prospectus
|
|
4.09
|
Company Restricted Shares
|
|
2.06
|
Company Restricted Stock Units
|
|
2.06
|
Company SEC Documents
|
|
4.07
|
Company Securities
|
|
4.05
|
Company Stock Option
|
|
2.06
|
Company Stockholder Approval
|
|
4.02
|
Company Subsidiary Securities
|
|
4.06
|
Compensation Committee
|
|
7.05
|
Continuing Employee
|
|
7.05
|
D&O Insurance
|
|
7.04
|
Debt Commitment Letters
|
|
5.17
|
Dissenting Shares
|
|
2.05
|
DOJ
|
|
8.01
|
Effective Time
|
|
2.01
|
Election
|
|
2.03
|
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Table of Contents
|
|
|
Term
|
|
Section
|
Election Deadline
|
|
2.03
|
e-mail
|
|
11.01
|
End Date
|
|
10.01
|
ESPP
|
|
2.06
|
Exchange Agent
|
|
2.03
|
Exchange Agent Agreement
|
|
2.03
|
Exchange Fund
|
|
2.04
|
Executive Plan
|
|
7.05
|
Fee Letters
|
|
5.17
|
Financing
|
|
5.17
|
Form of Election
|
|
2.03
|
Form S-4
|
|
4.09
|
FTC
|
|
8.01
|
Improvements
|
|
4.14
|
Indemnified Person
|
|
7.04
|
Insurance Policies
|
|
4.25
|
internal controls
|
|
4.07
|
Intervening Event Notice
|
|
6.04
|
Intervening Negotiation Period
|
|
6.04
|
Inventories
|
|
4.23
|
Leased Real Property
|
|
4.14
|
Lenders
|
|
5.17
|
Merger
|
|
2.01
|
Merger Consideration
|
|
2.02
|
Merger Subsidiary
|
|
Preamble
|
Negotiation Period
|
|
6.04
|
Newly Acquired Theatre
|
|
1.01
|
Non-Election Shares
|
|
2.03
|
Odeon Registration Statement
|
|
8.02(d)
|
Option Exercise Period
|
|
2.06
|
Order
|
|
8.01
|
Original Merger Agreement
|
|
Recitals
|
Parent
|
|
Preamble
|
Parent Financial Statements
|
|
5.08
|
Parent Permits
|
|
5.12
|
Parent Preferred Shares
|
|
5.05
|
Parent Securities
|
|
5.05
|
Parent Subsidiary Securities
|
|
5.06
|
Parties
|
|
Preamble
|
Party
|
|
Preamble
|
Personal Data
|
|
4.17
|
Proceeding
|
|
7.04
|
Process Agent
|
|
11.08
|
Real Property Leases
|
|
4.14
|
Regulatory Termination Fee
|
|
11.04
|
Shortfall Number
|
|
2.03
|
Solvent
|
|
5.18
|
Stock Consideration
|
|
2.02
|
Stock Conversion Number
|
|
2.03
|
Stock Election
|
|
2.03
|
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Table of Contents
|
|
|
Term
|
|
Section
|
Stock Election Number
|
|
2.03
|
Stock Election Shares
|
|
2.03
|
Substitute Financing
|
|
8.03
|
Superior Proposal Notice
|
|
6.04
|
Surviving Corporation
|
|
2.01
|
Tail Cap
|
|
7.04
|
Taxing Authority
|
|
1.01
|
Termination Fee
|
|
11.04
|
Theatre Asset Threshold
|
|
1.01
|
Uncertificated Shares
|
|
2.02
|
Underwater Option
|
|
2.06
|
WARN Act
|
|
4.20
|
Section 1.02.
Other Definitional and Interpretative Provisions.
The words "hereof", "herein" and
"hereunder" and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections,
Exhibits, and Schedules are to Articles, Sections, Exhibits, and Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby
incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as
defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without limitation", whether or not they are in fact followed by those words or words of like import. "Writing", "written" and
comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute shall be deemed to refer to such statute as
amended from time to time on or prior to the Effective Time and to any rules or regulations promulgated thereunder on or prior to the Effective Time. References to any agreement or contract are to
that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns
of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. References to "law", "laws" or to a particular statute
or law shall be deemed also to include any Applicable Law. If the last day of any time period under this Agreement is a non-Business Day, the period in question shall end on the next succeeding
Business Day.
ARTICLE 2
THE MERGER
Section 2.01.
The Merger.
(a) At
the Effective Time, Merger Subsidiary shall be merged (the "
Merger
") with and into the Company in accordance with
Delaware Law, whereupon the separate existence of Merger Subsidiary shall cease, and the Company shall be the surviving corporation (the "
Surviving
Corporation
").
(b) Subject
to the provisions of
Article 9
, the closing of the Merger (the
"
Closing
") shall take place in Atlanta, Georgia at the offices of King & Spalding LLP, 1180 Peachtree Street NE, Atlanta, Georgia 30309,
as soon as possible after, but in any event no later than two (2) Business Days after, the date the conditions set forth in
Article 9
(other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permissible, waiver of those
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conditions
at the Closing) have been satisfied or, to the extent permissible, waived by the Party or Parties entitled to the benefit of such conditions, or at such other place, at such other time or
on such other date as Parent and the Company may mutually agree in writing; provided, however, that if the Marketing Period has not ended at the time of the satisfaction or waiver of the conditions
set forth in
Article 9
(other than those conditions that by their terms are to be satisfied at the Closing but subject to the satisfaction or
waiver of those conditions at such time), the Closing shall instead occur on the earlier to occur of (a) a date during the Marketing Period specified by Parent on not less than two
(2) Business Days' written notice to the Company and (b) the second Business Day immediately following the last day of the Marketing Period (subject, in each case, to the satisfaction or
waiver of all of the conditions set forth in
Article 9
for the Closing as of the date determined pursuant to this proviso (other than those
conditions that by their terms are to be satisfied at the Closing but subject to the satisfaction or waiver of those conditions at such time)). The date upon which the Closing occurs is referred to
herein as the "
Closing Date
".
(c) At
the Closing, the Company and Merger Subsidiary shall file a certificate of merger with the Delaware Secretary of State and make all other filings or recordings
required by Delaware Law in connection with the Merger. The Merger shall become effective at such time (the "
Effective Time
") as the certificate of
merger is duly filed with the Delaware Secretary of State (or at such later time as may be agreed to by the Parties and specified in the certificate of merger).
(d) From
and after the Effective Time, the Surviving Corporation shall possess all the rights, powers, privileges and franchises and be subject to all of the obligations,
liabilities, restrictions and disabilities of the Company and Merger Subsidiary, all as provided under Delaware Law.
Section 2.02.
Conversion of Shares.
At the Effective Time, by virtue of the Merger and without
any action on the part of Parent, Merger Subsidiary, the Company or the holders of any shares of
Company Stock or any shares of capital stock of Parent or any shares of capital stock of Merger Subsidiary:
(a) Except
as otherwise provided in
Section 2.02(b)
,
Section 2.04(f)
or
Section 2.05
, each share of
Company Stock issued and outstanding
immediately prior to the Effective Time shall be converted into the right to receive, as elected pursuant to and as provided in
Section 2.03
,
either (i) Thirty-Three Dollars and 06/100 ($33.06) in cash, without interest (the "
Cash Consideration
") or (ii) 1.0819 shares of Parent
Class A Common Stock (the "
Stock Consideration
", and together with the Cash Consideration, the "
Merger
Consideration
").
(b) Each
share of Company Stock held by the Company or owned by Parent, Merger Subsidiary or any of their respective Subsidiaries immediately prior to the Effective Time
shall be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor.
(c) Each
share of common stock of Merger Subsidiary outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock of the
Surviving Corporation with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation.
(d) All
of the shares of Company Stock converted into the right to receive the Merger Consideration pursuant to this
Article 2
shall no longer be outstanding and shall automatically be canceled and shall
cease to exist as of the Effective Time, and, subject to
Section 2.04
, each certificate previously representing any such shares of Company Stock (each a
"
Certificate
") or uncertificated shares of Company Stock (the "
Uncertificated Shares
") shall thereafter
represent only the right to receive (i) the Merger Consideration, (ii) cash in lieu of fractional shares into which the shares of Company Stock represented by such Certificate or
Uncertificated Shares have been converted pursuant to this
Section 2.02
and
Section 2.04(f)
, and (iii) any dividends or distributions to
which holders of Company Stock are entitled in accordance with
Section 2.04(c)
.
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Section 2.03.
Election Procedures; Proration.
(a) Each
holder of record (or, in the case of nominee, trustee or representative holders, the beneficial owner through proper instructions and documentation) of shares of
Company Stock that are to be converted into the right to receive the Merger Consideration pursuant to
Section 2.02
shall have the right, subject
to the limitations set forth in this
Article 2
, to submit an election in accordance with the following procedures (an
"
Election
"):
(i) Parent
shall prepare a form of election reasonably acceptable to the Company (the "
Form of Election
"). The Form of
Election shall specify that delivery of Certificates (or affidavits of loss in lieu thereof) or the transfer of Uncertificated Shares to the Exchange Agent in connection with the making of an Election
shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Shares to the Exchange
Agent, shall otherwise include customary provisions and instructions for making Elections and effecting the surrender of Certificates and Uncertificated Shares in connection with the making of an
Election and shall include such other documents or information as Parent reasonably determines to include.
(ii) Each
Person who is a record holder of shares of Company Stock as of the Election Deadline shall have the right to submit a Form of Election. Holders of record of
Company Stock who hold such Company Stock as nominees, trustees or in other representative capacities may submit a separate Form of Election (with proper instructions and documentation) on or before
the Election Deadline with respect to each beneficial owner for whom such nominee, trustee or representative holds such Company Stock. Parent shall prepare and cause the Exchange Agent to mail a Form
of Election to the record holders (with sufficient copies for beneficial owners as may be requested) of Company Stock as of a date reasonably determined by the Company after consultation with Parent
no later than the date that is thirty (30) days prior to the anticipated Election Deadline or such other date as mutually agreed upon by the Company and Parent, which Form of Election shall be
used by each record holder (or, in the case of nominee, trustee or representative holders, the beneficial owner through proper instructions and documentation) of shares of Company Stock who wishes to
make an Election. Parent shall make available one or more Forms of Election as may reasonably be requested from time to time by all Persons who become record holders or beneficial owners of Company
Stock after the initial mailing but before the Election Deadline, and the Company shall use commercially reasonable efforts to provide the Exchange Agent with all information reasonably necessary for
it to perform its duties as specified herein.
(iii) Each
Form of Election shall permit the Company's stockholders (or in the case of nominee, trustee or representative record holders, the beneficial owner through proper
instructions and documentation) to (A) elect to receive the Cash Consideration for all or a portion of such stockholder's shares (a "
Cash
Election
"), (B) elect to receive the Stock Consideration for all or a portion of such stockholder's shares (a "
Stock
Election
") or (C) make no election with respect to the receipt of the Cash Consideration or the Stock Consideration;
provided
,
however
, that, notwithstanding any other provision of this Agreement to the contrary, thirty
percent (30%) of the total number of shares of Company Stock issued and outstanding at the Effective Time, excluding any treasury shares and shares described in
Section 2.02(b)
(the "
Stock Conversion Number
"), shall be converted into the right to receive
Stock Consideration and seventy percent (70%) of the total number of shares of Company Stock issued and outstanding at the Effective Time, excluding any treasury shares and shares described in
Section 2.02(b)
shall be converted into the right to receive the Cash Consideration (the "
Cash Consideration
Number
"), in each case, in accordance with the allocation procedures set forth in
Section 2.03(b)
;
provided
,
further
, that for purposes of the immediately preceding proviso, Dissenting Shares and shares
of Company Stock converted into the right to receive a fraction of a share of Parent Class A Common Stock shall both be treated as if
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such
shares were converted into the right to receive the Cash Consideration (and solely for purposes of this clause, $33.06 in cash will be deemed payable in respect of each Dissenting Share). Shares
of Company Stock as to which a Cash Election has been made and not revoked as of the Election Deadline, shares of Company Stock that constitute Dissenting Shares as of the Election Deadline and shares
of Company Stock converted into the right to receive a fraction of a share of Parent Class A Common Stock are referred to herein as "
Cash Election
Shares
". Shares of Company Stock as to which a Stock Election has been made and not revoked as of the Election Deadline are referred to herein as "
Stock
Election Shares
". Shares of Company Stock as to which no election has been made (or as to which a Form of Election is not properly completed and returned in a timely fashion or
as to which a Form of Election has been revoked and not replaced) as of the Election Deadline are referred to herein as "
Non-Election Shares
". The
aggregate number of shares of Company Stock with respect to which a Stock Election has been made and not revoked or changed as of the Election Deadline is referred to herein as the
"
Stock Election Number
". For the avoidance of doubt, if a stockholder of the Company does not submit a properly completed Form of Election by the
Election Deadline, the shares of Company Stock held by such stockholder shall be designated Non-Election Shares.
(iv) Any
Election shall have been made properly only if the Person authorized to receive Elections and to act as exchange agent in connection with the transactions
contemplated by this Agreement, which Person shall be selected by Parent and be reasonably acceptable to the Company (the "
Exchange Agent
"), pursuant to
an agreement reasonably acceptable to Parent and the Company entered into prior to the mailing of the Form of Election to the Company's stockholders (the "
Exchange Agent
Agreement
"), shall have received, by the Election Deadline, a Form of Election properly completed and signed and accompanied by, in the case of physical certificates
representing shares of Company Stock, Certificates to which such Form of Election relates (or affidavits of loss in lieu thereof) or by an appropriate customary guarantee of delivery of such
Certificates, as set forth in such Form of Election, from a member of any registered national securities exchange or a commercial bank or trust company in the United States;
provided
that such
Certificates are in fact delivered to the Exchange Agent by the Election Deadline. Failure to deliver Certificates representing
shares of Company Stock covered by such a guarantee of delivery by the Election Deadline shall be deemed to invalidate any otherwise properly made Election, unless otherwise determined by Parent in
its reasonable discretion, and such shares shall be deemed to be Non-Election Shares. For Uncertificated Shares, Parent shall establish Election procedures for such shares of Company Stock, which
procedures shall be reasonably acceptable to the Company. If a stockholder of the Company has demanded appraisal of shares of Company Stock, any Election submitted by such stockholder with respect to
such shares of Company Stock (unless such demand shall have been withdrawn prior to the Election Deadline) shall be deemed invalid. All Forms of Election shall automatically be revoked, and all
Certificates returned, if the Exchange Agent is notified in writing by Parent and the Company that this Agreement has been terminated in accordance with its terms. After an Election is properly made
with respect to any share of Common Stock, any subsequent transfer of such share shall automatically revoke such Election.
(v) As
used herein, "
Election Deadline
" means 5:00 p.m. local time (in the city in which the principal office of the
Exchange Agent is located) on the date that is five (5) Business Days prior to, but not including, the Closing Date unless otherwise mutually agreed by Parent and the Company, in which event
Parent and the Company shall reasonably promptly announce such rescheduled Election Deadline. An Election may be revoked or changed only by delivering to the Exchange Agent, prior to the Election
Deadline, a written notice of revocation or, in the case of a change, a properly completed revised Form of Election that identifies the Company Stock to which such revised Form of Election applies.
Delivery to the Exchange Agent prior to the Election Deadline of a revised Form of Election with respect to any Company Stock shall constitute the
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revocation
of all prior Forms of Election with respect to all such Company Stock. Parent and the Company shall use reasonable best efforts to publicly announce the Election Deadline at least five
(5) Business Days prior to the Election Deadline or such other date mutually agreed upon by Parent and the Company.
(vi) Subject
to the terms of the Exchange Agent Agreement, if Parent shall determine in its reasonable discretion that any Election is not properly made with respect to any
shares of Company Stock (neither Parent nor the Company nor the Exchange Agent being under any duty to notify any stockholder of the Company of any such defect), such Election shall be deemed to be
not in effect, and the shares of Company Stock covered by such Election shall, for purposes hereof, be deemed to be Non-Election Shares, unless a proper Election is thereafter made prior to the
Election Deadline. Neither Parent nor the Exchange Agent shall be under any obligation to notify any Person of any defect in a Form of Election.
(vii) Parent,
the Company and the Exchange Agent may agree upon election procedures in addition to or different from the procedures set forth above in order to effectuate
Elections;
provided
,
however
, that subject to the terms of the Exchange Agent Agreement and any specific
terms of this Agreement, Parent, in the exercise of its reasonable discretion, shall have the right to make all determinations, not inconsistent with the terms of this Agreement, governing
(A) the validity of the Forms of Election and compliance by any stockholder of the Company with the Election procedures set forth herein, (B) the manner and extent to which Elections are
to be taken into account in making the determinations prescribed by
Section 2.03(b)
, (C) the issuance and delivery of shares of Parent
Class A Common Stock into which shares of Company Stock are converted in the Merger and (D) the method of payment of cash for shares of Company Stock converted into the right to receive
the Cash Consideration and cash in lieu of fractional shares of Parent Class A Common Stock.
(b) The
allocation of rights to receive the Cash Consideration and the Stock Consideration among the Company's stockholders will be made as set forth in this
Section 2.03(b)
.
(i) If
the Stock Election Number exceeds the Stock Conversion Number, then all Cash Election Shares (other than Dissenting Shares) and all Non-Election Shares shall be
converted into the right to receive the Cash Consideration and, subject to
Section 2.04(f)
hereof, each holder of Stock Election Shares will be
entitled to receive the Stock Consideration in respect of that number of Stock Election Shares held by such holder equal to the product obtained by multiplying (A) the number of Stock Election
Shares held by such holder by (B) a fraction, the numerator of which is the Stock Conversion Number and the denominator of which is the Stock Election Number, with the remaining number of such
holder's Stock Election Shares being converted into the right to receive the Cash Consideration; and
(ii) If
the Stock Election Number is less than the Stock Conversion Number (the amount by which the Stock Conversion Number exceeds the Stock Election Number being referred
to herein as the "
Shortfall Number
"), then all Stock Election Shares shall be converted into the right to receive the Stock Consideration and the
Non-Election Shares and the Cash Election Shares shall be treated in the following manner:
(A) If
the Shortfall Number is less than or equal to the number of Non-Election Shares, then all Cash Election Shares (other than Dissenting Shares) shall be converted into
the right to receive the Cash Consideration and, subject to
Section 2.04(f)
hereof, each holder of Non-Election Shares shall receive the Stock
Consideration in respect of that number of Non-Election Shares held by such holder equal to the product obtained by multiplying (1) the number of Non-Election Shares held by such holder by
(2) a fraction, the numerator of which is the Shortfall Number and the denominator of which is the total number of Non-Election Shares, with the remaining number of such holder's Non-Election
Shares being converted into the right to receive the Cash Consideration; or
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(B) If
the Shortfall Number exceeds the number of Non-Election Shares, then all Non-Election Shares shall be converted into the right to receive the Stock Consideration and,
subject to
Section 2.04(f)
hereof, each holder of Cash Election Shares (other than Dissenting Shares) shall receive the Stock Consideration in
respect of that number of Cash Election Shares equal to the product obtained by multiplying (1) the number of Cash Election Shares held by such holder by (2) a fraction, the numerator of
which is the amount by which (x) the Shortfall Number exceeds (y) the total number of Non-Election Shares, and the denominator of which is the total number of Cash Election Shares, with
the remaining number of such holder's Cash Election Shares being converted into the right to receive the Cash Consideration.
Section 2.04.
Surrender and Payment.
(a) At
or prior to the Effective Time, Parent shall make available to the Exchange Agent (i) evidence of the Parent Class A Common Stock in book-entry form
(and/or certificates representing the shares of Parent Class A Common Stock at Parent's election) sufficient to deliver the aggregate Stock Consideration, (ii) immediately available
funds equal to any dividends or distributions payable in accordance with
Section 2.04(c),
(iii) immediately available funds equal to the
aggregate Cash Consideration, and (iv) cash in lieu of any fractional shares to be issued pursuant to
Section 2.02
and paid pursuant to
Section 2.04(f)
in exchange for outstanding shares of Company Stock (other than Dissenting Shares) (such cash and book-entry or certificates for
shares of Parent Class A Common Stock collectively being referred to as the "
Exchange Fund
"). Such cash funds may be invested by the Exchange
Agent as directed by Parent;
provided
that (A) no such investment or losses thereon shall affect the Merger Consideration or other amounts
payable hereunder, (B) if, for any reason (including if Dissenting Shares cease to be Dissenting Shares or if a dividend or distribution payable in accordance with
Section 2.04(c)
is paid),
the cash and the evidence of book-entry or certificates for shares of Parent Class A Common Stock in the
Exchange Fund becomes insufficient to make the payments contemplated by this
Article 2
, then Parent shall promptly provide additional cash,
evidence of book-entry or certificates for shares of Parent Class A Common Stock, as applicable to the Exchange Agent for the benefit of the former stockholders of the Company sufficient to
make the payments contemplated by this
Article 2
and (C) such investments shall only be in short-term obligations of the United States of
America with maturities of no more than thirty (30) days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial
paper obligations rated A-1 or P-1 or better by Moody's Investors Service, Inc. or Standard & Poor's Corporation, respectively. Any interest or income produced by such investments will
be payable to the Surviving Corporation or Parent, as Parent directs.
(b) Promptly
after the Effective Time (but not later than three (3) Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each
holder of shares of Company Stock who did not properly complete and timely submit and not revoke a Form of Election a letter of transmittal and instructions (which shall specify that the delivery
shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Shares to the Exchange
Agent) and shall be in such form and have such other or different provisions as Parent shall reasonably designate for use in such exchange. Upon proper surrender of the Certificates for exchange (or
affidavits of loss in lieu thereof) and cancellation or transfer of the Uncertificated Shares to the Exchange Agent, together with such properly completed letter of transmittal, the holder of such
Certificates or Uncertificated Shares shall be entitled to receive in exchange therefor, as applicable, (i) a certificate or book-entry transfer representing the number of whole shares of
Parent Class A Common Stock to which such holder of Company Stock shall have become entitled pursuant to the provisions of
Article 2
,
(ii) a check representing the amount of the aggregate Cash Consideration (rounded up to the nearest whole cent) and any cash in lieu of fractional shares which such holder has the right to
receive in respect of the Certificates or Uncertificated Shares
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surrendered
pursuant to the provisions of this
Article 2
, and (iii) a check representing the amount of any dividends or distributions then
payable pursuant to
Section 2.04(c)
, and the Certificates or Uncertificated Shares so surrendered shall forthwith be canceled. No interest will
be paid or accrued on any cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders
of Certificates or Uncertificated Shares. Until so surrendered, each Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive the Merger
Consideration, together with any cash in lieu of fractional shares and any dividends or distributions as contemplated by
Section 2.04(c)
. The
Parent, the Company and the Exchange Agent may agree on transfer procedures in addition to or different from the procedures set forth above in order to effect the transfer and conversion of Company
Stock.
(c) No
dividends or other distributions declared with respect to Parent Class A Common Stock shall be paid to the holder of any Certificate that has not been
surrendered or Uncertificated Share that has not been transferred until the holder thereof shall surrender such Certificate or transfer such Uncertificated Share in accordance with this
Article 2
.
After the surrender of a Certificate or transfer of an Uncertificated Share in accordance with this
Article 2
, the record holder thereof shall be entitled to receive (i) the amount of
dividends or other distributions with a record date
after the Effective Time theretofore paid, without any interest thereon, with respect to the whole shares of Parent Class A Common Stock represented by such Certificate or Uncertificated Share
and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to
surrender, with respect to shares of Parent Class A Common Stock represented by such Certificate or Uncertificated Share.
(d) If
any certificate representing shares of Parent Class A Common Stock is to be issued in, or any Cash Consideration is to be paid to a Person other than the
Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be
properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred, accompanied by all documents reasonably required to evidence and effect
such transfer, and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other Taxes required as a result of such payment to a Person other than the registered
holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(e) The
shares of Parent Class A Common Stock delivered and cash paid in accordance with the terms of this
Article 2
upon conversion of any shares of the Company Stock shall be deemed to have been
delivered and paid in full satisfaction of all rights
pertaining to such shares of the Company Stock. From and after the Effective Time, subject to Delaware Law in the case of Dissenting Shares, all holders of Certificates and Uncertificated Shares shall
cease to have any rights as stockholders of the Company other than the right to receive the Merger Consideration into which the shares represented by such Certificates or Uncertificated Shares have
been converted pursuant to this Agreement and any funds payable in accordance with
Section 2.04(c)
upon the surrender of such Certificate or
Uncertificated Share in accordance with this
Article 2
. After the Effective Time, there shall be no further registration of transfers of shares
of Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the
Merger Consideration provided for, and in accordance with the procedures set forth, in this
Article 2
plus any funds payable in accordance with
Section 2.04(c)
.
(f) Notwithstanding
anything to the contrary contained in this Agreement, no certificates or scrip representing fractional shares of Parent Class A Common Stock shall
be issued upon the surrender of Certificates for exchange or transfer of Uncertificated Shares, no dividend or distribution with respect to Parent Class A Common Stock shall be payable on or
with respect to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of Parent. In lieu of the issuance of any
such fractional share, Parent shall pay to each
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former
stockholder of the Company who otherwise would be entitled to receive such fractional share an amount in cash, without interest (rounded to the nearest cent) determined by multiplying
(i) the Parent Trading Price by (ii) the fraction of a share (rounded to the nearest thousandth when expressed in decimal form) of Parent Class A Common Stock to which such holder
would otherwise be entitled to receive pursuant to
Section 2.02
.
(g) Any
portion of the Exchange Fund that remains unclaimed by the former holders of shares of Company Stock as of the one year anniversary of the Effective Time shall be
returned to Parent upon demand. Any former stockholders of the Company who have not theretofore complied with this
Article 2
shall thereafter
look only to Parent (subject to abandoned property, escheat or other similar Applicable Laws), as general creditors thereof, for payment of the Merger Consideration, cash in lieu of any fractional
shares and any unpaid dividends and distributions payable in accordance with
Section 2.04(c)
, in respect of each share of Company Stock, as the
case may be, such stockholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding the foregoing, none of Parent, Merger Subsidiary, the Company,
the Exchange Agent or any other person shall be liable to any former holder of shares of Company Stock for any amount delivered in good faith to a public official pursuant to applicable abandoned
property, escheat or similar laws. Notwithstanding any other provision of this Agreement, any portion of the Merger Consideration or the cash to be paid in accordance with this
Article 2
that
remains undistributed to any former holder of Company Stock, as of immediately prior to the date on which the Merger Consideration
or such cash that would otherwise escheat to or become the property of any Governmental Authority, shall, to the extent permitted by Applicable Law, become the property of the Surviving Corporation,
free and clear of all claims or interest of any Person previously entitled thereto.
Section 2.05.
Dissenting Shares.
Notwithstanding
Section 2.02
, shares of Company Stock outstanding immediately prior to the Effective Time
and held by a holder who has not voted in favor of the Merger or consented thereto in writing with respect to such shares and who has demanded appraisal for such shares in accordance with Delaware Law
("
Dissenting Shares
") shall not be converted into the right to receive the Merger Consideration. At the Effective Time, all Dissenting Shares shall be
cancelled and cease to exist, and the holders of Dissenting Shares shall only be entitled to the rights granted to them pursuant to Delaware Law. If, after the Effective Time, such holder fails to
perfect or effectively withdraws or otherwise loses the right to appraisal with respect to such shares, in any case pursuant to Delaware Law, such shares shall be treated as Cash Election Shares,
without interest thereon. The Company shall give Parent prompt notice of any demands received by the Company for appraisal of shares, and Parent shall have the right to participate in all negotiations
and proceedings with respect to such demands. Except with the prior written consent of Parent or as required by Applicable Law, the Company shall not make any payment with respect to, or offer to
settle or settle, any such demands.
Section 2.06.
Company Equity and Equity-Based Awards.
(a) At
least seven days prior to the Effective Time, each option to purchase shares of Company Stock that is then-outstanding under the Company Stock Plans (each, a
"
Company Stock Option
"), whether or not vested or exercisable, shall, contingent upon consummation of the Merger, (i) become 100% vested and
(ii) be exercisable at any time during the seven day period prior to the Effective Time (the "
Option Exercise Period
"), reasonable notice of
which shall be provided by the Company. Each share of Company Stock received in connection with the exercise of Company Stock Options will be entitled to receive the Merger Consideration pursuant to
Section 2.02
plus any dividends or distributions to which holders of Company Stock are entitled in accordance with
Section 2.04(c)
. To the extent not
exercised within the Option Exercise Period, each outstanding Company Stock Option shall, at the Effective
Time, be canceled, automatically and without any action on behalf of the holder thereof, and the Company shall pay each holder of such canceled Company Stock Option an amount in cash (less any
applicable Tax withholding), determined by multiplying (x) the excess, if any, of the Cash
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Consideration
over the exercise price per share of Company Stock subject to such Company Stock Option by (y) the number of shares of Company Stock subject to such Company Stock Option;
provided
that if the per
share exercise price payable with respect to a Company Stock Option exceeds the Cash Consideration (an
"
Underwater Option
"), then such Underwater Option shall be canceled without payment of any consideration with respect thereto.
(b) Immediately
prior to the Effective Time, each share of restricted stock that is then outstanding under the Company Stock Plans (each, an award of
"
Company Restricted Shares
"), whether or not vested, shall, contingent upon consummation of the Merger, become 100% vested and all outstanding issuance
and forfeiture conditions shall be deemed 100% satisfied, and the holders of such shares shall be entitled to receive the Merger Consideration pursuant to
Section 2.02
plus any dividends or
distributions to which holders of Company Stock are entitled in accordance with
Section 2.04(c)
.
(c) Immediately
prior to the Effective Time, each award of restricted stock units that is then outstanding under the Company Stock Plans (each, an award of
"
Company Restricted Stock Units
"), whether or not vested, shall, contingent upon consummation of the Merger, become 100% vested and all outstanding
issuance and forfeiture conditions shall be deemed 100% satisfied, and the Company shall with respect to the holder of any such Company Restricted Stock Units (i) issue the number of shares of
Company Stock underlying such Company Restricted Stock Units, which shares shall be entitled to receive the Merger Consideration pursuant to
Section 2.02
plus any dividends or distributions to
which holders of Company Stock are entitled in accordance with
Section 2.04(c),
and (ii) pay in cash all dividend equivalents, if any, accrued but unpaid as of the Effective Time with respect
to the
number of shares of Company Stock underlying such Company Restricted Stock Units.
(d) Immediately
prior to the Effective Time, each award of performance shares that is then outstanding under the Company Stock Plans (each, an award of
"
Company Performance Shares
"), whether or not vested, or whether or not performance criteria have been achieved, shall, contingent upon consummation of
the Merger, become 100% vested and all outstanding issuance and forfeiture conditions shall be deemed 100% satisfied with respect to (i) the actual number of shares of Company Stock earned for
each performance period completed prior to the Effective Time, as determined by the Company prior to the Effective Time in accordance with the terms of the applicable award agreements and the Company
Stock Plans in existence as of the date hereof, and (ii) the number of shares of Company Stock equal to the specified number of target shares for any performance period during which the
Effective Time occurs and for each succeeding performance period covered by such Company Performance Shares, and the holders of such shares shall be entitled to receive the Merger Consideration
pursuant to
Section 2.02
plus any dividends or distributions to which holders of Company Stock are entitled in accordance with
Section 2.04(c)
.
(e) The
Company shall terminate the Company Stock Plans immediately as of the Effective Time, and following the Effective Time, no participant in any Company Stock Plan
shall have any right under any such Company Stock Plan other than the right to receive the awards or payments in accordance with the terms of this
Section 2.06
. Prior to the Effective Time, the
Company shall take all actions necessary to obtain any consents and make any amendments to the
terms of any outstanding awards under the Company Stock Plans as may be necessary to give effect to the transactions contemplated by this
Section 2.06
. The Company will take steps necessary to
arrange for all required Tax withholdings with respect to the Company Restricted Shares,
Company Restricted Stock Units, and Company Performance Shares. The Company shall, or Parent and the Company shall cause the Exchange Agent to, provide a Form of Election to each holder of Company
Stock Options, Company Restricted Shares, Company Restricted Stock Units and Company Performance Shares reasonably in advance of the Election Deadline (and in any event no later than the date that is
thirty (30) days prior to the anticipated Election Deadline or such other date as mutually agreed upon by the Company and Parent). The Company shall ensure that, as of immediately following the
Effective Time, no holder of a
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Company
Stock Option, Company Restricted Shares, Company Restricted Stock Units or Company Performance Shares (or former holder or a participant in any Company Stock Plan) shall have any rights
thereunder to acquire, or other rights in respect of, the capital stock of the Company, the Surviving Corporation or any of their Subsidiaries, or any other equity interest therein, except for the
right to receive the Merger Consideration described in this
Section 2.06
. All payments under this
Section 2.06
shall be made at or as soon as
practicable after the Effective Time, pursuant to the Company's ordinary payroll practices, and shall
be subject to any applicable withholding.
(f) The
Company shall take all of the following actions (including adoption of any required amendments) with respect to the Carmike Employee Stock Purchase Plan (the
"
ESPP
"): (i) unless otherwise agreed between the Parties, suspend the ESPP effective no later than after the close of business on
March 31, 2016, so that no purchases of Company Stock shall be permitted with respect to purchase periods commencing on or after April 1, 2016 and (ii) terminate the ESPP
immediately as of the Effective Time so that no further purchase rights shall accrue after the Effective Time. All ESPP participants will automatically receive their accrued purchase rights under the
ESPP upon the termination of the ESPP.
Section 2.07.
Adjustments.
If, during the period between the date of this Amended and Restated
Merger Agreement and the Effective Time, any change in the outstanding shares of capital stock
of Parent shall occur by reason of any reclassification, recapitalization, stock split or combination, or any stock dividend thereon with a record date during such period or any similar event, the
Merger Consideration and any other amounts payable pursuant to this Agreement shall be appropriately adjusted, including to provide to the holders of Company Stock, Company Stock Options, Company
Restricted Shares, Company Restricted Stock Units and Company Performance Shares the same economic effect as contemplated by this Agreement prior to such action, and as so adjusted shall, from and
after the date of such event, be the Merger Consideration, subject to further adjustment in accordance with this provision.
Section 2.08.
Withholding Rights.
The Exchange Agent (or the Company, if necessary pursuant to
Section 2.06
) (or, subsequent to the one year
anniversary of the Effective Time, Parent or the Surviving Corporation) shall be entitled to deduct and withhold from any cash portion of the Merger Consideration, any cash in lieu of fractional
shares of Parent Class A Common Stock, cash dividends or distributions payable pursuant to
Section 2.04(c)
and any other cash amounts
otherwise payable pursuant to this Agreement, such amounts as the Exchange Agent, the Company, or Parent, as the case may be, is required to deduct and withhold under the Code, or any provision of
state, local or foreign Tax Law, with respect to the making of such payment. To the extent the amounts are so withheld by the Exchange Agent, the Company, Parent, or the Surviving Corporation, as the
case may be, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of whom such deduction and withholding was made.
Section 2.09.
Lost Certificates.
If any Certificate shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost,
stolen or destroyed and, if required by the Surviving Corporation, Parent or the Exchange Agent, the posting by such Person of a bond, in such amount as the Surviving Corporation, Parent or the
Exchange Agent may determine is reasonably necessary, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent (or if subsequent to the
termination of the Exchange Fund and subject to
Section 2.04(g)
, Parent) will issue, in exchange for such lost, stolen or destroyed Certificate,
the Merger Consideration, any cash in lieu of fractional shares deliverable in respect thereof pursuant to this Agreement, and any unpaid dividends and distributions payable in accordance with
Section 2.04
(c).
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ARTICLE 3
THE SURVIVING CORPORATION
Section 3.01.
Governing Documents.
At the Effective Time, the certificate of incorporation and bylaws
of the Company shall be amended and restated in their entirety to read as set forth in
Exhibits A and B, and, as so amended, shall be the certificate of incorporation and bylaws of the Surviving Corporation, until thereafter amended, subject to
Section 7.04
, in accordance with
Delaware Law and the applicable provisions of such certificate of incorporation and bylaws.
Section 3.02.
Directors and Officers.
(a) The
Parties shall take all actions necessary so that the directors of Merger Subsidiary immediately prior to the Effective Time shall, from and after the Effective Time,
be the directors of the Surviving Corporation until their successors have been duly elected and qualified or until their earlier death, resignation, or removal in accordance with the bylaws of the
Surviving Corporation.
(b) Except
as otherwise determined by Parent prior to the Effective Time, the officers of Merger Subsidiary immediately prior to the Effective Time shall be the initial
officers of the Surviving Corporation and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation or removal.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Subject to
Section 11.05
, except as Previously Disclosed by the Company, the
Company represents and warrants to Parent that:
Section 4.01.
Corporate Existence and Power.
The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware and has all corporate power and
authority required to carry on its business as now conducted, except for any failure to be so organized, existing and in good standing as, and to have corporate power and authority the absence of
which, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified or in good standing has not had, and
would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Section 4.02.
Corporate Authorization.
(a) Assuming
the accuracy and completeness of the representation and warranty in
Section 5.19
the execution, delivery
and performance by the Company of the Original Merger Agreement and the consummation by the Company of the transactions contemplated thereby are within the Company's corporate power and authority and,
except for the required approval of the Company's stockholders in connection with the consummation of the Merger, have been duly authorized by all necessary corporate action on the part of the
Company. Assuming the accuracy and completeness of the representation and warranty in
Section 5.19
the affirmative vote of the holders of a
majority of the outstanding shares of Company Stock is the only vote of the holders of any of the Company's capital stock necessary in connection with the consummation of the Merger (the
"
Company Stockholder Approval
"). Assuming the accuracy and completeness of the representation and warranty in
Section 5.19
subject to the receipt of
the Company Stockholder Approval, the Original Merger Agreement constitutes a valid and binding agreement
of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Applicable Laws of general
applicability relating to or affecting creditors' rights and to general equity principles (the "
Bankruptcy and Equity Exception
").
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(b) The
Company's Board of Directors has unanimously (i) determined that this Agreement and the transactions contemplated hereby are in the best interests of the
Company's stockholders, (ii) approved, adopted and declared advisable this Agreement and the transactions contemplated hereby in accordance with the requirements of Delaware Law and
(iii) resolved, subject to
Section 6.04
, to recommend approval and adoption of this Agreement by its stockholders (such recommendation,
the "
Company Board Recommendation
").
Section 4.03.
Governmental Authorization.
The execution, delivery and performance by the Company
of this Agreement and the consummation by the Company of the transactions contemplated hereby require no
action by or in respect of, or filing by the Company with, any Governmental Authority other than (a) the filing of a certificate of merger with respect to the Merger with the Delaware Secretary
of State and appropriate documents with the relevant authorities of other states in which the Company is qualified to do business, (b) compliance with any applicable requirements of the HSR Act
and of laws analogous to the HSR Act existing in foreign jurisdictions, (c) compliance with any applicable requirements of the 1933 Act, the 1934 Act, any other applicable state or federal
securities laws and the rules and regulations of NASDAQ and (d) any actions or filings the absence of which would not reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect. Neither the Company nor any of its Affiliates has any interests in any entities, has any material assets or derives any material revenue from outside the United States.
Section 4.04.
Non-contravention.
The execution, delivery and performance by the Company of this
Agreement and the consummation of the transactions contemplated hereby do not and will not
(a) contravene, conflict with, or result in any violation or breach of any provision of the certificate of incorporation or bylaws of the Company, (b) assuming compliance with the
matters referred to in
Section 4.03
, and the accuracy and completeness of the representation and warranty in
Section 5.19
contravene, conflict
with or result in a violation or breach of any Applicable Law, (c) assuming compliance with the matters
referred to in
Section 4.03
, require any consent by any Person under, constitute a default under, or cause or permit the termination,
cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which the Company or any of its Subsidiaries is entitled under any agreement or other instrument
binding upon the Company or any of its Subsidiaries, or (d) result in the creation or imposition of any Lien on any asset of the Company or any of its Subsidiaries, with only such exceptions,
in the case of each of clauses (b), (c) and (d), as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Section 4.05.
Capitalization.
(a) The
authorized capital stock of the Company consists of (i) 52,500,000 shares of Company Stock and (ii) 1,000,000 shares of preferred stock, par value One
Dollar ($1.00) per share ("
Company Preferred Shares
"). As of March 2, 2016, there were outstanding: (i) 24,548,635 shares of Company Stock
(excluding Company Restricted Shares), (ii) no Company Preferred Shares, (iii) Company Stock Options to purchase an aggregate of 623,334 shares of Company Stock, (iv) 1,750
Company Restricted Shares, (v) 178,965 Company Performance Shares and (vi) 77,503 Company Restricted Stock Units. All outstanding shares of capital stock of the Company have been, and
all shares that may be issued pursuant to any grant of Company Stock Options, Company Restricted Shares, Company Performance Shares, or Company Restricted Stock Units will be, duly authorized and
validly issued and fully paid.
(b) Except
(i) as set forth in
Section 4.05(a)
of this Agreement, (ii) for changes since March 2,
2016 resulting from the issuance of shares of Company Stock pursuant to the ESPP or the exercise or settlement of Company Stock Options, Company Restricted Shares, Company Performance Shares or
Company Restricted Stock Units set forth on the Company Disclosure Letter or issued in accordance with
Section 6.01
, and (iii) for the
issuance of any Company Stock Options, Company Restricted Shares, Company Performance Shares or Company Restricted Stock Units issued in accordance with
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Section 6.01
, there are no issued, reserved for issuance or outstanding (A) shares of capital stock or other voting securities or ownership interests in the
Company, (B) securities of the Company convertible into or exchangeable for shares of capital stock or other voting securities of or ownership interests in the Company, (C) warrants,
calls, options or other rights to acquire from the Company, or other obligations of the Company to issue, any capital stock, voting securities or securities convertible into or exchangeable for
capital stock or voting securities of the Company, or (D) restricted shares, stock appreciation rights, performance units, contingent value rights, "phantom" stock or similar securities or
rights, in each case issued by the Company, that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock or voting securities of the
Company (the items in clauses (A) through (D) being referred to collectively as the "
Company Securities
"). There are no outstanding
obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Securities.
(c) None
of the Company Securities are owned by any Subsidiary of the Company.
Section 4.06.
Subsidiaries.
(a) Each
Subsidiary of the Company has been duly organized, is validly existing and (where applicable) in good standing under the laws of its jurisdiction of organization,
and has all organizational power and authority required to carry on its business as now conducted, except for any failure to be so organized, existing and in good standing as, and to have power and
authority as, the absence of which, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each such Subsidiary is duly
qualified to do business as a foreign entity and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified or in
good standing has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. All material Subsidiaries of the Company and their
respective jurisdictions of organization are identified in the Company 10-K.
(b) All
of the outstanding capital stock or other voting securities of, or ownership interests in, each Subsidiary of the Company is owned by the Company, directly or
indirectly, free and clear of any material Lien. As of March 2, 2016, there were no issued, reserved for issuance or outstanding (i) securities of the Company or any of its Subsidiaries
convertible into, or exchangeable for, shares of capital stock or other voting securities of, or ownership interests in, any Subsidiary of the Company, (ii) warrants, calls, options or other
rights to acquire from the Company or any of its Subsidiaries, or other obligations of the Company or any of its Subsidiaries to issue, any capital stock or other voting securities of, or ownership
interests in, or any securities convertible into, or exchangeable for, any capital stock or other voting securities of, or ownership interests in, any Subsidiary of the Company or
(iii) restricted shares, stock appreciation rights, performance units, contingent value rights, "phantom" stock or similar securities or rights, in each case issued by the Company or any
Subsidiary, that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock or other voting securities of, or ownership interests in,
any Subsidiary of the Company (the items in clauses (i) through (iii) being referred to collectively as the "
Company Subsidiary
Securities
"). There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Subsidiary
Securities.
Section 4.07.
SEC Filings.
(a) The
Company has filed with or furnished to the SEC all reports, schedules, forms, statements, prospectuses, registration statements and other documents required to be
filed or furnished by the Company since January 1, 2014 (collectively, together with any exhibits and schedules thereto and other information incorporated therein, the
"
Company SEC Documents
").
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(b) As
of its filing date (and as of the date of any amendment), each Company SEC Document complied, and each Company SEC Document filed subsequent to the date hereof will
comply, in all material respects with the applicable requirements of the 1933 Act and the 1934 Act, as the case may be.
(c) As
of their respective filing dates (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), except as may have been corrected by
any subsequent filing prior to the date hereof, the Company SEC Documents filed pursuant to the 1934 Act did not, and the Company SEC Documents filed subsequent to the date hereof will not, contain
any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not
misleading.
(d) As
of the date hereof, there are no outstanding or unresolved comments received from the SEC with respect to the Company SEC Documents. To the Company's knowledge, as of
the date hereof, none of the Company SEC Documents are the subject of any ongoing SEC review or investigation.
(e) Except
as may have been corrected by any subsequent filing, each Company SEC Document that is a registration statement, as amended or supplemented, if applicable, filed
pursuant to the 1933 Act, as of the date such registration statement or amendment became effective, did not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not misleading.
(f) The
Company has complied in all material respects with (i) all current listing and corporate governance rules and regulations of the NASDAQ and (ii) all
rules, regulations and requirements of the Sarbanes-Oxley Act.
(g) The
Company maintains disclosure controls and procedures required by Rule 13a-15(e) or 15d-15(e) under the 1934 Act. Such disclosure controls and procedures are
reasonably designed to ensure that material information required to be disclosed by the Company is made known to the Company's principal executive officer and principal financial officer by others
within the Company. Such disclosure controls and procedures are reasonably effective in timely alerting the Company's principal executive officer and principal financial officer to material
information required to be included in the Company's periodic and current reports required under the 1934 Act. For the purposes of this Agreement, "principal executive officer" and "principal
financial officer" shall have the meanings given to such terms in the Sarbanes-Oxley Act.
(h) Since
January 1, 2014, the Company, under the supervision of its principal executive officer and principal financial officer, has established and maintained a
system of internal control over financial reporting (as defined in Rule 13a-15(f) or 15d-15(f), as applicable under the 1934 Act) ("
internal
controls
"). Such internal controls are sufficient to provide reasonable assurance regarding the reliability of the Company's financial reporting and the preparation of the
Company's financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on its most recent evaluation of internal controls prior to the date of this Agreement,
to the Company's auditors and audit committee of the Company's Board of Directors (x) all "significant deficiencies" and "material weaknesses" (as such terms are defined by the Public Company
Accounting Oversight Board) in the design or operation of internal controls which are reasonably likely to adversely affect in any material respect the Company's ability to record, process, summarize
and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company's internal controls. The
Company has made available to Parent prior to the date of this Agreement a summary of any such disclosure made by management to the Company's auditors and audit committee of the Company's Board of
Directors since January 1, 2014.
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(i) There
are no outstanding loans or other extensions of credit including in the form of a personal loan (within the meaning of Section 402 of the Sarbanes-Oxley
Act) made by the Company to any Executive Officer or director of the Company. The Company has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act since January 1,
2014.
(j) Since
January 1, 2014, each of the principal executive officer and principal financial officer of the Company (or each former principal executive officer and
principal financial officer of the Company, as applicable) have made all certifications required by Rule 13a-14 and 15d-14 under the 1934 Act and Sections 302 and 906 of the
Sarbanes-Oxley Act, and the statements contained in any such certifications were, or will be, when made complete and correct.
(k) Since
January 1, 2014, no Executive Officer or director of the Company has received from any former or current auditor, accountant, consultant or representative
of the Company or any Governmental Authority, written notice of, any material complaint or allegation, whether written or oral, that the Company has engaged in material improper accounting practices.
No attorney representing the Company has reported to the current Board of Directors of the Company or any committee thereof or to any current director or Executive Officer of the Company evidence of a
material violation of United States or other securities laws or material breach of fiduciary duty by the Company or any of its officers or directors.
(l) To
the Company's knowledge, no employee of the Company is providing, or since January 1, 2014 has provided, information to any law enforcement agency regarding
any conduct which the employee reasonably believes constitutes a violation of, nor filed, caused to be filed, testified, participated in, or otherwise assisted in a proceeding relating to an alleged
material violation of, chapter 63 of title 18, United States Code, sections 1341, 1343, 1344, or 1348, any rule or regulation of the SEC, or any provision of Federal law relating to
fraud against shareholders as described in Section 806 of the Sarbanes-Oxley Act by the Company.
(m) Except
for such items that are of the type to be set forth in the notes to the consolidated financial statements of the Company, the Company is not a party to any
off-balance sheet contract or other "off-balance sheet arrangements" (as defined in Item 303(a)(4)(ii) of Regulation S-K of the SEC), where the result, purpose or intended effect of such
contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of its Subsidiaries in the Company SEC Documents.
Section 4.08.
Financial Statements.
The consolidated financial statements
(including all related notes and schedules) of the Company included in or incorporated by reference into the Company SEC
Documents (the "
Company Financial Statements
") (i) fairly present in all material respects the consolidated financial position of the Company, as
of the respective dates thereof, and the consolidated results of its operations and its consolidated cash flows for the respective periods then ended, (ii) were prepared in conformity with GAAP
(except, in the case of the unaudited statements, subject to normal year-end audit adjustments and the absence of footnote disclosure) applied on a consistent basis during the periods involved (except
as may be indicated therein or in the notes thereto), and (iii) have been prepared from and are in accordance with, in all material respects, the books and records of the Company and its
Subsidiaries. The books and records of the Company have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As
of the date hereof, Deloitte & Touche LLP has not resigned (or informed the Company that it intends to resign) or been dismissed as independent public accountants of the Company as a
result of or in connection with any disagreements with the Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
Section 4.09.
Disclosure Documents.
The proxy statement of the Company to be filed with the SEC
in connection with the Merger (as it may be amended, supplemented or modified, the
"
Company Proxy Statement/Prospectus
") will comply as to form in all material respects with the applicable
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requirements
of the 1934 Act. The Company Proxy Statement/Prospectus and the information supplied by the Company for use in the registration statement on Form S-4 (as it may be amended,
supplemented or modified, the "
Form S-4
") in which the Company Proxy Statement/Prospectus will be included as a prospectus, at the time the
Form S-4 becomes effective or, in the case of the Company Proxy Statement/Prospectus, at the date of mailing to the Company's stockholders and at the date of the Company Stockholder Meeting (as
reconvened after the date of this Amended and Restated Merger Agreement), will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The representations and warranties contained in this
Section 4.09
will
not apply to statements or omissions included or incorporated by reference in the Company Proxy Statement/Prospectus or the
Form S-4 based upon information supplied by Parent, its Subsidiaries or any of their Representatives specifically for use or incorporation by reference therein.
Section 4.10.
Absence of Certain Changes.
Since the Company Balance Sheet Date until the date
hereof, there has not been any Circumstance that has had, or would reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect. Since the Company Balance Sheet Date (a) the business of the Company and its Subsidiaries has been conducted in the ordinary
course consistent with past practices in all material respects and (b) there has not been any action taken by the Company or any of its Subsidiaries that, if taken during the period from the
date of this Agreement through the Effective Time without Parent's consent, would constitute a breach of
Sections 6.01(a)
,
6.01(b)
,
6.01(c)
or
6.01(d)
.
Section 4.11.
No Undisclosed Material Liabilities.
There are no liabilities or obligations of
the Company or any of its Subsidiaries, of any kind whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, other than (a) liabilities or obligations disclosed and provided for in the Company Balance Sheet or in the notes thereto, (b) liabilities or obligations
incurred in connection with the transactions contemplated by this Agreement, (c) liabilities or obligations that have not had, and would not reasonably be expected to have, individually or in
the aggregate, a Company Material Adverse Effect, (d) liabilities or obligations incurred in the ordinary course of business consistent with past practices since the Company Balance Sheet Date,
and (e) liabilities or obligations not required under GAAP to be disclosed and provided for in a consolidated balance sheet of the Company.
Section 4.12.
Compliance with Laws.
Except with respect to matters that have not had, and would
not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect, the Company (a) is in compliance with, and since January 1, 2014 has been in compliance with, all Applicable Laws, (b) has not received written notice of any violation of
Applicable Laws since January 1, 2014, and (c) is not subject to a pending, or to the knowledge of the Company, threatened investigation by any Governmental Authority with respect to a
violation of Applicable Laws. The Company holds all material federal, state and local governmental licenses, franchises, grants, registrations, clearances, authorizations, permits, consents,
certifications, approvals, variances, exemptions and orders necessary for the Company to own, lease, and operate its properties and assets, and to carry on its business as now conducted (the
"
Company Permits
"), except for those the absence of which has not had, and would not reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect. The Company is and has been in compliance with the terms of the Company Permits, except for failures to comply or violations that have not had, and would not
reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. For the avoidance of doubt, for purposes of this
Section 4.12
, the term "Applicable Laws" shall
include the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of
1973.
Section 4.13.
Litigation.
There is no Proceeding pending against or, to the knowledge of the
Company, threatened against, (a) the Company or any of its Subsidiaries, (b) any
present or former
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officer,
director or employee of the Company or any of its Subsidiaries in their respective capacities as such, (c) any Person for whom the Company or any of its Subsidiaries may be liable with
respect to such Proceeding or (d) any of the Company or its Subsidiaries' assets or properties, before (or, in the case of threatened Proceedings, would be before) any arbitrator or
Governmental Authority, except, in each case, for those Proceedings that have not had, or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
As of the date hereof, there is no Proceeding pending against or, to the knowledge of the Company, threatened against, the Company or any of its Subsidiaries that challenges or seeks to prevent,
enjoin, alter or delay the Merger or any of the other transactions contemplated hereby. There is no judgment, decree, injunction, rule or order of any arbitrator or Governmental Authority outstanding
or, to the knowledge of the Company threatened against, or investigation by any Governmental Authority involving, the Company or any of its Subsidiaries, except for those that have not had or would
not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Section 4.14.
Properties.
(a) The
Company and its Subsidiaries have a good and valid leasehold (or, as applicable, license or other) interest in all leases, subleases and other agreements under which
the Company and its Subsidiaries use or occupy or have the right to use or occupy any real property (such property subject to a lease, sublease or other agreement, the "
Leased
Real Property
" and such leases, subleases and other agreements are, collectively, the "
Real Property Leases
"), in each case,
free and clear of all Liens other than any Permitted Liens.
Section 4.14(a)
of the Company Disclosure Letter sets forth a true, correct and
complete list of all Leased Real Property as of the date hereof. Except as would not be material to the Company and its Subsidiaries, each Real Property Lease (i) is a valid and binding
obligation of the Company or its Subsidiary that is party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect, subject to the Bankruptcy and
Equity Exception, (ii) no uncured default on the part of the Company or its Subsidiaries or the landlord thereunder, exists under any such Real Property Lease, and (iii) no event has
occurred or circumstance exists which, with the giving of notice, the passage of time, or both, would constitute a breach or default under any such Real Property Lease. Neither the Company nor any of
its Subsidiaries has received any written notice of the intention of any other party to a Real Property Lease to terminate for default, convenience or otherwise any Real Property Lease, nor is any
such party, to the knowledge of the Company, threatening to do so. Neither the Company nor any of its Subsidiaries are currently subleasing, licensing or otherwise granting any Person any right to use
or occupy Leased Real Property.
(b)
Section 4.14(b)
of the Company Disclosure Letter sets forth a list, as of the date hereof, of all real property
owned by the Company or any of its Subsidiaries (the "
Company Owned Real Property
"). Except as would not be material to the Company and its
Subsidiaries, the Company and its Subsidiaries have valid and marketable title to the Company Owned Real Property, including all appurtenances thereto and fixtures thereon, free and clear of any and
all Liens except Permitted Liens. Neither the Company nor any of its Subsidiaries is currently leasing, licensing or otherwise granting any Person any right to use or occupy Company Owned Real
Property.
(c) Except
as would not be material to the Company and its Subsidiaries, all buildings, structures, fixtures and improvements included within the Company Owned Real Property
or Leased Real Property (the "
Improvements
") are in good repair and operating condition, subject only to ordinary wear and tear, and are adequate and
suitable for the purposes for which they are presently being used or held for use and there are no facts or conditions affecting any of the Improvements that, in the aggregate, would reasonably be
expected to interfere with the current use, occupancy or operation thereof.
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(d) There
is no pending, or to the knowledge of the Company, threatened proceedings in eminent domain or condemnation against any of the Company Owned Real Property or
Leased Real Property that are material to the Company or its Subsidiaries.
(e)
Section 4.14(e)
of the Company Disclosure Letter sets forth, as of the date of this Agreement (i) all
theatre locations that are scheduled to be closed within the twelve-month period following the date of this Agreement, (ii) all new theatre locations that the Company and its Subsidiaries are
scheduled to open within the twelve-month period following the date of this Agreement, and (iii) all theatre locations that are under renovation or construction (excluding renovations and
construction for any single location that do not exceed Two Hundred Fifty Thousand Dollars ($250,000)), together with the budgeted renovation or construction costs, (iv) the current landlord
and tenant under each Real Property Lease, (v) the lease commencement and expiration date under each Real Property Lease, and (vi) the number of extension periods or extension terms (or,
for the avoidance of doubt, the number of opportunities to extend the term of each Real Property Lease as provided therein) for each Real Property Lease.
(f) True,
correct and complete copies of each Real Property Lease, any amendment thereto and any material agreement between the landlord and tenant or any third party
relating to or impacting the terms and provisions of any Real Property Lease, have been made available to Parent.
(g) In
the event that the term of any Real Property Lease will expire on or prior to February 28, 2017, the Company has provided any notice required pursuant to the
terms and provisions of such Real Property Lease, in such form and containing such content as required under such Real Property Lease, in order to extend the term thereof, such that each Real Property
Lease currently carries the maximum term provided under the Real Property Lease (subject to any subsequent opportunities to extend the term thereof).
(h) Except
as would not be material to the Company and its Subsidiaries, each theatre located on the Leased Real Property or Company Owned Real Property, together with the
related items of personal property located therein, constitutes a fully-operable motion picture theatre, and each such motion picture theatre and related personal property is fit for the use for which
it is intended and to which it is presently devoted.
(i) To
the knowledge of the Company, (i) no petition or application to rezone or otherwise alter or amend the land use regulations affecting the Leased Real Property
or Company Owned Real Property is pending nor threatened, (ii) neither the Company nor any of its Subsidiaries has received any written notice of any violation of Applicable Laws, including
zoning and land use regulations affecting the Leased Real Property or Company Owned Real Property, and there are no present violations of applicable zoning and land use regulations affecting the
Leased Real Property or Company Owned Real Property and (iii) neither the Company nor any of its Subsidiaries has received written notice of any pending improvements, Liens or special
assessments from any Governmental Authority to be made against (A) the Leased Real Property for which the tenant under the Real Property Leases would be responsible or (B) the Company
Owned Real Property for which the Company would be responsible.
Section 4.15.
Intellectual Property.
Except as has not had and would not reasonably be expected
to have, individually or in the aggregate, a Company Material Adverse Effect, (a) the Company
and its Subsidiaries own, or have a valid and enforceable license to use (in each case, free and clear of any Liens except for Permitted Liens), all Intellectual Property used in, or necessary for the
conduct of, its business, including any registrations or patents for Intellectual Property, in each case (i) owned by the Company and any of its Subsidiaries (all of which are valid and
enforceable) or (ii) licensed by the Company and any of its Subsidiaries, (b) to the knowledge of the Company, neither the Company nor any of its Subsidiaries infringe, misappropriate or
otherwise violate the Intellectual Property rights of any Third Party in connection with the conduct of the business of the Company and its Subsidiaries as
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currently
conducted, (c) to the knowledge of the Company, no Person is challenging, infringing, misappropriating or otherwise violating any Intellectual Property rights owned by and/or licensed
to the Company or its Subsidiaries, (d) neither the Company nor any of its Subsidiaries have received since January 1, 2013 any written notice of any pending claim, action, suit, order
or proceeding with respect
to any Intellectual Property owned or used by the Company or its Subsidiaries or alleging that any services provided, processes used or products used, imported, offered for sale or sold by the Company
or its Subsidiaries infringe, misappropriate or otherwise violate any Intellectual Property rights of any Person, (e) the consummation of the transactions contemplated by this Agreement will
not alter, encumber, impair or extinguish any material Intellectual Property right of the Company or its Subsidiaries or impair the right of Parent immediately after the Closing Date to develop, use,
sell, license or dispose of, or to bring any action for the infringement of, any material Intellectual Property right held by the Company or its Subsidiaries immediately before the Closing Date,
(f) the Company and its Subsidiaries take reasonable steps in accordance with normal industry practice to maintain the confidentiality of all material Trade Secrets, owned, used or held for use
by the Company and its Subsidiaries and no such Trade Secrets have been disclosed by the Company or any of its Subsidiaries other than to employees, representatives and agents of the Company or its
Subsidiaries or any Third Party under a confidentiality agreement, and (g) neither the Company nor any of its Subsidiaries have granted any licenses or other use rights, of any kind or nature,
in or to any of the Intellectual Property owned by the Company to any Third Party except as disclosed in the Company Disclosure Letter.
Section 4.16.
Information Technology.
(a) To
the knowledge of the Company, since January 1, 2014, neither the Company nor any of its Subsidiaries have experienced any material disruption to, or material
interruption in, the conduct of the business attributable to a defect, bug, breakdown, unauthorized access, introduction of a virus or other malicious programming, or other material failure or
material deficiency on the part of any computer software or computer equipment of the IT Assets used by the Company or its Subsidiaries.
(b) The
material IT Assets are reasonably sufficient for the needs of the business of the Company and its Subsidiaries as currently conducted, including as to capacity,
scalability and ability to process current and anticipated peak volumes in a timely manner. The material IT Assets are in good working condition to effectively perform the information technology
operations necessary for the needs of the business of the Company and its Subsidiaries as currently conducted. All material IT Assets, other than software, outsourced services and hosted systems
(including web sites), used in the conduct of the business by the Company and its Subsidiaries as currently conducted are owned and operated by or are under the control of the Company and its
Subsidiaries and are not wholly or partly dependent on any facilities which are not under the ownership, operation or control of the Company and its Subsidiaries.
(c) The
Company and its Subsidiaries implement commercially reasonable backup and disaster recovery plans and systems consistent with industry practices applicable to the
business of the Company and its Subsidiaries as currently conducted.
Section 4.17.
Data Protection.
(a) Except
as would not be material to the Company and its Subsidiaries, the Company and its Subsidiaries have complied with all Applicable Laws and contractual obligations
relating to the protection and security of Personal Data (as defined below) to which Company and its Subsidiaries are currently or have been subject. Neither the Company nor any of its Subsidiaries
have received any written inquiries from or been subject to any audit or other proceeding by any Governmental Authority regarding its compliance with the foregoing. The Company and its Subsidiaries
have established policies, programs and procedures with respect to the collection, use, processing, storage and transfer of all personally identifiable or confidential information relating to
individuals in connection with the business (collectively, "
Personal Data
").
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(b) The
Company and its Subsidiaries have complied in all material respects with all rules, policies and procedures established by the Company and its Subsidiaries with
respect to privacy, publicity, data protection or collection and use of Personal Data gathered or accessed in the course of the operations of the Company and its Subsidiaries and there have not been
any incidents of (i) a material violation by Company or any of its Subsidiaries of any Person's privacy, personal or confidentiality rights under any such rules, policies or procedures or
(ii) any material breach, material misappropriation, or material unauthorized disclosure, intrusion, access, use or dissemination of any Personal Data asserted or, to the knowledge of the
Company, threatened against the Company or its Subsidiaries by any Person. To the knowledge of the Company, the Company and its Subsidiaries have taken commercially reasonable steps (including
implementing and monitoring compliance with adequate measures with respect to technical and physical security) to reasonably ensure that any Personal Data collected by the Company and its Subsidiaries
is protected against loss and against unauthorized access, use, modification, disclosure or other misuse.
Section 4.18.
Taxes.
Except as would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect:
(a) (i)
All material income and franchise Tax Returns required by Applicable Law to be filed with any Taxing Authority by, or on behalf of, the Company or any of its
Subsidiaries have been filed when due (taking into account extensions) in accordance with Applicable Law, and all such material Tax Returns were, at the time of filing, accurate in all material
respects, and (ii) each of the Company and its Subsidiaries has paid (or has had paid on its behalf) all Taxes shown as due and payable on the income and franchise Tax Returns that have been
filed, except for any such Taxes (x) contested in good faith or (y) for which adequate reserves have been established under GAAP.
(b) As
of the date hereof, there is no claim, audit, action, suit or proceeding now pending or threatened in writing, by any Taxing Authority against the Company or its
Subsidiaries in respect of any material Tax.
(c) During
the two-year period ending on the date hereof, neither the Company nor any of its Subsidiaries was a "distributing corporation" or a "controlled corporation" in a
transaction intended to be governed by Section 355 of the Code.
(d) The
Company will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or
portion thereof) ending after the Effective Time as a result of any (i) "closing agreement" as described in Section 7121 of the Code (or any corresponding or similar provision of state,
local or non-U.S. income Tax law) executed on or prior to the Effective Time, (ii) installment sale or open transaction disposition made on or prior to the Effective Time, (iii) prepaid
amount received on or prior to the Effective Time, (iv) intercompany item under Treasury Regulation Section 1.1502-13, or (v) change in accounting method for a taxable period
ending on or before the Effective Time.
(e) The
Company has not requested, received or executed with any Taxing Authority any ruling or binding agreement which could have a material effect in a post-Closing
period.
(f) No
claim has been made in writing by any Taxing Authority in a jurisdiction where the Company and/or the Company's Subsidiaries do not file Tax Returns that the Company
or any of its Subsidiaries is or may be subject to taxation by, or required to file any Tax Return in, that jurisdiction.
(g) Neither
the Company nor any of its Subsidiaries is a party to any Tax Sharing Agreement.
(h) Neither
the Company nor any of its Subsidiaries have a permanent establishment in any foreign country.
(i) Neither
the Company nor any of its Subsidiaries is or has been a party to any "reportable transaction," as defined in Section 6707A(c)(1) of the Code and Treasury
Regulations Section 1.6011-4(b)(1).
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Section 4.19.
Employee Benefit Plans
.
(a)
Section 4.19(a)
of the Company Disclosure Letter contains a correct and complete list identifying each material
Company Employee Plan. Copies of such plans and all material amendments thereto and written interpretations thereof, any related trusts, funding agreements, or insurance contracts, summary plan
descriptions, the most recent determination letters, the most recent request for determination letter and any correspondence with the IRS related thereto and summaries of material modifications,
administrative service agreements, the three (3) most recent annual reports (Form 5500 including, if applicable, Schedule B thereto) and Tax returns (Form 990) prepared in
connection with any such plan or trust, the most recent determination letter from the Internal Revenue Service related to any Company Employee Plan as well as all correspondence related to the most
recent request therefore (including forms, enclosures and attachments), and any correspondence to or from the Internal Revenue Service or Department of Labor related to any Company Employee Plan
during the last three (3) years (or earlier if such correspondence currently has any bearing on plan administration or obligations related to the plan), if any, have been furnished or made
available to Parent.
(b) Except
to the extent that any breach of any of the following representations would not be material to the Company and its Subsidiaries:
(i) No
Company Employee Plan is covered by Title IV of ERISA or is subject to Section 412 of the Code or Section 302 of ERISA. Neither the Company nor any
ERISA Affiliate has ever maintained or contributed to, or had any obligation to contribute to any "multiple employer plan" (within the meaning of the Code or ERISA), any "multiemployer plan" (within
the meaning of Section 3(37) of ERISA) or any plan that is or was subject to Title IV of ERISA. The Company has never been a member of a controlled group which contributed to any such plan, and
the Company has never been under common control with an employer which contributed to any such plan.
(ii) Each
Company Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or opinion letter, or
has pending or has time remaining in which to file, an application for such determination or opinion from the Internal Revenue Service, and the Company is not aware of any reason why any such
determination letter or opinion letter should be revoked or not be reissued.
(iii) Each
Company Employee Plan has been maintained in compliance with its terms and with the requirements prescribed by all legal requirements (including statutes and
regulations, such as ERISA and the Code), which are applicable to such Company Employee Plan, and each Company Employee Plan that is a "nonqualified deferred compensation plan" within the meaning of
Section 409A of the Code has been written, operated and administered in a manner so as not to have resulted in, and so as not to result in the future in, any adverse consequences to any
participant or beneficiary related to Section 409A of the Code and any proposed and final guidance thereunder. No claim (other than routine claims for benefits), action, suit or proceeding
(including an audit) is pending against or involves or, to the Company's knowledge, is threatened against or reasonably expected to involve, any Company Employee Plan. No events have occurred with
respect to any Company Employee Plan that could result in payment or assessment by or against the Company of any material excise Taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D,
4980E, 4980H or 5000 of the Code. Each Company Employee Plan and related funding instrument is legal, valid and binding and in full force and effect, and there are no defaults thereunder. None of the
rights of the Company thereunder will be impaired by the consummation of the transactions contemplated by this Agreement, and all of the rights of the Company thereunder will be enforceable by Parent
at or after the Closing without the consent or agreement of any other party. All contributions to the Company Employee Plans have been made on a timely basis in accordance with ERISA and the Code. All
insurance premiums have been paid in full,
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subject
only to normal retrospective adjustments in the ordinary course, with regard to the Company Employee Plans for policy years or other applicable policy periods ending on or before the Closing
Date, and all insurance premiums have been timely paid in full for the payroll period during which the Closing Date occurs.
(iv) The
consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (A) entitle any Company Employee to
any payment or benefit, including any bonus, retention or severance benefit, (B) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or
otherwise) of compensation or benefits under, or increase the amount payable or trigger any other material obligation under, any Company Employee Plan, or (C) limit or restrict the right of the
Company or any of its Subsidiaries or, after the Effective Time, Parent, to merge, amend or terminate any Company Employee Plan, (D) give rise to the payment of any amount pursuant to any
contract or agreement (written or otherwise) under any Company Employee Plan that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code or give rise to taxable
income to any individual under Code Section 105(h) or other similar statute.
Section 4.19(b)(iv)
of the Company Disclosure Letter includes
the individual amounts for each individual with respect to each Code Section identified as an exception to this representation assuming the Merger were to close on or before December 31, 2016.
(v)
Section 4.19(b)(v)
of the Company Disclosure Letter, if applicable, lists (i) all the agreements,
arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the current or former employees, including officers, directors, or
independent contractors of the Company as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and
complete copies of which have been furnished or made available to Parent prior to the date of this Agreement and (ii) the maximum aggregate amounts so payable or benefits conferred to each
named "executive officer" and the aggregate amount payable, by category, to senior vice presidents and vice presidents, as a group, as a result of the transactions contemplated by this Agreement
and/or any subsequent employment termination (whether by the Company or the officer).
(vi) The
Company has no liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company except as
required to avoid excise Tax under Section 4980B of the Code or applicable state law.
(vii) There
has been no amendment to or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation or
coverage under, an Company Employee Plan which would increase materially the expense of maintaining such Company Employee
Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 31, 2015. No condition exists that would prevent the Company (or Parent after the Closing)
from amending or terminating any Company Employee Plan without liability, other than the obligation for benefits accrued prior to the termination of such plan.
(viii) The
Company nor any of its respective directors, officers, employees, or any plan fiduciary has any liability for failure to comply with applicable laws, including
ERISA, HIPAA, COBRA or the Code, for any action or failure to act in connection with any Company Employee Plan, including with respect to the administration or investment thereof. The Company has no
liability by virtue of being a member of a controlled group with a Person who has liability under the Code or ERISA. The Company has not terminated or taken action to terminate (in part or in whole)
any employee benefit plans as defined in ERISA Section 3(3).
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Section 4.20.
Labor and Employment
.
(a) The
Company and the Subsidiaries are in compliance with all Applicable Laws relating to employment and employment practices, including those relating to wages, hours,
leaves of absence, collective bargaining, unemployment compensation, workers' compensation, equal employment opportunity, age and disability discrimination, whistleblower and other retaliation
protecting immigration compliance and control, employee classification, information privacy and security, payment and withholding of Taxes, and continuation coverage with respect to group health plans
except where the failure to so comply has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor any of its
Subsidiaries is a party to, or otherwise bound by, any consent decree with any Governmental Authority relating to employees or employment practices. Neither the Company nor any of its Subsidiaries has
received since January 1, 2014 a claim from any Governmental Authority or Third Party to the effect that the Company or any Subsidiary has misclassified, and the Company and its Subsidiaries
have not misclassified, any Person as (i) an independent contractor rather than as an employee or (ii) an employee exempt from state, federal, provincial or other applicable overtime
regulations, except where misclassification of such Person has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b) Neither
the Company nor any of its Subsidiaries is a party to, or otherwise bound by, any collective bargaining agreement, contract or other agreement or understanding
with a labor union or labor organization (a "
Collective Bargaining Agreement
"). Neither the Company nor any of its Subsidiaries is subject to any
charge, demand, petition or representation proceeding seeking to compel, require or demand it to bargain with any labor union or labor organization nor is there pending or, to the knowledge of the
Company, threatened, any labor strike, dispute or lockout involving the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has engaged in any unfair labor practice
with respect to any Persons employed by or otherwise performing services primarily for the Company or any of its Subsidiaries, and there is no unfair labor practice complaint or grievance against the
Company or any of its Subsidiaries by the National Labor Relations Board or any comparable state agency pending or, to the knowledge of the Company, threatened in writing with respect to employees of
the Company or its Subsidiaries.
(c) The
Company and its Subsidiaries are in compliance with all Applicable Laws relating to worker health and safety, except where the failure to so comply has not had, and
would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(d) Since
January 1, 2014, neither the Company nor any of its Subsidiaries has effectuated (i) a "plant closing" (as defined in the Worker Adjustment and
Retraining Notification Act, as amended (the "
WARN Act
")), or (ii) a "mass layoff" (as defined in the WARN Act); nor has the Company or any of
its Subsidiaries engaged in layoffs or employment terminations sufficient in number to trigger application of any state, local or foreign Law or regulation similar to the WARN Act.
Section 4.21.
Environmental Matters
.
(a) Except
to the extent that such matter has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(i) no notice, notification, demand, request for information, citation, summons, or order has been received by the Company or its Subsidiaries and no complaint has been filed, no penalty has
been assessed, and no investigation, action, claim, suit, proceeding, or review is pending, unresolved in any respect or, to the knowledge of the Company, is threatened by any Governmental Authority
or other Person, in each case relating to the Company or its Subsidiaries and relating to or arising out of any Environmental Law; (ii) the business and operations of the Company and its
Subsidiaries are, and since January 1, 2011 have at all times been, in material compliance with all Environmental Laws and all Environmental Permits; (iii) the Company and its
Subsidiaries have all Environmental Permits necessary for the conduct of
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their
operations, each Environmental Permit is in full force and effect and is final with all administrative and statutory appeal periods having expired, and all required applications for renewal or
reissuance of such Environmental Permits have been timely filed; (iv) there has been no Release that the Company or its Subsidiaries have been or would be obligated to investigate, remove,
remediate, or otherwise respond to or pay any part of the costs of response pursuant to any Environmental Law or any contract entered into with any other Person, or that would result in a material
liability to the Company or one of its Subsidiaries; (v) during the term of the Company's ownership or operation of any facility or property now or to the knowledge of the Company previously
owned, leased, or operated by the Company or its Subsidiaries, there are and have been no underground storage tanks or related piping on, in, beneath or emanating from or to any facility or property
now or to the knowledge of the Company previously owned, leased, or operated by the Company or its Subsidiaries; and (vi) to the knowledge of the Company no new expenditure will be required in
order for Parent or the Merger Subsidiary to comply or continue to comply with any Environmental Laws in effect at the time of the Closing in connection with the operation or continued operation of
the Surviving Corporation or any facility or property now owned or operated by the Company in a manner consistent with the current operation thereof by the Company.
(b) Since
January 1, 2011, there has been no environmental investigation, study, audit, test, review, assessment, or other analysis conducted by the Company, in
relation to the current or prior business of the Company or its Subsidiaries or any property or facility now or previously owned, leased, or operated by the Company during the period since
January 1, 2011 to identify actual or potential liabilities or obligations of the Company or its Subsidiaries arising under or relating to any Environmental Law or Hazardous Substance or the
presence of mold, that has not been made available to Parent prior to the date of this Agreement.
(c) For
purposes of this Section, the term "Company" shall include any entity that is, in whole or in part, a predecessor of the Company and any Subsidiaries of such
predecessor.
Section 4.22.
Material Contracts
.
(a) As
of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by:
(i) any
"material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC, other than any Company Employee Plan);
(ii) any
material contract with any director, officer or Affiliate of the Company or any of its Subsidiaries (other than employment agreements and indemnification
agreements);
(iii) any
contract containing any provision or covenant that imposes any material restriction on the right or ability of the Company or any Subsidiaries to
(A) compete with any other Person, (B) solicit any client or customer, or (C) acquire or dispose of the securities of another Person, or any other provision that materially
restricts the conduct of any line of business by the Company or any Subsidiaries;
(iv) any
contract or series of contracts that (A) is expected to result in the payment of more than Two Hundred Fifty Thousand Dollars ($250,000) by the Company or
any Subsidiaries in the fiscal year ending December 31, 2016 or the fiscal year ending December 31, 2017, or (B) obligates the Company or its Subsidiaries to conduct business with
any Third Party on an exclusive basis; and with respect to contracts responsive to (A) or (B) that require consent of or notice to a Third Party in connection with the Merger or the
transaction contemplated under this Agreement;
(v) any
contract that contains a "most favored nation" provision;
(vi) any
Collective Bargaining Agreement;
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(vii) any
agreement relating to indebtedness of the Company or any of its Subsidiaries having an outstanding principal amount in excess of Two Hundred Thousand Dollars
($200,000);
(viii) any
contract that grants any right of first refusal, right of first offer or similar right with respect to any securities, material assets, material rights or
material properties of the Company or any Subsidiary;
(ix) any
contract or series of contracts that provides for the acquisition or disposition of any material business (whether by merger, sale of stock, sale of assets or
otherwise) and with any outstanding material obligations as of the date of this Agreement;
(x) any
material joint venture, partnership or limited liability company agreement or other similar contract; and
(xi) any
contract limiting or restricting the ability of the Company or any Subsidiary (A) to make distributions or declare or pay dividends in respect of their
capital stock, partnership interests, membership interests or other equity interests, as the case may be, (B) to redeem or repurchase any capital stock, partnership interests, membership
interests or other equity interests, (C) to make loans or (D) to grant Liens on the property of the Company or any of its Subsidiaries;
(xii) any
contract that obligates the Company or any Subsidiary to make any loans, advances or capital contributions to, or investments in excess of Two Hundred Fifty
Thousand Dollars ($250,000) in, any Person (other than the Company);
(xiii) any
contract (A) granting the Company or any of its Subsidiaries a license to use any Intellectual Property (other than commercially available software
licenses with annual fees of less than One Hundred Thousand Dollars ($100,000)), (B) permitting any Third Party to use, enforce or register any Intellectual Property owned by the Company,
including any license agreements, coexistence agreements and covenants not to sue (other than non-exclusive licenses to customers and suppliers in the ordinary course of business) or
(C) restricting the right of the Company or any of its Subsidiaries to use or register any Intellectual Property owned by the Company or any of its Subsidiaries (other than any of the contracts
identified in
Section 4.22(a)(iii)
of the Company Disclosure Letter);
(xiv) any
contract for on-screen advertising and internet ticketing agreement;
(xv) any
agreement governing any licensed or franchised business operated at any theatre owned or operated by the Company or any of its Subsidiaries;
(xvi) any
contract that involved the receipt of more than Five Hundred Thousand Dollars ($500,000) by the Company or any of its Subsidiaries in the fiscal year ending
December 31, 2015 or that is expected to result in the receipt of such amount by the Company or any of its Subsidiaries in the fiscal year ending December 31, 2016;
(xvii) any
contract obligating the Company or any of its Subsidiaries not to acquire assets or securities of a Third Party (excluding standstill agreements that will expire
prior to January 31, 2017) or agreements by a Third Party not to acquire assets or securities of the Company (excluding standstill agreements); or
(xviii) any
contract guaranteeing the performance of any Third Party in excess of Two Hundred Fifty Thousand Dollars ($250,000).
All
contracts of the types referred to in clauses (i) through (xviii) above (whether or not set forth on
Section 4.22
of the
Company Disclosure Letter) are referred to herein as a "
Company Material Contract
." The Company has made available to Parent prior to the date of this
Agreement a complete and correct copy of each Company Material Contract (including all amendments, modifications,
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extensions,
and renewals thereto and waivers thereunder) as in effect on the date of this Agreement (subject to any redaction of information contained therein reasonably deemed necessary or
appropriate by the Company in order to comply with any applicable antitrust law or any applicable confidentiality provision).
(b) Except
as would not be material to the Company and its Subsidiaries, (i) neither the Company nor any of its Subsidiaries is in breach of, or default under, any
Company Material Contract and, to the knowledge of the Company, no other party to any Company Material Contract is in breach of, or default under, any Company Material Contract, (ii) no event
has occurred that with notice or the lapse of time or both would constitute a breach of or default under any Company Material Contract, (iii) each Company Material Contract is a valid and
binding obligation of the Company or its Subsidiary, as applicable, and, to the knowledge of the Company, of each other party thereto, subject to the Bankruptcy and Equity Exception, and
(iv) each Company Material Contract is in full force and effect. There are no disputes pending or, to the knowledge of the Company, threatened with respect to any Company Material Contract and
neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to a Company Material Contract to terminate for default, convenience or otherwise
any Company Material Contract nor, to the knowledge of the Company, is any such party threatening to do so, in each case except as would not be material to the Company and its Subsidiaries.
Section 4.23.
Food and Beverage Inventories
.
All inventory, packaging, supplies, food, beverages, concessions, and other inventories located at any theatre owned or operated by the Company or any of its Subsidiaries (the
"
Inventories
") (a) are, in all material respects, accurately valued and properly reflected on the Company Financial Statements consistent with
past practices, (b) consist, in all material respects, of items of a quality, quantity and condition useable and saleable in the ordinary course of business consistent with past practices,
(c) were acquired and have been maintained in all material respects in the ordinary course of business consistent with past practices, and (d) are not subject to any material write-down
or write-off.
Section 4.24.
Goodwill Passes; Prepaid Tickets.
All
unexpired and outstanding (a) tickets sold to consumers entitling the holder thereof to admission and (b) motion picture theatre admission tickets, gift cards, or gift
certificates which have been purchased by and which entitle such ticketholders to admission without any further consideration or at a discount after the Closing Date are appropriately reflected in the
Company's books and records in all material respects and managed in material compliance with all Applicable Laws.
Section 4.25.
Insurance
.
Section 4.25
of the Company Disclosure Letter sets forth a correct and complete list of all of the material insurance policies of
the Company and its Subsidiaries currently in effect (the "
Insurance Policies
"). Except as would not be material to the Company and its Subsidiaries,
(a) all such Insurance Policies are legal, valid, binding and enforceable in accordance with their terms and in full force and effect, (b) all premiums due and payable thereunder have
been paid, (c) neither the Company nor any of its Subsidiaries is in breach or default thereunder (including any such breach or default with respect to the payment of premiums or the giving of
notice), and (d) neither the Company nor any of its Subsidiaries has taken any action or failed to take any action which, with notice or the lapse of time, would constitute such a breach or
default of thereunder or permit termination or modification thereof. Neither the Company nor any of its Subsidiaries has received any written notice of cancellation or termination with respect to any
such Insurance Policy of the Company or any of its Subsidiaries.
Section 4.25
of the Company Disclosure Letter sets forth a list of all
(i) material claims made under any of the Insurance Policies since January 1, 2014 and (ii) material open claims under any of the Insurance Policies. The Company has previously
made available to Parent true, correct and complete copies of each Insurance Policy.
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Section 4.26.
Finders' Fees
.
Except for J.P. Morgan Securities LLC, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of the
Company or any of its Subsidiaries who will be entitled to any fee or commission from the Company or any of its Affiliates in connection with the Merger.
Section 4.27.
Opinion of Financial Advisor
.
The Company has received the verbal opinion (to be confirmed in writing) of J.P. Morgan Securities LLC, financial advisor to the Company, to the effect that, as of the date of
this Amended and Restated Merger Agreement and subject to the limitations, qualifications and assumptions set forth therein, the Merger Consideration is fair to the Company's stockholders from a
financial point of view. The Company has been authorized by J.P. Morgan Securities LLC to include its written opinion in its entirety in the Form S-4.
Section 4.28.
Antitakeover Statutes
.
Assuming the accuracy of the representations and warranties in
Section 5.19,
(a) the Company has taken all action necessary
such that the restrictions on "business combinations" in Section 203 of the Delaware General Corporation Law do not apply to the Merger, this Agreement or the transactions contemplated hereby,
and (b) no other "fair price," "moratorium," "control share acquisition," or other anti-takeover statute or regulation enacted under U.S. state or federal law applies to the Merger, this
Agreement or the transactions contemplated thereby.
Section 4.29.
Amended and Restated Merger Agreement
.
Assuming the accuracy and completeness of the representation and warranty in
Section 5.19,
the execution, delivery and performance
by the Company of this Amended and Restated Merger Agreement and the consummation by the Company of the transactions contemplated by this Agreement are within the Company's corporate power and
authority and, except for the required approval of the Company's stockholders in connection with the consummation of the Merger, have been duly authorized by all necessary corporate action on the part
of the Company. Assuming the accuracy and completeness of the representation and warranty in
Section 5.19,
the Company Stockholder Approval is
the only vote of the holders of any of the Company's capital stock necessary in connection with the consummation of the Merger. Assuming the accuracy and completeness of the representation and
warranty in
Section 5.19,
subject to the receipt of the Company Stockholder Approval, this Agreement constitutes a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms, subject to the Bankruptcy and Equity Exception.
Section 4.30.
Non-Reliance on Parent Estimates, Projections, Forecasts, Forward-Looking Statements and Business Plans
.
In connection with the due diligence investigation of Parent by the Company, the Company has received and may continue to receive from Parent certain estimates, projections, forecasts
and other forward-looking information, as well as certain business plan information, regarding Parent and its business and operations. The Company hereby acknowledges that there are uncertainties
inherent in attempting to make such estimates, projections, forecasts and other forward-looking statements, as well as in such business plans, with which the Company is familiar, that the Company is
taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections, forecasts and other forward-looking information, as well as such business plans, so
furnished to it (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, forward-looking information or business plans), and that the Company will have no
claim, right or obligation under this Agreement or otherwise (including under
Article 9
) against Parent or any of its Subsidiaries, or any of
their respective Representatives, or any other Person, with respect thereto. Accordingly, the Company hereby acknowledges that none of Parent nor any of its Subsidiaries, nor any of their respective
Representatives, nor any other Person, has made or is making any representation or warranty with respect to such estimates, projections, forecasts, forward-looking statements or business plans
(including the reasonableness of the assumptions underlying such estimates, projections, forecasts, forward-looking statements or business plans).
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARENT
Subject
to
Section 11.05
, except as Previously Disclosed by Parent, Parent represents and warrants to the Company that:
Section 5.01.
Corporate Existence and Power
.
Each of Parent and Merger Subsidiary is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all corporate
power and authority required to carry on its business as now conducted, except for any failure to be so organized, existing and in good standing as, and to have corporate power and authority the
absence of which, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. Parent is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified or in good standing, has not had, and
would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. Since the date of its incorporation, Merger Subsidiary has not engaged in any activities
other than in connection with or as contemplated by this Agreement. Merger Subsidiary was incorporated solely for the purpose of consummating the Merger and the transactions contemplated by this
Agreement. All of the outstanding shares of capital stock of Merger Subsidiary have been validly issued, are fully paid and nonassessable and are owned by, and at the Effective Time will be owned by a
subsidiary of Parent, free and clear of all Liens.
Section 5.02.
Corporate Authorization
.
The execution, delivery and performance by Parent and Merger Subsidiary of the Original Merger Agreement and the consummation by Parent and Merger Subsidiary of the transactions
contemplated thereby are within the corporate power and authority of Parent and Merger Subsidiary and have been duly authorized by all necessary corporate action of Parent and Merger Subsidiary other
than the adoption of the Original Merger Agreement by the sole stockholder of Merger Subsidiary, which Parent caused to take place within twenty-four (24) hours of the signing of the Original
Merger Agreement. The Original Merger Agreement constitutes a valid and binding agreement of each of Parent and Merger Subsidiary enforceable against Parent and the Merger Subsidiary in accordance
with its terms, subject to the Bankruptcy and Equity Exception. No vote of the holders of shares of Parent Class A Common Stock, Parent Class B Common Stock or any other shares of
Parent's capital stock is necessary to consummate the Merger and the other transactions contemplated by the Original Merger Agreement.
Section 5.03.
Governmental Authorization
.
The execution, delivery and performance by Parent and Merger Subsidiary of this Agreement and the consummation by Parent and Merger Subsidiary of the transactions contemplated hereby
require no action by or in respect of, or filing by Parent or Merger Subsidiary with, any Governmental Authority, other than (a) the filing of a certificate of merger with respect to the Merger
with the Delaware Secretary of State and appropriate documents with the relevant authorities of other states in which Parent is qualified to do business, (b) compliance with any applicable
requirements of the HSR Act and of laws analogous to the HSR Act existing in foreign jurisdictions, (c) compliance with any applicable requirements of the 1933 Act, the 1934 Act, any other
state or federal securities laws and the rules and regulations of the NYSE and (d) any actions or filings the absence of which would not reasonably be expected to have, individually or in the
aggregate, a Parent Material Adverse Effect. Assuming the accuracy of the representation and warranty of the Company contained in the last sentence of
Section 4.03
, neither Parent nor any of its
Affiliates nor any Wanda Group Party is required to take any action in respect of, make any filing
with, or obtain any approval from, any Governmental Authority in the PRC prior to Closing in connection with the execution, delivery and performance by Parent and Merger Subsidiary of this Agreement
or the consummation by Parent and Merger Subsidiary of the transactions contemplated hereby, including (i) the NDRC, (ii) the MOFCOM or (iii) SAFE. Neither Parent nor any of its
Affiliates is obtaining from any Wanda Group Party any financing or the benefit of any guarantees, in each case, in connection with or relating to the transactions contemplated by this Agreement.
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Section 5.04.
Non-contravention
.
The execution, delivery and performance by Parent and Merger Subsidiary of this Agreement and the consummation by Parent and Merger Subsidiary of the transactions contemplated hereby do
not and will not (a) contravene, conflict with, or result in any violation or breach of any provision of the certificate of incorporation or bylaws of Parent or Merger Subsidiary,
(b) assuming compliance with the matters referred to in
Section 5.03
, contravene, conflict with or result in a violation or breach of any
Applicable Law, (c) assuming compliance with the matters referred to in
Section 5.03
, require any consent or other action by any Person
under, constitute a default under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which Parent or any of its
Subsidiaries is entitled under any provision of any agreement or other instrument binding upon Parent or any of its Subsidiaries or (d) result in the creation or imposition of any Lien on any
asset of Parent or any of its Subsidiaries, with only such exceptions, in the case of each of clauses (b) through (d), as would not reasonably be expected to have, individually or in the
aggregate, a Parent Material Adverse Effect.
Section 5.05.
Capitalization.
(a) The
authorized capital stock of Parent consists of 650,000,000 shares of capital stock, consisting of (i) 524,173,073 shares of Parent Class A Common
Stock, (ii) 75,826,927 shares of Parent Class B Common Stock and (iii) 50,000,000 shares of preferred stock, par value $0.01 per share ("
Parent Preferred
Shares
"). As of July 22, 2016, there were outstanding: (i) 21,650,301 shares of Parent Class A Common Stock, (ii) 75,826,927 shares of Parent
Class B Common Stock, (iii) no Parent Preferred Shares, (iv) 753,447 Parent vested restricted stock units and (v) 615,207 Parent unvested restricted stock units assuming
such units were to vest at 100% of the applicable service and performance targets. All outstanding shares of capital stock of Parent have been, and all shares that may be issued pursuant to any grant
of Parent restricted stock units and Parent performance stock units will be, duly authorized and validly issued and fully paid. All of the shares of Parent Class A Common Stock issuable upon
conversion of Company Stock at the Effective Time in accordance with this Agreement will be, when so issued, duly authorized, validly issued, fully paid and nonassessable and free of preemptive
rights.
(b) Except
as set forth in
Section 5.05(a)
of this Agreement, there are no issued, reserved for issuance or
outstanding: (i) shares of capital stock or other voting securities or ownership interests in Parent, (ii) securities of Parent convertible into or exchangeable for shares of capital
stock or other voting securities of or ownership interests in Parent, (iii) warrants, calls, options or other rights to acquire from Parent, or other obligations of Parent to issue, any capital
stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of Parent or (iv) restricted shares, stock appreciation rights, performance units,
contingent value rights, "phantom" stock or similar securities or rights, in each case issued by Parent, that are derivative of, or provide economic benefits based, directly or indirectly, on the
value or price of, any capital stock or voting securities of Parent (the items in clauses (i) through (iv) being referred to collectively as the "
Parent
Securities
"). There are no outstanding obligations of Parent or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Parent Securities.
Section 5.06.
Subsidiaries.
(a) Each
Subsidiary of Parent has been duly organized, is validly existing and (where applicable) in good standing under the laws of its jurisdiction of organization, and
has all organizational power and authority required to carry on its business as now conducted, except for any failure to be so organized, existing and in good standing as, and to have power and
authority as, the absence of which, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. Each such Subsidiary is duly
qualified to do business as a foreign entity and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified or in
good standing has not had, and would not reasonably be expected to
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have,
individually or in the aggregate, a Parent Material Adverse Effect. All material Subsidiaries of Parent and their respective jurisdictions of organization are identified in the Parent 10-K.
(b) All
of the outstanding capital stock or other voting securities of, or ownership interests in, each Subsidiary of Parent is owned by Parent, directly or indirectly, free
and clear of any material Lien. As of July 22, 2016, there were no issued, reserved for issuance or outstanding (i) securities of Parent or any of its Subsidiaries convertible into, or
exchangeable for, shares of capital stock or other voting securities of, or ownership interests in, any Subsidiary of Parent, (ii) warrants, calls, options or other rights to acquire from
Parent or any of its Subsidiaries, or other obligations of Parent or any of its Subsidiaries to issue, any capital stock or other voting securities of, or ownership interests in, or any securities
convertible into, or exchangeable for, any capital stock or other voting securities of, or ownership interests in, any Subsidiary of Parent or (iii) restricted shares, stock appreciation
rights, performance units, contingent value rights, "phantom" stock or similar securities or rights, in each case issued by Parent or any Subsidiary, that are derivative of, or provide economic
benefits based, directly or indirectly, on the value or price of, any capital stock or other voting securities of, or ownership interests in, any Subsidiary of Parent (the items in clauses (i)
through (iii) being referred to collectively as the "
Parent Subsidiary Securities"
). There are no outstanding obligations of Parent or any of its
Subsidiaries to repurchase, redeem or otherwise acquire any of the Parent Subsidiary Securities.
Section 5.07.
SEC Filings.
(a) Parent
has filed with or furnished to the SEC all Parent SEC Documents.
(b) As
of its filing date (and as of the date of any amendment), each Parent SEC Document complied, and each Parent SEC Document filed subsequent to the date of this Amended
and Restated Merger Agreement will comply, in all material respects with the applicable requirements of the 1933 Act and the 1934 Act, as the case may be.
(c) As
of their respective filing dates (or, if amended or superseded by a filing prior to the date of this Amended and Restated Merger Agreement, on the date of such
filing), except as may have been corrected by any subsequent filing prior to the date of this Amended and Restated Merger Agreement, the Parent SEC Documents filed pursuant to the 1934 Act did not,
and the Parent SEC Documents filed subsequent to the date of this Amended and Restated Merger Agreement will not, contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(d) Except
as may have been corrected by any subsequent filing, each Parent SEC Document that is a registration statement, as amended or supplemented, if applicable, filed
pursuant to the 1933 Act, as of the date such registration statement or amendment became effective, did not contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading.
(e) As
of the date of this Amended and Restated Merger Agreement, there are no outstanding or unresolved comments received from the SEC with respect to the Parent SEC
Documents. To Parent's knowledge, as of the date of this Amended and Restated Merger Agreement, none of the Parent SEC Documents is the subject of any ongoing SEC review or investigation.
(f) Parent
has complied in all material respects with (i) all current listing and corporate governance rules and regulations of the NYSE and (ii) all rules,
regulations and requirements of the Sarbanes-Oxley Act.
(g) Parent
maintains disclosure controls and procedures required by Rule 13a-15(e) or 15d-15(e) under the 1934 Act. Such disclosure controls and procedures are
reasonably designed to ensure that material information required to be disclosed by Parent is made known to Parent's principal executive officer and principal financial officer by others within
Parent. Such disclosure controls and procedures
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are
reasonably effective in timely alerting Parent's principal executive officer and principal financial officer to material information required to be included in Parent's periodic and current
reports required under the 1934 Act. For the purposes of this Agreement, "principal executive officer" and "principal financial officer" shall have the meanings given to such terms in the
Sarbanes-Oxley Act.
(h) Since
January 1, 2014, Parent, under the supervision of its principal executive officer and principal financial officer, has established and maintained a system
of internal controls. Such internal controls are sufficient to provide reasonable assurance regarding the reliability of Parent's financial reporting and the preparation of Parent's financial
statements for external purposes in accordance with GAAP. Parent has disclosed, based on its most recent evaluation of internal controls prior to the date of this Amended and Restated Merger
Agreement, to Parent's auditors and audit committee of Parent's Board of Directors (x) all "significant deficiencies" and "material weaknesses" (as such terms are defined by the Public Company
Accounting Oversight Board) in the design or operation of internal controls which are reasonably likely to adversely affect in any material respect Parent's ability to record, process, summarize and
report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in Parent's internal controls. Parent has made
available to Parent prior to the date of this Amended and Restated Merger a summary of any such disclosure made by management to Parent's auditors and audit committee of Parent's Board of Directors
since January 1, 2014.
(i) There
are no outstanding loans or other extensions of credit including in the form of a personal loan (within the meaning of Section 402 of the Sarbanes-Oxley
Act) made by Parent to any Executive Officer or director of Parent. Parent has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act since January 1, 2014.
(j) Since
January 1, 2014, each of the principal executive officer and principal financial officer of Parent (or each former principal executive officer and principal
financial officer of Parent, as applicable) have made all certifications required by Rule 13a-14 and 15d-14 under the 1934 Act and Sections 302 and 906 of the Sarbanes-Oxley Act, and the
statements contained in any such certifications were, or will be, when made complete and correct.
(k) Since
January 1, 2014, no Executive Officer or director of Parent has received from any former or current auditor, accountant, consultant or representative of
Parent or any Governmental Authority written notice of, any material complaint or allegation, whether written or oral, that Parent has engaged in material improper accounting practices. No attorney
representing Parent has reported to the current Board of Directors of Parent or any committee thereof or to any current director or Executive Officer of Parent evidence of a material violation of
United States or other securities laws or material breach of fiduciary duty by Parent or any of its officers or directors.
(l) To
Parent's knowledge, no employee is providing, or since January 1, 2014 has provided, information to any law enforcement agency regarding any conduct which the
employee reasonably believes constitutes a violation of, nor filed, caused to be filed, testified, participated in, or otherwise assisted in a proceeding relating to an alleged material violation of,
chapter 63 of title 18, United States Code, sections 1341, 1343, 1344, or 1348, any rule or regulation of the SEC, or any provision of Federal law relating to fraud against shareholders
as described in Section 806 of the Sarbanes-Oxley Act by Parent.
(m) Except
for such items that are of the type to be set forth in the notes to the consolidated financial statements of Parent, Parent is not a party to any off-balance
sheet contract or other "off-balance sheet arrangements" (as defined in Item 303(a)(4)(ii) of Regulation S-K of the SEC), where the result, purpose or intended effect of such contract is
to avoid disclosure of any material transaction involving, or material liabilities of, Parent or any of its Subsidiaries in the Parent SEC Documents.
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Section 5.08.
Financial Statements.
The consolidated financial statements (including all related
notes and schedules) of Parent included in or incorporated by reference into the Parent SEC Documents
(the "
Parent Financial Statements
") (i) fairly present in all material respects the consolidated financial position of Parent, as at the
respective dates thereof, and the consolidated results of their operations and their consolidated cash flows for the respective periods then ended, (ii) were prepared in conformity with GAAP
(except, in the case of the unaudited statements, subject to normal year-end audit adjustments and the absence of footnote disclosure) applied on a consistent basis during the periods involved (except
as may be indicated therein or in the notes thereto), and (iii) have been prepared from and are in accordance with, in all material respects, the books and records of Parent and its
consolidated Subsidiaries. The books and records of Parent have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting
requirements. As of the date of this Amended and Restated Merger Agreement, KPMG LLP has not resigned (or informed Parent that it intends to resign) or been dismissed as independent public
accountants of Parent as a result of or in connection with any disagreements with Parent on a matter of accounting principles or practices, financial statement disclosure or auditing scope or
procedure.
Section 5.09.
Disclosure Documents.
The Form S-4 to be filed with the SEC in connection
with the Merger will comply as to form in all material respects with the applicable requirements of the
1933 Act. The Form S-4 and the information supplied by Parent for use in the Company Proxy Statement/Prospectus, at the time the Form S-4 becomes effective or, in the case of the
Company Proxy Statement/Prospectus, at the date of mailing to the Company's stockholders and at the date of the Company Stockholder Meeting (as reconvened after the date of this Amended and Restated
Merger Agreement), will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The representations and warranties contained in this
Section 5.09
will not
apply to statements or omissions included or incorporated by reference in the Company Proxy Statement/Prospectus or the Form S-4 based upon information supplied by the Company, its Subsidiaries
or any of their Representatives specifically for use or incorporation by reference therein.
Section 5.10.
Absence of Certain Changes.
Since the Parent Balance Sheet Date until the date of
this Amended and Restated Merger Agreement, there has not been any Circumstance that has had, or would
reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. Since the Parent Balance Sheet Date (a) the business of Parent and its Subsidiaries has been
conducted in the ordinary course consistent with past practices in all material respects and (b) there has not been any action taken by Parent or any of its Subsidiaries that, if taken during
the period from the date of the date of this Amended and Restated Merger Agreement through the Effective Time without the Company's consent, would constitute a breach of
Section 7.01
.
Section 5.11.
No Undisclosed Material Liabilities.
There are no liabilities or obligations of
Parent or any of its Subsidiaries, of any kind whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, other than (a) liabilities or obligations disclosed and provided for in the Parent Balance Sheet or in the notes thereto, (b) liabilities or obligations
incurred in connection with the transactions contemplated by this Agreement, (c) liabilities or obligations that have not had, and would not reasonably be expected to have, individually or in
the aggregate, a Parent Material Adverse Effect, (d) liabilities or obligations not required under GAAP to be disclosed and provided for in a consolidated balance sheet of Parent and
(e) liabilities or obligations incurred in the ordinary course of business consistent with past practices since the Parent Balance Sheet Date.
Section 5.12.
Compliance with Laws.
Except with respect to matters that have not had, and would
not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse
Effect, Parent (a) is in compliance with, and since January 1, 2014 has been in compliance with, all
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Applicable
Laws, (b) has not received written notice of any violation of Applicable Laws since January 1, 2014, and (c) is not subject to a pending, or to the knowledge of Parent,
threatened investigation by any Governmental Authority with respect to a violation of Applicable Laws. Parent holds all material federal, state and local governmental licenses, franchises, grants,
registrations, clearances, authorizations, permits, consents, certifications, approvals, variances, exemptions and orders necessary for Parent to own, lease, and operate its properties and assets, and
to carry on its business as now conducted (the "
Parent Permits
"), except for those the absence of which has not had, and would not reasonably be
expected to have, individually or in the aggregate, a Parent Material Adverse Effect. Parent is and has been in compliance with the terms of the Parent Permits, except for failures to comply or
violations that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. For the avoidance of doubt, for purposes of this
Section 5.12
, the term "Applicable Laws" shall include the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of
1973.
Section 5.13.
Litigation.
There is no Proceeding pending against or, to the knowledge of Parent,
threatened against, (a) Parent or any of its Subsidiaries, (b) any present or
former officer, director or employee of Parent or any of its Subsidiaries in their respective capacities as such, (c) any Person for whom Parent or any of its Subsidiaries may be liable with
respect to such Proceeding or (d) any of Parent or its Subsidiaries' assets or properties, before (or, in the case of threatened Proceedings, would be before) any arbitrator or Governmental
Authority, except, in each case, for those Proceedings that have not had, or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. As of the
date hereof, there is no Proceeding pending against or, to the knowledge of Parent, threatened against, Parent or any of its Subsidiaries that in any manner challenges or seeks to prevent, enjoin,
alter or delay the Merger or any of the other transactions contemplated hereby. There is no judgment, decree, injunction, rule or order of any arbitrator or Governmental Authority outstanding or, to
the knowledge of Parent threatened against, or investigation by any Governmental Authority involving, Parent or any of its Subsidiaries, except for those that have not had or would not reasonably be
expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
Section 5.14.
Absence of Certain Agreements.
Neither Parent nor any of its Affiliates has entered
into any contract, arrangement or understanding (in each case, whether oral or written), or authorized,
committed or agreed to enter into any contract, arrangement or understanding (in each case, whether oral or written), pursuant to which: (a) any stockholder of the Company would be entitled to
receive consideration of a different amount or nature than the Merger Consideration or pursuant to which any stockholder of the Company (i) agrees to vote to adopt this Agreement or the Merger
or (ii) agrees to vote against any Superior Proposal or (b) any Third Party has agreed to provide, directly or indirectly, equity capital to Parent or the Company to finance in whole or
in part the Merger.
Section 5.15.
Business Activities.
None of Parent, its Subsidiaries, its Affiliates or the Wanda
Group Parties engages in the motion picture exhibition business in the United States except through
Parent and its Affiliates. None of Parent, any of its Subsidiaries, any of its Affiliates or any of the Wanda Group Parties is owned or controlled by a Governmental Authority.
Section 5.16.
Finders' Fees.
Except for Citigroup Global Markets Inc., whose fees will be
paid by Parent, there is no investment banker, broker, finder or other intermediary that has
been retained by or is authorized to act on behalf of Parent or any of its Subsidiaries who will be entitled to any fee or commission from Parent or any of its Affiliates upon consummation of the
transactions contemplated by this Agreement.
Section 5.17.
Financing.
(a) Assuming
the satisfaction or waiver of the conditions set forth in
Section 9.02(a)
,
Section 9.02(b)
and
Section 9.02(c)
, Parent has available to it, or will have available to
it as of the date
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the
Closing is required to occur pursuant to
Section 2.01
, immediately available funds to enable it to consummate the Merger pursuant to the
terms of this Agreement, including to pay all Cash Consideration for all of the shares of Company Stock on a fully-diluted basis, to make all payments in respect of the Company Stock Options, Company
Restricted Shares, Company Performance Shares and Company Restricted Stock Units to pay all related fees and expenses of Parent, Merger Subsidiary and their respective Representatives, and to make all
other payments required by this Agreement and the Financing.
(b) Parent
has delivered to the Company true and complete copies of fully executed commitment letters, dated on the date of this Amended and Restated Merger Agreement
(including the exhibits and annexes thereto, the "
Debt Commitment Letters
"), from the lenders party thereto (the
"
Lenders
") confirming their respective commitments to provide Parent with debt financing in connection with the transactions contemplated hereby (the
"
Financing
") (for the avoidance of doubt, it being acknowledged and agreed that Parent may amend the Debt Commitment Letters to add purchasers, lenders,
lead arrangers, book-runners, syndication agents or similar entities who had not executed any Debt Commitment Letter as of the date of this Amended and Restated Merger Agreement;
provided
that no such
addition shall relieve the original Lenders of their obligations under the Debt Commitment Letters prior to the initial funding of
the Financing, except as set forth in the Debt Commitment Letters with respect to the "Additional Initial Lenders" (as defined thereunder)).
(c) Parent
has delivered to the Company on or prior to the date of this Amended and Restated Merger Agreement true, correct and complete copies of any fee letters executed
in connection with the Debt Commitment Letters (the "
Fee Letters
") which have been redacted in a manner required by the terms thereof. As of the date of
this Amended and Restated Merger Agreement, there are no side letters or other agreements, contracts or arrangements related to the funding of the Financing, other than as expressly set forth in the
Debt Commitment Letters and the Fee Letters and delivered to the Company on or prior to the date of this Amended and Restated Merger Agreement, that could adversely affect the availability of the full
amount of the Financing.
(d) Each
of the Debt Commitment Letters is in full force and effect and is a valid and binding obligation of Parent and the other parties thereto, except (i) to the
extent that enforceability may be limited by the Bankruptcy and Equity Exception and (ii) that the availability of equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceeding thereof may be brought. As of the date of this Amended and Restated Merger Agreement, none of the Debt Commitment Letters have been amended or
modified (other than such amendments or modifications attached thereto that have been provided to the Company) in any respect, and the respective commitments contained therein have not been withdrawn,
rescinded or otherwise modified in a manner that would adversely affect or delay in any respect the availability of the full amount of the Financing at the Closing. As of the date of this Amended and
Restated Merger Agreement, no event has occurred which would constitute a breach or default (or an event which with notice or lapse of time or both would constitute a default), or the failure of any
condition on the part of Parent under the Debt Commitment Letters or on the part of the Lenders that would adversely affect or delay in any respect the availability of the full amount of the Financing
at the Closing. There are no conditions precedent to the funding of the full amount of the Financing other than the conditions precedent set forth in the Debt Commitment Letters. Assuming the
satisfaction or waiver of the conditions set forth in
Section 9.02(a)
,
Section 9.02(b)
and
Section 9.02(c)
, Parent has no reason to believe that the Financing will not be available on the Closing Date. Assuming the satisfaction or
waiver of the conditions set forth in
Section 9.02(a)
,
Section 9.02(b)
and
Section 9.02(c)
and subject to the terms of the Debt Commitment Letters, the aggregate proceeds of the Financing are in an amount sufficient to
consummate the Merger upon the terms contemplated by this Agreement (including to pay the Cash Consideration for all of the shares of Company Stock on a fully diluted basis and to make all payments in
respect of the Company Stock Options, Company Restricted Shares, Company Performance Shares
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and
Company Restricted Stock Units), to make any repayment or refinancing of debt contemplated in this Agreement or the Debt Commitment Letters, and to pay all related fees and expenses of Parent,
Merger Subsidiary and their respective Representatives pursuant to this Agreement and the Financing. Parent (or an Affiliate thereof) has fully paid or caused to be paid any and all commitment fees or
other fees required by the Debt Commitment Letters to be paid to the extent the same are due and payable on or before the date of this Amended and Restated Merger Agreement.
(e) Parent
acknowledges and agrees that notwithstanding anything to the contrary in this Agreement, the consummation of the Financing shall not be a condition to the
obligation of Parent and Merger Subsidiary to consummate the Merger and the other transactions contemplated hereby.
Section 5.18.
Solvency.
Assuming (a) the satisfaction of the conditions to Parent's
obligations to consummate the Merger and (b) the accuracy of the representations and
warranties set forth in
Article 4
and, after giving effect to the transactions contemplated by this Agreement, including the Financing, any
alternative financing, the payment of the aggregate Merger Consideration, any repayment or refinancing of debt contemplated in this Agreement or the Debt Commitment Letters, and the payment of all
related fees and expenses, the Surviving Corporation and its Subsidiaries on a consolidated basis will be Solvent as of the Effective Time and immediately after the consummation of the transactions
contemplated hereby. For purposes of this Agreement, "
Solvent
" when used with respect to any Person, on a consolidated basis, means that, as of any date
of determination, (i) the fair value of the assets of such Person will exceed their consolidated debt and liabilities, contingent or otherwise, (ii) the present fair saleable value of
the property of such Person will be greater than the amount that will be required to pay the probable liability on their debts and other liabilities contingent or otherwise, as such debts and other
liabilities become absolute and mature, (iii) such Person will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted
and is proposed to be conducted following such date and (iv) such Person will not have incurred and do not intend to incur, or believe they will incur, any debts and liabilities, contingent or
otherwise, including current obligations, that they do not believe that they will be able to pay (based on their assets and cash flow) as such debts and liabilities become due (whether at maturity or
otherwise).
Section 5.19.
Ownership of Shares.
Neither Parent nor Merger Subsidiary, nor any of their
"affiliates" or "associates" is, nor at any time in the three year period prior to the date of this
Agreement has been, an "interested stockholder" of the Company (as such terms are defined in Section 203 of the Delaware General Corporation Law). Neither Parent nor Merger Subsidiary, nor any
of their "associates" or "controlled affiliates" owns any shares of Company Stock, and no "affiliates" of Parent or Merger Subsidiary that are not "controlled affiliates" "owns" individually or in the
aggregate more than five (5) percent of the outstanding shares of Company Stock.
Section 5.20.
Management Agreements.
Other than as contemplated by this Agreement, as of the
date hereof, there are no contracts, undertakings, commitments, agreements or obligations or
understandings between Parent or Merger Subsidiary, on the one hand, and any member of the Company's management or the Company's Board of Directors, on the other hand, relating in any way to the
transactions contemplated by this Agreement or the operations of the Company after the Effective Time.
Section 5.21.
Amended and Restated Merger Agreement.
The execution, delivery and performance by
Parent and Merger Subsidiary of this Amended and Restated Merger Agreement and the consummation by Parent and Merger
Subsidiary of the transactions contemplated by this Agreement are within the corporate power and authority of Parent and Merger Subsidiary and have been duly authorized by all necessary corporate
action of Parent and Merger Subsidiary other than the adoption of this Amended and Restated Merger Agreement by the sole stockholder of Merger Subsidiary, which Parent shall cause to take place within
twenty-four (24) hours of the signing of this Amended and
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Restated
Merger Agreement. This Agreement constitutes a valid and binding agreement of each of Parent and Merger Subsidiary enforceable against Parent and the Merger Subsidiary in accordance with its
terms, subject to the Bankruptcy and Equity Exception. No vote of the holders of shares of Parent Class A Common Stock, Parent Class B Common Stock or any other shares of Parent's
capital stock is necessary to consummate the Merger and the other transactions contemplated by this Agreement.
Section 5.22.
Non-Reliance on Company Estimates, Projections, Forecasts, Forward-Looking Statements and Business Plans.
In connection with the due diligence investigation of the Company by Parent and Merger Subsidiary, Parent and Merger Subsidiary have received and may continue to
receive from the Company certain estimates, projections, forecasts and other forward-looking information, as well as certain business plan information, regarding the Company and its business and
operations. Parent and Merger Subsidiary hereby acknowledge that there are uncertainties inherent in attempting to make such estimates, projections, forecasts and other forward-looking statements, as
well as in such business plans, with which Parent and Merger Subsidiary are familiar, that Parent and Merger Subsidiary are taking full responsibility for making their own evaluation of the adequacy
and accuracy of all estimates, projections, forecasts and other forward-looking information, as well as such business plans, so furnished to them (including the reasonableness of the assumptions
underlying such estimates, projections, forecasts, forward-looking information or business plans), and that Parent and Merger Subsidiary will have no claim, right or obligation under this Agreement or
otherwise (including under
Article 9
) against the Company or any of its Subsidiaries, or any of their respective Representatives, or any other
Person, with respect thereto. Accordingly, Parent and Merger Subsidiary hereby acknowledge that none of the Company nor any of its Subsidiaries, nor any of their respective Representatives, nor any
other Person, has made or is making any representation or warranty with respect to such estimates, projections, forecasts, forward-looking statements or business plans (including the reasonableness of
the assumptions underlying such estimates, projections, forecasts, forward-looking statements or business plans).
ARTICLE 6
COVENANTS OF THE COMPANY
Section 6.01.
Conduct of the Company.
Except with the prior written consent of Parent (which consent
shall not be unreasonably withheld, conditioned or delayed), as contemplated by this Agreement, as
set forth in
Section 6.01
of the Company Disclosure Letter or as required by Applicable Law, from the date hereof until the Effective Time, the
Company shall, and shall cause each of its Subsidiaries to, (i) conduct its business in the ordinary course consistent with past practices, (ii) conduct its business in material
compliance with all Applicable Laws (except where such failure to be in compliance would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect) and
(iii) use its commercially reasonable efforts to preserve intact its business organizations and relationships with Third Parties and keep available the services of its present officers and key
employees. Without limiting the generality of the foregoing, except with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), as contemplated
by this Agreement or set forth in
Section 6.01
of the Company Disclosure Letter, the Company shall not, nor shall it permit any of its
Subsidiaries to:
(a) amend
its certificate of incorporation, bylaws or other similar organizational documents;
(b) (i)
split, combine or reclassify any shares of its capital stock, (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or
property or any combination thereof) in respect of its capital stock, except for dividends by any of its wholly-owned Subsidiaries or (iii) redeem, repurchase or otherwise acquire or offer to
redeem, repurchase, or otherwise acquire any Company Securities or any Company Subsidiary Securities except pursuant to any Company Stock Plan;
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(c) (i)
grant, issue, deliver or sell, or authorize the grant, issuance, delivery or sale of, any shares of any Company Securities or Company Subsidiary Securities, other
than the issuance of (A) any shares of the Company Stock upon the exercise of outstanding Company Stock Options in accordance with the terms of such Company Stock Options, (B) any
Company Restricted Shares and Company Restricted Stock Units to directors of the Company in the ordinary course consistent with past practices, and (C) any shares of earned Company Performance
Shares that have been granted prior to the date of this Agreement or (ii) amend any term of any Company Security or any Company Subsidiary Security;
(d) acquire
(by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses
having a value (i) in excess of Two Million Dollars ($2,000,000) individually, or Five Million Dollars ($5,000,000) in the aggregate, from any other Person, (ii) merge or consolidate
with any other Person or (iii) adopt a plan of complete or partial liquidation, dissolution, recapitalization, restructuring merger or other reorganization;
(e) sell,
lease, license or otherwise transfer any Subsidiary or any amount of assets, securities, properties, interests or businesses, having a value in excess of Two
Million Dollars ($2,000,000) individually, or Five Million Dollars ($5,000,000) in the aggregate, except (i) pursuant to existing contracts or commitments disclosed in the Company Disclosure
Letter, and (ii) in the ordinary course of business consistent with past practices in an amount not to exceed Eight Million Dollars ($8,000,000) in the aggregate;
(f) make
any loans, advances or capital contributions to, or investments in, any other Person in excess of One Million Dollars ($1,000,000) either by purchase of stock or
securities, contributions to capital, property transfer, purchase of any property or assets of any Person or otherwise (other than (i) loans or advances between and among the Company and/or any
of its wholly-owned Subsidiaries made in the ordinary course of business consistent with past practices and (ii) capital contributions to or investments in wholly-owned Subsidiaries made in the
ordinary course of business consistent with past practices);
(g) create,
assume, incur or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof (or amend and restate or refinance any existing
indebtedness for borrowed money), other than (i) (A) up to Twenty-Five Million Dollars ($25,000,000) of indebtedness under lines of credit existing on the date of this Agreement, (B) any
indebtedness or guarantee (including any lease guarantee) incurred in the ordinary course of business consistent with past practices in an amount not to exceed Five Million Dollars ($5,000,000) in the
aggregate, or (ii) indebtedness incurred between or among the Company and/or any of its wholly-owned Subsidiaries made in the ordinary course of business consistent with past practices or
between any of such wholly-owned Subsidiaries or guarantees by the Company of indebtedness of any wholly-owned Subsidiary made in the ordinary course of business consistent with past practices;
(h) prepay,
redeem, repurchase, defease, cancel or otherwise terminate (or amend, restate or refinance any existing indebtedness for borrowed money) any indebtedness for
borrowed money of the Company or any of its Subsidiaries;
(i) except
as required by Applicable Law and except as required under any Company Employee Plan, (i) grant or increase any severance or termination pay to (or amend
any existing severance pay or termination arrangement with) any Company Employee or director of the Company or any Subsidiary, (ii) increase benefits payable under any severance or termination
pay policies or employment agreements existing as of the date of this Agreement, (iii) enter into any employment, deferred compensation, retention or other similar agreement (or any amendment
to any such existing agreement) with any Company Employee or directors of the Company or any Subsidiary, (iv) establish, adopt or amend any Collective Bargaining Agreement or Company Employee
Plan, or (v) increase compensation, bonus or other benefits payable to any Company Employee or director of the Company or any Subsidiary other than (A) annual salary increases in the
ordinary course of business consistent with past practice; (B) increases in amounts in accounts under the Executive Plan resulting from the annual salary increases described in (A); or
(C) as contemplated by
Section 7.05(f)
;
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(j) change
the Company's methods of accounting or accounting principles or practices, except as required by concurrent changes in GAAP or in Regulation S-X of the
1934 Act approved by its independent public accountants;
(k) make
or change any material Tax election, change any annual Tax accounting period, adopt or change any material method of Tax accounting, amend any material Tax Returns
or file claims for material Tax refunds, enter into any material closing agreement, settle any material Tax claim, audit or assessment, surrender any right to claim a material Tax refund, offset or
other reduction in Tax liability or take any material position on any Tax Return filed on or after the date of this Agreement or adopt any material accounting method that is inconsistent with
elections made, positions taken or methods used in preparing or filing similar Tax Returns in prior periods;
(l) make
any capital expenditure, or incur any obligation or liability in respect thereof, other than those capital expenditure projects that are (i) not in excess of
Four Million Dollars ($4,000,000) in the aggregate or (ii) contemplated by the Company's 2016 fiscal year forecast, which forecast has been made available to Parent on February 22, 2016;
(m) create
or incur any Lien on any material asset other than in the ordinary course of business consistent with past practices;
(n) enter
into (i) any contract that would have been a Company Material Contract were the Company a party or subject thereto on the date of this Agreement other than
entry into renewals of existing Company Material Contracts in the ordinary course of business consistent with past practices (but in no event, for terms of more than twenty-four (24) months) or
(ii) lease agreement for real property;
(o) terminate
or amend in any material respect any Company Material Contract or Real Property Lease, or waive, release or assign any material right, claims or benefit of the
Company thereunder, except for such terminations, amendments, waivers, releases or assignments in the ordinary course of business consistent with past practices;
(p) terminate,
renew, suspend, abrogate, amend or modify in any material respect any Company Permit other than in the ordinary course of business consistent with past
practices;
(q) settle,
or offer or propose to settle, any litigation, investigation, arbitration, proceeding or other claim involving or against the Company or any Subsidiary involving
a payment by the Company or any Subsidiary in excess of One Million Five Hundred Thousand Dollars ($1,500,000) individually or Three Million Dollars ($3,000,000) in the aggregate;
(r) fail
to use commercially reasonable efforts to maintain existing material insurance policies or comparable replacement policies; or
(s) except
as, in the reasonable judgment of the Company, is necessary to comply with the ongoing requirements of the 1934 Act or prepare or make any filings with the SEC
agree, resolve or commit to do any of the foregoing.
Parent acknowledges and consents to, for purposes of this
Section 6.01,
the Company's amendment to the engagement letter
with J.P. Morgan Securities LLC, dated as of July 19, 2016, a copy of which has not been provided to Parent.
Section 6.02.
Company Stockholder Meeting
.
The Company shall cause the Company Stockholder Meeting to be duly noticed and reconvened as promptly as reasonably practicable (and, subject to the provisions in the remainder of this
Section 6.02
, in no event more than forty-five (45) days) after the Company Proxy Statement/Prospectus is declared effective by the SEC,
for the purpose of voting on the approval and adoption of this Agreement and the Merger, a resolution to adjourn the Company Stockholder Meeting, if necessary or appropriate to solicit additional
proxies if there are not sufficient
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votes
to adopt the Agreement, and a resolution to vote on a non-binding advisory proposal to approve change-in-control payments to executives of the Company. Except as required by Applicable Law, the
Company shall not submit any other proposal to its stockholders at the Company Stockholder Meeting without the prior written consent of Parent, which consent shall not be unreasonably withheld,
conditioned or delayed. The record date of the reconvened Company Stockholder Meeting and the date of reconvening of the Company Stockholder Meeting shall be selected by the Company after reasonable
consultation with Parent. Subject to
Section 6.04
, (a) the Board of Directors of the Company shall recommend approval and adoption of this
Agreement and the Merger by the Company's stockholders and the Company shall include the Company Board Recommendation in the Company Proxy Statement/Prospectus, (b) the Company shall use its
reasonable best efforts to obtain the Company Stockholder Approval and (c) the Company shall otherwise comply in all material respects with the legal requirements applicable to the Company
Stockholder Meeting. Notwithstanding the foregoing, (i) if on a date within two (2) Business Days of any date the Company Stockholder Meeting is scheduled to reconvene, the Company has
not received proxies representing the Company Stockholder Approval, whether or not a quorum is present, the Company may postpone or adjourn, or make one or more successive postponements or
adjournments of, the Company Stockholder Meeting as long as the date of the Company Stockholder Meeting is not, without the prior written consent of Parent (which consent shall not be unreasonably
withheld, conditioned or delayed), postponed or adjourned to a date that is later than the later of (accounting for all postponements or adjournments in reliance upon this proviso (i))
(A) thirty (30) calendar days in the aggregate from the date that the reconvened Company Stockholder Meeting is scheduled to reconvene after the mailing of the Company Proxy
Statement/Prospectus and (B) ten (10) Business Days following the termination of the Negotiation Period pursuant to
Section 6.04(f)
and (ii) if required by Applicable Law to provide the Company's stockholders additional information or disclosure in connection with the matters to be voted upon at the Company Stockholder
Meeting, the Company shall make one or more successive adjournments of the Company Stockholder Meeting only for such period of time as is reasonably necessary in order to give the Company's
stockholders sufficient time to evaluate such additional information or disclosure. The Company shall use its reasonable best efforts to keep Parent reasonably updated concerning proxy solicitation
results for the Company Stockholder Meeting.
Section 6.03.
Access to Information
.
From the date hereof until the Effective Time and subject to Applicable Law and the Confidentiality Agreement, the Company shall (a) give Parent and its Representatives, upon
reasonable notice, reasonable access during normal business hours to the offices, properties, books and records of the Company and its Subsidiaries, (b) furnish to Parent and its
Representatives such financial and operating data and other information as such Persons may reasonably request and (c) instruct its Representatives to cooperate reasonably with Parent in its
investigation of the Company and its Subsidiaries;
provided
,
however
, that if the Company does not
provide access or information in reliance on the preceding clause, it shall provide notice to Parent that it is withholding such access or information and shall use its commercially reasonable efforts
to communicate, to the extent feasible, the applicable information in a way that would not violate Applicable Law or binding agreement or risk the waiver of attorney-client privilege. Any
investigation pursuant to this
Section 6.03
shall be conducted in such manner as not to interfere unreasonably with the conduct of the business
of the Company and its Subsidiaries. Nothing in this
Section 6.03
shall require the Company to provide any access, or to disclose any information
(i) if providing such access or disclosing such information could reasonably be expected to violate any Applicable Law (including antitrust or privacy laws) or any binding agreement entered
into prior to the date of this Agreement or (ii) protected by attorney-client privilege to the extent such privilege cannot be protected by the Company through exercise of its reasonable
efforts.
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Section 6.04.
No Solicitation; Other Offers
.
(a) Except
as provided by the remainder of this
Section 6.04
, from the date hereof until the Effective Time or, if
earlier, the termination of this Agreement in accordance with
Article 10
, neither the Company nor any of its Subsidiaries nor any of their
respective officers or directors shall, and the Company and its Subsidiaries shall not authorize any of its other Representatives to, directly or indirectly, (i) solicit, initiate or take any
action to knowingly facilitate or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal,
including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in
furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into, continue or otherwise participate in any discussions or
negotiations with, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party with respect to any potential Acquisition
Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other
similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an "
Alternative
Acquisition Agreement
"), or (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement concerning an Acquisition Proposal;
provided
that
notwithstanding the foregoing and the last sentence of this
Section 6.04(a)
the
Company shall be permitted to waive, amend, release or fail to enforce any provision of any confidentiality, "standstill" or similar obligation of any Person if the Board of Directors of the Company
determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law. The Company
shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, cease immediately and cause to be terminated any and all activities, discussions or negotiations, if
any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal or that would reasonably be expected to lead to an Acquisition
Proposal. The Company shall use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this
Section 6.04
. The Company also agrees that it will promptly
request each Person that has executed a confidentiality agreement prior to the date
hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such confidentiality agreement) all confidential
information furnished to such Person prior to the date hereof by or on behalf of it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce
any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this
Section 6.04
.
(b) Notwithstanding
anything contained in
Section 6.04(a)
to the contrary, following the receipt of an Acquisition
Proposal that was made after the date hereof that did not result from a material breach by the Company, any of its Subsidiaries or its or their respective Representatives of this
Section 6.04
and
prior to obtaining the Company Stockholder Approval, if (i) the Company or any of its Representatives has received an
Acquisition Proposal that the Board of Directors of the Company, after consultation with its outside legal counsel and with its financial advisor, reasonably believes is or could reasonably result in
a Superior Proposal and (ii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be
inconsistent with its fiduciary duties under Applicable Law, then, subject to providing written notice to Parent of its decision to take such action and compliance in all material respects with
Section 6.04(c)
, the Company, directly or indirectly through its Representatives, may (A) engage in negotiations or discussions with such
Third Party and its Representatives, and (B) furnish to such Third Party or its Representatives non-public information relating to the Company or any of its Subsidiaries pursuant to an
Acceptable Confidentiality Agreement;
provided
that the Company shall promptly (and
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in
any event within twenty-four (24) hours) provide to Parent any such information relating to the Company that it provided to any such Person which was not previously provided to or made
available to Parent.
(c) The
Company shall promptly (and, in any event, within twenty-four (24) hours) notify Parent orally and in writing after the receipt by the Company of any
Acquisition Proposal or any request for information or access relating to the Company or any of its Subsidiaries with respect to an Acquisition Proposal indicating, in connection with such notice, the
name of such Person (except to the extent disclosure of such identity would breach a confidentiality obligation in effect prior to the execution of this Agreement) and the material terms and
conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements, which in each case may be redacted, if necessary to
remove the identity of any Third Party to comply with any confidentiality obligation in effect prior to the execution of this Agreement) and thereafter, subject to the foregoing confidentiality
qualifications, shall (i) keep Parent reasonably informed, on a prompt and timely basis, of the status and terms of any such proposals or offers (including any material amendments thereto) and
the status of any such discussions or negotiations, and (ii) provide to Parent as soon as practicable copies of all written proposals or offers (including proposed agreements) sent or provided
to the Company or any of its Subsidiaries from any Person (or such Person's Representative) making an Acquisition Proposal that describes any of the financial or other material terms or conditions of
such Acquisition Proposal.
(d) Except
as set forth in
Section 6.04(e)
and
Section 6.04(g)
,
the Board of Directors of the Company and each committee of the Board of Directors of the Company shall not:
(i) withhold,
withdraw, qualify or modify (or publicly propose or announce any intention to or resolve to withhold, withdraw, qualify or modify), in a manner adverse to
Parent or Merger Subsidiary, the Company Board Recommendation;
(ii) other
than in the case of an Acquisition Proposal in the form of a tender offer or exchange offer, fail to publicly affirm the Company Board Recommendation upon
Parent's written request within five (5) Business Days after such request after a public announcement of an Acquisition Proposal;
(iii) (A)
fail to recommend against acceptance of any tender offer or exchange offer that is publicly disclosed (other than by Parent or any of its Subsidiaries) prior to
the eleventh (11th) Business Day after the commencement of such tender or exchange offer pursuant to Rule 14d-2 under the 1934 Act or (B) recommend that the stockholders of the Company
tender their shares of Company Stock in such tender offer or exchange offer;
(iv) fail
to include the Company Board Recommendation in the Company Proxy Statement/Prospectus in connection with the Company Stockholder Meeting; or
(v) approve,
adopt, recommend, or publicly propose to approve, adopt or recommend, any Acquisition Proposal (any action described in
Sections 6.04(d)(i)
through
6.04(d)(v)
being referred to as an "
Adverse
Recommendation Change
").
(e) Notwithstanding
anything to the contrary set forth in this Agreement but subject to
Section 6.04(f)
, prior to the
time, but not after, the Company Stockholder Approval is obtained, if an Acquisition Proposal has been made after the execution of this Agreement, the Board of Directors of the Company may make an
Adverse Recommendation Change in response to such Acquisition Proposal or terminate this Agreement pursuant to
Section 10.01
if, and only if,
(i) such Acquisition Proposal did not result from a material breach by the Company, any of its Subsidiaries or its or their respective Representatives of this
Section 6.04
; and (ii) the
Board of Directors of the Company determines in good faith after consultation with its outside legal counsel
and with its financial advisor that such Acquisition Proposal constitutes a Superior Proposal.
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(f) Prior
to making any Adverse Recommendation Change in connection with an Acquisition Proposal and prior to terminating this Agreement pursuant to
Section 10.01
(to the extent permitted under
Section 6.04
), the Company shall deliver to
Parent a written notice (a "
Superior Proposal Notice
") stating that the Board of Directors of the Company intends to take such action pursuant to
Section 6.04
and, if applicable, intends to cause the Company to enter into an Alternative Acquisition Agreement, a copy of the proposed form of
which shall be delivered with such notice, together with copies of any documents setting forth the Acquisition Proposal (which notice or intent shall not be an Adverse Recommendation Change or a
violation of
Section 6.04(d)
or any other provision of this
Section 6.04
). During the
three (3) Business Day period commencing on the first Business Day following the date of Parent's receipt of such Superior Proposal Notice (the "
Negotiation
Period
"), the Company shall make its Representatives reasonably available for the purpose of engaging in negotiations with Parent (to the extent Parent desires to negotiate)
regarding a possible amendment of this Agreement so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal. Any written proposal made by
Parent to amend this Agreement during the Negotiation Period shall be considered by the Board of Directors of the Company in good faith. Each time the financial or other material terms of such
Acquisition Proposal are changed, the Company shall be required to deliver to Parent a new Superior Proposal Notice (including as attachments thereto a copy of the new Alternative Acquisition
Agreement relating to such amended Acquisition Proposal and copies of any related documents), and the Negotiation Period shall be extended by an additional three (3) Business Days from the date
of Parent's receipt of such new Superior Proposal Notice.
(g) Notwithstanding
anything to the contrary set forth in this Agreement, prior to the time, but not after, the Company Stockholder Approval is obtained, the Board of
Directors of the Company may make an Adverse Recommendation Change in response to an Intervening Event if, and only if, the Board of Directors of the Company determines in good faith after
consultation with its outside legal counsel and with its financial advisor that a failure to make an Adverse Recommendation Change in response to such Intervening Event would be reasonably likely to
be inconsistent with its fiduciary duties under Applicable Law;
provided
,
however
, that the Company
shall deliver to Parent a written notice (the "
Intervening Event Notice
") advising Parent of all available material information with respect to such
Intervening Event and stating that the Board of Directors of the Company intends to take such action pursuant to this
Section 6.04(g)
(which
notice or intent shall not be an Adverse Recommendation Change or a violation of
Section 6.04(d)
or any other provision of this
Section 6.04
).
During the three (3) Business Day period commencing on the date of Parent's receipt of the Intervening Event Notice (the
"
Intervening Negotiation Period
"), the Company shall make its Representatives reasonably available for the purpose of engaging in negotiations with
Parent (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement in order to enable the Board of Directors of the Company to proceed with the Company Board
Recommendation. Any written proposal made by Parent to amend this Agreement during the Intervening Negotiation Period shall be considered by the Board of Directors of the Company in good faith.
(h) Notwithstanding
anything to the contrary set forth this Agreement, unless this Agreement is terminated pursuant to, and in accordance with,
Section 10.01
, (i) the obligation of the Company to establish a
record date for, give notice of, and, subject to
Section 6.02
, reconvene and hold the Company Stockholder Meeting and to hold a vote of the Company's stockholders on the adoption of this
Agreement and the Merger at the Company Stockholder Meeting pursuant to
Section 6.02
shall not be limited or otherwise affected by the
commencement, disclosure, announcement or submission to it of any Acquisition Proposal (whether or not a Superior Proposal) or by an Adverse Recommendation Change, and (ii) in any case in which
the Company makes an Adverse Recommendation Change pursuant to this
Section 6.04
, the Company shall nevertheless submit this Agreement to a vote
of its stockholders at the Company Stockholder Meeting for the purpose of the approval of this Agreement.
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(i) Nothing
contained in this Agreement shall prevent the Company or the Board of Directors of the Company from (i) taking and disclosing to its stockholders a
position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar communication to its stockholders in connection with the making or amendment of a
tender offer or exchange offer) or from making any disclosure to its stockholders with regard to the transactions contemplated by this Agreement or an Acquisition Proposal which the Board of Directors
of the Company (after consultation with outside counsel) determines in its good faith judgment that failure to make such disclosure would reasonably be expected to violate U.S. federal or state
securities Law or other Applicable Law or its fiduciary obligations under Applicable Law;
provided
that the Board of Directors of the Company may not
effect an Adverse Recommendation Change unless permitted to do so by this
Section 6.04
;
provided
,
further
, that notwithstanding anything herein to the contrary, any "stop, look and listen" disclosure in and of itself shall not be considered an
Adverse Recommendation Change or (ii) contacting and engaging in discussions with any Person or group and their respective Representatives who has made an Acquisition Proposal solely for the
purpose of clarifying such Acquisition Proposal and the terms thereof.
Section 6.05.
Company Employee Plan Matters
.
At the reasonable request of Parent, the Company shall, prior to the Effective Time, adopt such amendments and take such other actions with respect to the Company Employee Plans as
Parent may reasonably request to facilitate the transactions contemplated by this Agreement.
Section 6.06.
No Other Representations and Warranties
.
Except for the representations and warranties set forth in
Article 5
, the Company acknowledges and agrees that no other
representation or warranty of any kind whatsoever, express or implied, at law or in equity, is made or shall be deemed to have been made by or on behalf of Parent or its Subsidiaries with respect to
their respective businesses, affairs, assets, liabilities, financial conditions, results of operations or prospects or with respect to the accuracy or completeness of any other information provided or
made available to Company by or on behalf of Parent or its Subsidiaries, and each of Parent and Merger Subsidiary hereby disclaims any such representation or warranty, whether by or on behalf of
Parent or Merger Subsidiary, and notwithstanding the delivery or disclosure to the Company, or any of their Representatives or Affiliates of any documentation or other information by Parent, Merger
Subsidiary, any of their respective Subsidiaries or any of their Representatives or any of their respective Subsidiaries with respect to any one or more of the foregoing. Neither Parent, Merger
Subsidiary nor any of their Representatives will have or be subject to any liability or obligation to the Company or any other Person resulting from the distribution in written or verbal
communications to the Company of any such information, including any information, documents, projections, forecasts or other material made available to the Company in online "data rooms," confidential
information memoranda or management interviews and presentations.
ARTICLE 7
COVENANTS OF PARENT
Section 7.01.
Conduct of Parent
.
Except with the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), as contemplated by this Agreement, as set forth in
Section 7.01
of the Parent Disclosure Letter or as required by Applicable Law, from the date of this Amended and Restated Merger Agreement until
the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, conduct its business in all material respects in the ordinary course. Without limiting the generality of the foregoing,
except with the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), as contemplated by this Agreement or set forth in
Section 7.01
of
the Parent Disclosure Letter, from the date hereof (except in the case of
Section 7.01(a)
, which shall be from the date of this Amended and
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Restated
Merger Agreement) until the Effective Time, Parent shall not, nor shall it permit any of its Subsidiaries to:
(a) amend
its certificate of incorporation, bylaws or other similar organizational documents, in each case, in any manner that would have a material adverse effect on the
rights of holders of Parent Class A Common Stock;
(b) take
any action or fail to take any action that is intended or is reasonably likely to result in (i) a delay in the consummation of the Merger or the transactions
contemplated by this Agreement, (ii) any impediment to Parent's ability to consummate the Merger or the transactions contemplated by this Agreement, (iii) any of its representations and
warranties set forth in this Agreement being or becoming untrue in any material respect at any time at or prior to the Effective Time, (iv) any of the conditions to the Merger set forth in
Article 9
not being satisfied or (v) a material violation of any provision of this Agreement, except, in each case, as required by
Applicable Law; or
(c) agree,
resolve or commit to do any of the foregoing.
Section 7.02.
Obligations of Merger Subsidiary
.
Parent shall take all action necessary to cause Merger Subsidiary to perform its obligations under this Agreement and to consummate the Merger on the terms and conditions set forth in
this Agreement.
Section 7.03.
Voting of Shares
.
Parent shall vote all shares of Company Stock beneficially owned by it or any of its Subsidiaries in favor of adoption of this Agreement at the Company Stockholder Meeting.
Section 7.04.
Director and Officer Liability
.
Parent shall, and Parent shall cause the Surviving Corporation, and the Surviving Corporation hereby agrees, to do the following:
(a) From
and after the Effective Time, Parent and the Surviving Corporation shall indemnify and hold harmless, and provide advancement of expenses to, the present and former
officers and directors of the Company and its Subsidiaries (each, an "
Indemnified Person
") in respect of acts or omissions in their capacity as a
director or officer of the Company or its Subsidiaries or as an officer, director, employee, fiduciary or agent of another enterprise if the Indemnified Person was serving in such capacity at the
request of the Company or any of its Subsidiaries, in any case occurring at or prior to the Effective Time, to the fullest extent permitted by Delaware Law or any other Applicable Law (in the case of
non-Delaware entities) or provided under the certificate of incorporation, bylaws, any indemnification agreements and any other governing documents of the Company and its Subsidiaries in effect on the
date hereof. In the event of any threatened or pending claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative and whether formal or informal (each,
a "
Proceeding
") to which an Indemnified Person is, has been or becomes a party or with respect to which an Indemnified Person is, has been or becomes
otherwise involved (including as a witness), arising in whole or in part out of, or pertaining in whole or in part to, the fact that the Indemnified Person is or was an officer or director of the
Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as an officer, director, employee, fiduciary or agent of another enterprise (including
any Proceeding arising out of or pertaining to matters occurring or existing or alleged to have occurred or existed, or acts or omissions occurring or alleged to have occurred, at or prior to the
Effective Time, or arising out of or pertaining to this Agreement and the transactions and actions contemplated hereby), Parent shall, or shall cause the Surviving Corporation to, advance fees, costs
and expenses (including attorney's fees and disbursements) incurred by each Indemnified Person in connection with and prior to the final disposition of such Proceedings, such fees, costs and expenses
(including attorney's fees and disbursements) to be advanced within twenty (20) days of receipt by Parent from the Indemnified Person of a request therefor,
provided
such Indemnified Person
provides a written affirmation of such Indemnified Person's good faith belief that he or she has met all applicable
standards of conduct applicable to indemnification and an undertaking
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to
repay such advance if it is ultimately determined by a final non-appealable order of a court of competent jurisdiction that such Indemnified Person is not entitled to indemnification under this
Section 7.04(a)
or otherwise.
(b) For
a period of six (6) years after the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation shall contain provisions
regarding (i) elimination of liability of directors and managers, (ii) indemnification of officers, directors and managers, and (iii) advancement of expenses, in each case, for
periods prior to and including the Effective Time, that are no less advantageous to the intended beneficiaries than the corresponding provisions in the Company's governing documents in existence on
the date of this Agreement. The indemnification agreements with the Company's directors and officers that survive the Merger shall continue in full force and effect in accordance with their terms.
(c) For
a period of six (6) years after the Effective Time, Parent shall cause to be maintained in effect all provisions in the certificate of incorporation, bylaws
and other governing documents of the Company's Subsidiaries regarding (i) elimination of liability of directors and managers, (ii) indemnification of officers, directors and managers,
and (iii) advancement of expenses, in each case, that are no less advantageous to the intended beneficiaries than the corresponding provisions in existence on the date of this Agreement.
(d) Prior
to the Effective Time, the Company shall, or, if the Company is unable to or does not, Parent shall and shall cause the Surviving Corporation as of the Effective
Time to, obtain and fully pay the premium for the non-cancellable extension of the directors' and officers' liability coverage of the Company's existing directors' and officers' insurance policies and
the Company's existing fiduciary liability insurance policies (collectively, "
D&O Insurance
"), in each case for a claims reporting or discovery period
of six years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time, from an insurance carrier with the same or better credit
rating as the Company's current insurance carrier with respect to D&O Insurance, with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under
the Company's existing policies with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or
officer of the Company or any of its Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this
Agreement or the transactions or actions contemplated hereby);
provided
that neither the Company nor the Surviving Corporation shall purchase such a
"tail" policy for a premium amount for any one year in excess of 300% of the annual premium currently paid by the Company for such insurance (the "
Tail
Cap
") without the prior written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed;
provided
,
further
, that if the premiums of such "tail" policy exceed the Tail Cap, the Company, after
prior consultation with Parent, may obtain such a "tail" policy with the greatest coverage available, with respect to matters occurring prior to the Effective Time, for a cost not exceeding the Tail
Cap. If the Company or the Surviving Corporation for any reason fail to obtain such "tail" insurance policies as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the
Surviving Corporation to, either (i) continue to maintain in effect, for a period of at least six years from and after the Effective Time, the D&O Insurance in place as of the date hereof with
the Company's current insurance carrier or with an insurance carrier with the same or better credit rating as the Company's current insurance carrier with respect to D&O Insurance with terms,
conditions, retentions and limits of liability that are no less favorable than the coverage provided under the Company's existing policies as of the date hereof or (ii) purchase from the
Company's current insurance carrier or from an insurance carrier with the same or better credit rating as the Company's current insurance carrier with respect to D&O Insurance comparable D&O Insurance
for such six-year period with terms, conditions, retentions and limits of liability that are no less favorable than as provided in the Company's existing policies as of the date hereof;
provided
that in
no event shall Parent
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or
the Surviving Corporation be required to expend for such policies pursuant to this sentence a premium amount for any one year in excess of the Tail Cap; and
provided
,
further,
that if the premiums of such insurance coverage with respect to any policy year
exceed the Tail Cap, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available, with respect to matters occurring prior to the Effective Time, for a cost not
exceeding the Tail Cap.
(e) Notwithstanding
anything herein to the contrary, if an Indemnified Person is or has been a party to or is or has been otherwise involved (including as a witness) in any
Proceeding (whether arising before, at or after the Effective Time) on or prior to the sixth anniversary of the Effective Time, the provisions of this
Section 7.04
shall continue in effect until
the final disposition of such Proceeding.
(f) If
Parent, the Surviving Corporation or any of their successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing
or surviving company or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to
the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this
Section 7.04
.
(g) The
rights of each Indemnified Person under this
Section 7.04
shall be in addition to any rights such Person may
have under the certificate of incorporation, bylaws or other governing documents of the Company or any of its Subsidiaries, under Delaware Law or any other Applicable Law (in the case of non-Delaware
entities) under any agreement of any Indemnified Person with the Company or any of its Subsidiaries. These rights shall survive consummation of the Merger and are intended to benefit, and shall be
enforceable by, each Indemnified Person and his or her heirs and representatives, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such
person may have by contract or otherwise.
Section 7.05.
Employee Matters
.
(a) For
a period of twelve (12) months following the Closing, Parent shall, and shall cause its Subsidiaries (including the Company and its Subsidiaries) to, provide
to each Company Employee who is employed immediately prior to the Closing and who becomes an employee of Parent, the Company or any of its Subsidiaries upon the Closing (each such individual, a
"
Continuing Employee
") employee benefits that are no less favorable in the aggregate than the level of such employee benefits provided to such employees
on the date hereof.
(b) For
a period of twelve (12) months following the Closing, Parent shall maintain the employee severance protections set forth in
Section 7.05(b)
of the Company Disclosure Letter, which shall be in
lieu of any Parent severance plans or benefits.
(c) Parent
shall, and shall cause its Subsidiaries (including the Company and its Subsidiaries) to, cause each Parent Employee Plan to (i) recognize the pre-Closing
service of participating Continuing Employees with the Company for all purposes of vesting, eligibility and benefit entitlement (but not for purposes of pension benefit accrual), except to the extent
such service credit would result in a duplication of benefits for the same period, (ii) waive any pre-existing condition limitations for participating Continuing Employees and (iii) use
commercially reasonable efforts to provide credit to each participating Continuing Employee under the applicable Parent Employee Plan for amounts paid by the Continuing Employee prior to the Closing
during the year in which the Closing occurs under any analogous Company Employee Plan during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such
amounts had been paid in accordance with the terms of such Parent Employee Plan.
(d) Parent
shall cause the Company and its Subsidiaries to continue to credit under any applicable Parent Employee Plans each Continuing Employee for all vacation and
personal holiday pay that such Continuing Employee is entitled to use but has not used as of the Closing.
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(e) Parent
and Merger Subsidiary hereby acknowledge that (i) the Merger will constitute a "Change in Control" (or concept of similar import) under the Company
Employee Plans and (ii) as a result of the Merger, the individuals identified in Section 7.05(e) of the Company Disclosure Letter will be deemed to have experienced a "Good Reason" event
(or concept of similar import), as applicable, for all purposes under the Company Employee Plans.
(f) The
Company shall pay annual cash bonuses to executive officers and other key corporate office employees covered by the Carmike Annual Executive Bonus Program (the
"
Executive Plan
") for the period ending December 31, 2016 as follows: (i) if the Closing occurs prior to December 31, 2016, annual
cash bonuses will be paid at the target performance level on a pro-rata basis, (ii) if the Closing occurs on or after December 31, 2016 and if the compensation committee of the Company's
Board of Directors (the "
Compensation Committee
") has certified the performance results prior to Closing, annual cash bonuses will be paid based on
actual achieved performance, and (iii) if the Closing occurs on or after December 31, 2016 and if the Compensation Committee has not certified the performance results prior to Closing,
annual cash bonuses will be paid at the target performance level. The Company shall pay annual cash bonuses to individuals not covered by the Executive Plan in accordance with the terms of the
applicable bonus plan. The Company shall pay the annual cash bonuses that are contemplated by this
Section 7.05(f)
on the earlier of
(A) immediately prior to the Closing and (B) the date that is consistent with the Company's past practices. For the avoidance of doubt, it is the intent of the Parties that the annual
cash bonuses contemplated by this
Section 7.05(f)
are in addition to the severance arrangements set forth on
Section 4.19(a)
of the Company
Disclosure Letter.
(g) Nothing
in this
Section 7.05
, express or implied, is intended to or shall confer upon any other Person, including
any Continuing Employee, any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, and no provision of this
Section 7.05
shall constitute an amendment of, or an
undertaking to amend, any Company Employee Plan or Parent Employee Plan.
Section 7.06.
NYSE Listing.
Parent shall cause the shares of Parent
Class A Common Stock which are to be issued to the holders of the Company Stock upon consummation of the Merger to
be approved for listing on the NYSE, subject to official notice of issuance, prior to the Effective Time.
Section 7.07.
No Other Representations and Warranties.
Except for the representations and
warranties set forth in
Article 4
, each of Parent and Merger Subsidiary
acknowledges and agrees that no other representation or warranty of any kind whatsoever, express or implied, at law or in equity, is made or shall be deemed to have been made by or on behalf of the
Company or its Subsidiaries with respect to their respective businesses, affairs, assets, liabilities, financial conditions, results of operations or prospects or with respect to the accuracy or
completeness of any other information provided or made available to Parent or Merger Subsidiary by or on behalf of the Company or its Subsidiaries, and the Company hereby disclaims any such
representation or warranty, whether by or on behalf of the Company, and notwithstanding the delivery or disclosure to Parent or Merger Subsidiary, any of their respective Subsidiaries or any of their
Representatives or Affiliates of any documentation or other information by the Company or any of its Representatives with respect to any one or more of the foregoing. Neither the Company nor any of
its Representatives or Affiliates will have or be subject to any liability or obligation to Parent or Merger Subsidiary or any other Person resulting from the distribution in written or verbal
communications to Parent or Merger Subsidiary of any such information, including any information, documents, projections, forecasts or other material made available to Parent or to Merger Subsidiary
in online "data rooms," confidential information memoranda or management interviews and presentations.
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ARTICLE 8
COVENANTS OF PARENT AND THE COMPANY
Section 8.01.
Regulatory Undertakings.
(a) Upon
the terms and subject to the conditions of this Agreement, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate and make effective, as soon as practicable (and in any
event prior to the End Date), the transactions contemplated by this Agreement, including (i) obtaining and maintaining all necessary actions or nonactions, waivers, consents, licenses, permits,
authorizations, orders and approvals (collectively, "
Approvals
") from Governmental Authorities and the making of all other necessary registrations and
filings, (ii) obtaining all Approvals from third parties that are necessary or desirable in connection with the transactions contemplated by this Agreement, (iii) the execution and
delivery of any additional instruments necessary to consummate any of the transactions contemplated by, and to fully carry out the purposes of, this Agreement and (iv) providing all such
information concerning such Party, its Ultimate Parent Entity, its Affiliates, its Affiliates' officers, directors, employees and partners, and, in the case of Parent, the Wanda Group Parties and
their respective officers, directors, employees and partners, as may reasonably be requested in connection with any of the matters set forth in this
Section 8.01
. None of the Parties shall, nor
shall it permit any of its Affiliates to take or agree to take any action that would reasonably be
expected to impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any Approvals from any Governmental Authority with respect to the transactions contemplated
by this Agreement. Nothing set forth in this
Section 8.01
limits, modifies, waives, amends or otherwise adversely affects (A) the
Company's rights under
Section 6.04
or (B) any Party's rights under
Article 10
.
(b) Subject
to
Section 8.01(c)
, each of Parent and the Company shall (i) make or cause to be made the filings
required of such Party or any of its Affiliates, and in the case of Parent, any Wanda Group Party or its Ultimate Parent Entity, under the HSR Act with respect to the transactions contemplated by this
Agreement as promptly as practicable and advisable as mutually agreed by the Parties, and not later than September 30, 2016, unless otherwise agreed to by the Parties in writing,
(ii) make or cause to be made such other filings as are required under Applicable Law by such Party or any of its Affiliates in foreign jurisdictions governing antitrust, competition, trade
regulation or similar matters as soon as reasonably practicable after the date of this Agreement, (iii) comply with any request for additional information, documents or other materials received
by such Party or any of its Affiliates from the Federal Trade Commission (the "
FTC
"), the Department of Justice (the
"
DOJ
") or any other Governmental Authority under the HSR Act or any other Applicable Laws when practicable and advisable as mutually agreed by the
Parties and (iv) subject to
Section 8.01(e)
, cooperate in good faith with the other Party in obtaining all Approvals required under
Applicable Laws and in connection with any such filing and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Authority under any Applicable Laws
with respect to any such filing or any such Approval.
(c) Parent
and the Company shall coordinate with respect to the overall strategy relating to the Antitrust Laws, including with respect to any filings, notifications,
submissions and communications with or to any antitrust regulatory authority;
provided
,
however
, that
(x) subject to the other provisions of this
Section 8.01
, Parent shall make the final determination as to the appropriate course of action
and (y) neither Parent nor the Company shall be constrained from complying with Applicable Law. Each Party shall (i) consult and cooperate with the other Party regarding, allow the other
Party to have a reasonable opportunity to review in advance prior to their submission (if applicable) and consider in good faith the views of the other Party regarding the form and content of, any
filings, correspondence, written communications, analyses, appearances, presentations, memoranda, briefs, arguments, opinions
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and
proposals made or submitted by or on behalf of either Party in connection with proceedings under or relating to any Antitrust Laws, (ii) promptly furnish the other Party with copies of all
correspondence, filings and written communications between them and their Affiliates and their respective representatives, on the one hand, and any such Governmental Authority or its respective staff
on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement and (iii) give the other Party the opportunity to attend and participate in any in-person
meetings, and to the extent reasonably practicable, substantive telephone calls with the DOJ, the FTC or any other Governmental Authority (to the extent permitted by the DOJ, the FTC or such
Governmental Authority) with respect to the subject matter of this
Section 8.01
(including with respect to any of the actions referred to
in Section 8.01(d)
and
Section 8.01(e)
) and, if the other Party is prohibited by
Applicable Laws or by the DOJ, the FTC or such Governmental Authority from attending and participating in any such meetings or calls, keep the other Party reasonably apprised with respect thereto to
the extent permitted under Applicable Law. Each Party shall use its reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to
any Applicable Law in connection with the transactions contemplated by this Agreement. Neither Party will directly or indirectly extend any waiting period under the HSR Act or enter into any agreement
with a Governmental Authority related to this Agreement or the transactions contemplated
by this Agreement except with the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding any provisions of this
Section 8.01
to the contrary, (A) materials provided to the other Party pursuant to this
Section 8.01
may be redacted (x) to remove references concerning the valuation of Parent, the Company
or any of their Subsidiaries,
(y) as necessary to comply with contractual arrangements, and (z) as necessary to address privilege or confidentiality concerns and (B) each Party shall have the right to
designate any information as attorneys eyes only.
(d) In
connection with and without limiting
Section 8.01(a)
, but subject to
Section 8.01(e)
, each of Parent and the Company shall use its reasonable
best efforts to take such action as may be required to cause the
expiration or termination of the waiting periods under the HSR Act or other Antitrust Laws with respect to the transactions contemplated by this Agreement as soon as practicable after the execution of
this Agreement (and in any event prior to the End Date), including using its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Authority under the HSR
Act, the Sherman Act, as amended, the Clayton Act, as amended, the Federal Trade Commission Act, as amended, and any other federal, state or foreign statues, rules, regulations, orders, decrees,
administrative or judicial doctrines or other laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively,
"
Antitrust Laws
"). In connection therewith and subject to
Section 8.01(e)
, if any Proceeding is
instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Applicable Laws, each of Parent and the Company shall, and shall cause their
respective Affiliates to vigorously contest and resist any such Proceeding (through negotiation, litigation or otherwise), including any administrative or judicial action, and to have vacated, lifted,
reversed or overturned any decree, judgment, injunction or other order whether temporary, preliminary or permanent (each an "
Order
"), that is in effect
and that prohibits, prevents, delays or restricts the consummation of the transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and
judicial appeal.
(e) Notwithstanding
anything to the contrary in this Agreement, the Company shall not, without the written consent of Parent, agree to or effect any Antitrust Action
required by any Governmental Authority. If necessary to avoid the commencement of any Proceeding by any Governmental Authority challenging the transactions under this Agreement under any Applicable
Laws, or if already commenced, to avoid the entry of, or to effect the dissolution of, any Order that would prohibit, prevent or restrict the consummation of the transactions contemplated by this
Agreement, then, subject to the penultimate sentence of this
Section 8.01(e)
, Parent shall, and shall cause its Affiliates to, offer,
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negotiate
and agree to, and shall effect, any Antitrust Action with respect to Parent's, the Company's or their respective Affiliates' businesses or assets;
provided
that Parent shall not be required to agree to
or effect any Antitrust Actions with respect to any of Parent's, the Company's or their
respective Affiliates' businesses or assets if such Antitrust Actions have a Regulatory Material Adverse Effect. Notwithstanding the foregoing or anything contained in this Agreement to the contrary,
Parent shall not be required to agree to or effect any Antitrust Action with respect to the Company, Parent or any
of their respective Affiliates' businesses or assets unless such actions are conditioned upon the occurrence of the Closing or are effective on or after the Closing, and no Party shall be required to
waive any of the conditions set forth in
Article 9
as they apply to such Party. None of the actions taken or proposed to be taken pursuant to
this
Section 8.01(e)
shall be deemed to result in a breach of the representations and warranties set forth in this Agreement or shall be
considered for purposes of determining whether a Company Material Adverse Effect or a Parent Material Adverse Effect has occurred.
(f) (i)
Prior to the Closing, Parent shall, and shall cause its Affiliates to, offer, negotiate and agree to, the sale of the Proscribed Theatres; and (ii) Parent
shall, and the Company shall reasonably cooperate to, effect the sale of the Proscribed Theatres simultaneously with the Closing on the terms negotiated by Parent;
provided
that (A) neither Parent
nor the Company shall be constrained from complying with Applicable Law; and (B) the sale of the
Proscribed Theatres is contingent on the Closing.
Section 8.02.
Certain Filings.
(a) The
Company and Parent shall cooperate with one another (i) in connection with the preparation of the Company Proxy Statement/Prospectus and the Form S-4,
(ii) in determining whether any action by or in respect of, or filing with, any Governmental Authority is required, or any actions, consents, approvals or waivers are required to be obtained
from Parties to any material contracts, in connection with the consummation of the transactions contemplated by this Agreement and (iii) in taking such actions or making any such filings,
furnishing information required in connection therewith or with the Company Proxy Statement/Prospectus and the Form S-4 and seeking timely to obtain any such actions, consents, approvals or
waivers. The Company shall, and shall cause its Subsidiaries, officers and employees to, use commercially reasonable efforts to (A) obtain accountants' comfort letters reasonably requested by
Parent in connection with the Form S-4 and (B) cause accountants to consent to the use of their reports in the Form S-4.
(b) As
promptly as reasonably practicable following the date of this Amended and Restated Merger Agreement, Parent and the Company shall prepare and file with the SEC the
Form S-4 which includes the Company Proxy Statement/Prospectus. Each of Parent and the Company shall use reasonable best efforts to have the Form S-4 declared effective under the 1933
Act as promptly as practicable after such filing and to keep the Form S-4 effective as long as is necessary to consummate the Merger and other transactions contemplated hereby, and the Company
shall mail or deliver the Company Proxy Statement/Prospectus to the Company's stockholders as promptly as practicable after the Form S-4 is declared effective. Each of Parent and the Company
shall furnish all information as may be reasonably requested by the other in connection with any such action and the preparation, filing and distribution of the Form S-4 and the Company Proxy
Statement/Prospectus. Each of Parent and the Company shall, as promptly as practicable after receipt thereof, provide the other Party with copies of any written comments and advise the other Party of
any oral comments with respect to the Company Proxy Statement/Prospectus or the Form S-4 received by the SEC. Each Party shall cooperate and provide the other Party with a reasonable
opportunity to review and comment on any amendment or supplement to the Company Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC and if required, the Company shall
disseminate to the Company's stockholders, as promptly as reasonably practicable, any amendment of or supplement to the Company Proxy Statement/Prospectus required as a result of such comments or as
otherwise required by Applicable Law. No filing of, or
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amendment
or supplement to, the Form S-4 or the Company Proxy Statement/Prospectus, or response to SEC comments with respect thereto, will be made by Parent or the Company, as applicable,
without the other's prior consent (which shall not be unreasonably withheld, conditioned or delayed). Parent and the Company shall use reasonable best efforts to take any other action required to be
taken under the 1933 Act, 1934 Act, Delaware Law and the rules of NASDAQ and the NYSE, in connection with the filing and distribution of the Company Proxy Statement/Prospectus and the Form S-4,
and the solicitation of proxies from the Company's stockholders, as the case may be, thereunder.
(c) If
at any time prior to the Effective Time any information relating to Parent or the Company, or any of their respective Subsidiaries, officers or directors, is
discovered by Parent or the Company which should be set forth in an amendment or supplement to any of the Form S-4 or the Company Proxy Statement/Prospectus, so that any of such documents would
not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the
Party that discovers such information shall promptly notify the other Parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to
the extent required by Applicable Law, disseminated to the stockholders of the Company.
(d) From
the date of this Amended and Restated Merger Agreement until the Effective Time, the Company shall, and shall cause its Subsidiaries, officers and employees to, use
commercially reasonable efforts to provide to Parent, upon Parent's reasonable request, financial and other pertinent information relating to the Company and its Subsidiaries to assist Parent in
preparing any registration statement that Parent may be required to file with the SEC in connection with its pending acquisition of Odeon and UCI Cinemas Holdings Limited and its Affiliates (the
"
Odeon Registration Statement
"). The Company shall, and shall cause its Subsidiaries, officers and employees to, use commercially reasonable efforts to
(A) obtain accountants' comfort letters reasonably requested by Parent in connection with the Odeon Registration Statement and (B) cause accountants to consent to the use of their
reports in the Odeon Registration Statement.
(e) Parent
shall promptly, upon request by the Company, reimburse the Company for any of its reasonable and documented out-of-pocket costs and expenses (including reasonable
attorneys' fees) incurred by the Company or any of its Subsidiaries or their respective Affiliates in connection with
Section 8.02(d)
, and Parent
shall indemnify and hold harmless the Company and its Subsidiaries and their respective Affiliates and Representatives for and against any and all losses, suffered or incurred by them in connection
therewith, any action taken by them in connection therewith and any information utilized in connection therewith;
provided
,
however
, that the foregoing
indemnification obligation shall not apply to the extent that the relevant amounts result from the Company's or its
Subsidiaries or their respective Affiliates' bad faith, willful misconduct or gross negligence or material breach of this Agreement, in each case as determined by a final and non-appealable judgment
of a court of competent jurisdiction.
Section 8.03.
Parent Financing.
(a) Parent
shall use its reasonable best efforts to, and shall cause its Subsidiaries to use reasonable best efforts to, obtain and consummate the Financing on the terms and
conditions described in or contemplated by the Debt Commitment Letters (including the "market flex" provisions in any Debt Commitment Letter or Fee Letter) including using its reasonable best efforts
to (i) negotiate and enter into the Debt Financing Documents on such terms and conditions (as such terms may be modified or adjusted in accordance with (x) the terms of, and within the
limits of any such "market flex" provisions and (y) this
Section 8.03
), (ii) if all of the conditions to the Closing contained in
Article 9
are satisfied or waived (other than those conditions that by their terms are to be satisfied or waived at the Closing or will be
satisfied or waived upon funding) and the Marketing Period has ended, satisfy on a timely basis (or obtain a waiver of) all conditions applicable to Parent and Merger
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Subsidiary
contained in the Debt Commitment Letters that are within its or their control, (iii) cause the lenders party to the Debt Commitment Letters to fund at the Closing the full amount of
the Financing
required to consummate the transactions contemplated by this Agreement, if all of the conditions to the Closing contained in
Article 9
are
satisfied or waived (other than those conditions that by their terms are to be satisfied or waived at the Closing or will be satisfied or waived upon funding) and (iv) maintain in effect and
comply with its obligations under (x) the Debt Commitment Letters and (y) to the extent necessary to obtain and consummate the Financing, the Existing Credit Facility. Parent shall not
agree to any amendment or modification to be made to, or any waiver of any provision or remedy, under the Debt Commitment Letters or the Existing Credit Facility without the prior written consent of
the Company;
provided
that notwithstanding the foregoing Parent shall be permitted to amend the Debt Commitment Letters (A) to add purchasers,
lenders, lead arrangers, book-runners, syndication agents or similar entities who had not executed any Debt Commitment Letter as of the date of this Amended and Restated Merger Agreement provided,
further, that no such addition shall relieve the original Lenders of their obligations under the Debt Commitment Letters prior to the initial funding of the Financing, except as set forth in the Debt
Commitment Letters in respect of the "Additional Initial Lenders" (as defined thereunder), or (B) so long as such amendments or modifications do not, or could not be reasonably expected to,
materially delay, prevent or adversely affect the Closing or the consummation of the Financing. Parent shall pay, or cause to be paid, as the same shall become due and payable, all fees and other
amounts payable under the Debt Commitment Letters, Fee Letters and the Debt Financing Documents as required for funding of the full amount of the Financing at Closing. Upon any amendment, supplement
or modification of the Debt Commitment Letters or the Existing Credit Facility (as the case may be) in accordance with this
Section 8.03
, Parent
shall provide a copy thereof to the Company and the term "Debt Commitment Letters" shall mean the Debt Commitment Letters as so amended, supplemented or modified and the term "Existing Credit
Facility" shall mean the Existing Credit Facility as so amended, supplemented or modified.
(b) If
all or any portion of the Financing becomes unavailable on the terms and conditions set forth therein (including the "market flex" provisions in any Debt Commitment
Letter or Fee Letter), Parent shall promptly notify the Company, and Parent shall, and shall cause its Subsidiaries to, use its reasonable best efforts to promptly obtain substitute financing (on
terms and conditions that are not materially less favorable to Parent and Merger Subsidiary, taken as a whole, than the terms and conditions as set forth in the Debt Commitment Letters, taking into
account any "market flex" provisions in any Debt Commitment Letter or Fee Letter) sufficient to enable Parent to consummate the Merger and the other transactions contemplated hereby in accordance with
their terms (the "
Substitute Financing
") and obtain a new commitment letter that provides for such Substitute Financing and, promptly after execution
thereof, deliver to the Company true, complete and correct copies of the new commitment letter and fee letter (redacted in the manner required thereby). Such Substitute Financing shall be deemed to be
a part of the "Financing" and any commitment letter and fee letter for such Substitute Financing shall be deemed a "Debt Commitment Letter" and "Fee Letter" for all purposes of this Agreement.
(c) Parent
and Merger Subsidiary shall give the Company prompt written notice: (i) of any material breach or default under the Debt Commitment Letter by any party
thereto or an Event of Default as defined in and under the Existing Credit Facility, (ii) of the receipt of any written notice from any party to any Debt Commitment Letter with respect to any
actual or threatened material breach, default, withdrawal, termination or repudiation of any provisions of any Debt Commitment Letter by such party, (iii) of the receipt of any written notice
from any party to the Existing Credit Facility with respect to any Event of Default as defined in and under the Existing Credit Facility, and (iv) if for any reason Parent or Merger Subsidiary
believes in good faith that it will not be able to timely obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letters.
Promptly following any reasonable written request by the Company therefor, Parent shall provide the Company any information reasonably requested by the
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Company
in writing relating to any circumstance referred to in the immediately preceding sentence. Parent shall keep the Company reasonably informed on a reasonably current basis in reasonable detail
of the status of its efforts to arrange the Financing (or Substitute Financing obtained in accordance with
Section 8.03(b)
), including all
material activity and timing considerations.
(d) On
and prior to the Closing, the Company shall, subject to expense reimbursement as provided in clause (e) below, and shall cause its Subsidiaries, officers and
employees, and shall use commercially reasonable efforts to cause its advisors and representatives (including legal and accounting) to, cooperate, as may be reasonably requested, with Parent's efforts
to consummate the Financing, including to do the following: (i) at reasonable times and upon reasonable notice, participate in, and assist in preparation for, customary meetings, presentations,
road shows, conference calls, drafting sessions, due diligence sessions and sessions with rating agencies in connection with the Financing or any offering of high-yield debt securities under
Rule 144A of the 1933 Act, (ii) assist with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda,
prospectuses and similar documents required in connection with the Financing or any offering of high-yield debt securities under Rule 144A of the 1933 Act and executing and delivering customary
authorization letters;
provided
,
however
, that any private placement memoranda or prospectuses in
relation to high yield debt or equity securities need not be issued by the Company or any of its Subsidiaries;
provided
,
further
, that any such memoranda
or prospectuses shall contain disclosure and financial statements with respect to the Company or the Surviving
Corporation reflecting the Surviving Corporation and/or its Subsidiaries as the obligor(s), (iii) furnish Parent and Merger Subsidiary and their Financing Sources with the Required Financial
Information and other pertinent information regarding the Company as may be reasonably requested by Parent that are necessary for the satisfaction of the obligations and conditions set forth in the
Debt Commitment Letters, (iv) using commercially reasonable efforts to obtain accountants' comfort letters reasonably requested by Parent and to cause accountants to consent to the use of their
reports in any material relating to the Financing or any offering of high-yield debt securities under Rule 144A of the 1933 Act, (v) assist in preparation, negotiation, execution and
delivery of definitive financing documentation and schedules and exhibits thereto, (vi) facilitate the entrance into other documents and instruments relating to guarantees, the pledge of
collateral and other matters ancillary to the Financing or any offering of high-yield debt securities under Rule 144A of the 1933 Act as may be reasonably requested by Parent in connection with
the Financing or any offering of high-yield debt securities under Rule 144A of the 1933 Act and otherwise reasonably facilitating the pledge of collateral and providing of guarantees
contemplated by the Debt Commitment Letters; provided, that any obligations of the Company or any of its Subsidiaries contained in all such agreements and documents shall be subject to the occurrence
of the Closing and effective no earlier than the Closing, (vii) assist in obtaining customary debt pay-off letters (if any) with respect to the Company's existing credit facility,
(viii) using commercially reasonable efforts to ensure that the syndication efforts in respect of the Financing benefit from the existing lending relationships of the Company,
(ix) furnish Parent and its Financing Sources as promptly as practicable, and in any event no later than 3 Business Days prior to the Closing, all documentation and other information required
by regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act, to the extent requested in writing by
Parent at least 10 Business Days prior to the Closing, (x) coordinate (A) a request for a waiver under the Company's existing indenture governing its senior notes in connection with any
change of control that may result from the transactions provided for in this Agreement (it being understood and agreed that any waiver fee shall be paid by Parent and any solicitation agent appointed
in connection with a waiver or consent solicitation shall be appointed and paid for by Parent) and (B) a request for any amendments to the indenture as may be reasonably requested by the Parent
(including using commercially reasonable efforts to conduct a consent solicitation (it being understood and agreed that any consent fee shall be paid by Parent and any solicitation agent appointed in
connection with a consent solicitation shall be appointed and paid by
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Parent),
to enter into and cause the trustee to enter into a supplemental indenture effecting such waiver (if successful) and applicable amendments requested by Parent, and provide and cause counsel
to provide any opinion or certificate required under the indenture in connection with a successful request for a waiver or amendment) and (xi) cause the taking of corporate actions by the
Company and its Subsidiaries reasonably necessary to permit the consummation of the Financing or any offering of high-yield debt securities under Rule 144A of the 1933 Act at the Closing; it
being understood and agreed that no such corporate action will be required to take effect prior to the Closing;
provided
that, notwithstanding anything
to the contrary contained in this Agreement (including this
Section 8.03
), (A) nothing in this Agreement (including this
Section 8.03
) shall
require any such cooperation to the extent that it would (1) require the Company or any of its Subsidiaries or
Representatives, as applicable, to waive or amend any terms of this Agreement or agree to pay any commitment or other fees or reimburse any expenses prior to the Effective Time, or incur any liability
or give any indemnities or otherwise commit to take any action (other than with respect to any authorization letter described above in clause (d)(ii)) that is not contingent upon the Effective
Time, (2) unreasonably interfere with the ongoing business or operations of the Company and its Subsidiaries it being understood and agreed that compliance with the requirements set forth in
clause (d) above will not unreasonably interfere with the business or operations of the Company or any of its Subsidiaries, (3) require the Company or any of its Subsidiaries to take any
action that will conflict with or violate the Company's organizational documents or any Applicable Law or result in the material contravention of, or that would reasonably be expected to result in a
material violation or material breach of, or material default under, any Company Material Contract, (4) require the Company or its Subsidiaries to enter into or approve any financing or
purchase agreement with respect to any matter relating to the Financing, (5) require any pre-Closing directors or managers of the Company or any of its Subsidiaries, acting in such capacity, to
adopt any resolutions approving any Debt Financing Documents or to execute, enter into, deliver or perform any Debt Financing Documents, (6) require any officers or other authorized signatories
of the Company or any of its Subsidiaries to execute, enter into, deliver or perform any Debt Financing Documents whose effectiveness is not contingent upon the Closing or that would be or become
effective prior to the Effective Time, or (7) result in any officer, director or Representative of the Company or any of its Subsidiaries incurring any personal liability with respect to any
matters relating to the Financing, and (B) no action, liability or obligation of the Company or any of its Subsidiaries or any of their respective Representatives under any Debt Financing
Documents shall be effective until the Effective Time, other than with respect to any authorization letter described above in clause (d)(ii)). The Company consents to the reasonable use of the
Company's logos in connection with any Financing in a manner customary for such financing transaction, provided that such logos are used solely in a manner that is not intended to or reasonably likely
to harm or disparage the Company or any of its products, services, offerings or intellectual property rights.
(e) Parent
shall promptly, upon request by the Company, reimburse the Company for any of its reasonable and documented out-of-pocket costs and expenses (including reasonable
attorneys' fees) incurred by the Company or any of its Subsidiaries or their respective Affiliates at Parent's request in connection with the cooperation of the Company contemplated by this
Section 8.03
and shall indemnify and hold harmless the Company and its Subsidiaries and their respective Affiliates and Representatives for and
against any and all losses, suffered or incurred by them in connection with the arrangement of the Financing, any action taken by them at the request of Parent pursuant to this
Section 8.03
and any
information utilized in connection therewith (other than information provided by the Company and its Affiliates);
provided
,
however
, that this
clause (e) shall not apply to the extent that the relevant amounts
result from the Company's or its Subsidiaries or their respective Affiliates' bad faith, willful misconduct or gross negligence or material breach of this Agreement, in each case as determined by a
final and non-appealable judgment of a court of competent jurisdiction.
(f) The
Company shall, and shall cause its Subsidiaries to (i) periodically update any applicable Required Financial Information provided by them or on their behalf
as may be necessary so that such
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Required
Financial Information is (A) Compliant, and (B) meets the applicable requirements set forth in the definition "Required Financial Information" , and (ii) notify Parent in
writing if (1) the Company determines that it must restate any financial statements included in the Required Financial Information or (2) the applicable independent accountants for the
Company shall have withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information for which they have provided an opinion.
(g) All
non-public or other confidential information provided by the Company, its Subsidiaries or their respective Representatives pursuant to this
Section 8.03
shall be kept confidential in accordance
with the Confidentiality Agreement;
provided
that notwithstanding the terms of the Confidentiality Agreement, Parent shall be permitted to disclose such information to the Financing
Sources identified in the Debt Commitment Letters, any provider of Substitute Financing and their respective Representatives in connection with the Financing and any Substitute Financing and any other
potential source of debt financing in connection with the transactions contemplated herein so long as such Persons agree to be bound by the confidentiality provisions of the Confidentiality Agreement,
the confidentiality provisions set forth in the Debt Commitment Letters or other reasonable and customary confidentiality undertakings in respect of transactions similar to that contemplated by the
Financing or any Substitute Financing.
Section 8.04.
Public Announcements.
Except in connection with actions taken pursuant to, and
otherwise in accordance with,
Section 6.04
and
Article 10
, each of Parent and the Company shall (a) not issue any such press release or make
any such other public statement with respect
to this Agreement or the transactions contemplated hereby without the prior consent of the other Party, which shall not be unreasonably withheld, conditioned or delayed, except in respect of any
public statement or press release as may be required by Applicable Law or any listing agreement with or rule of any national securities exchange or association, in which case such Party shall use
reasonable best efforts to consult with the other Party to extent practicable and (b) consult with each other before scheduling any press conference or conference call with investors or
analysts with respect to this Agreement or the transactions contemplated hereby.
Section 8.05.
Further Assurances.
At and after the Effective Time, the officers and directors of
the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of
the Company or Merger Subsidiary, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on behalf of the Company or Merger Subsidiary, any other actions and things to
vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the rights, properties or assets of the Company acquired or
to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger.
Section 8.06.
Notices of Certain Events.
Each of the Company and Parent shall promptly notify
the other of:
(a) any
notice or other communication from any Person alleging that the consent of such Person is required in connection with the transactions contemplated by this
Agreement;
(b) any
notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement; and
(c) any
actions, suits, claims, investigations or proceedings commenced or threatened against, or involving the Company any of its Subsidiaries or Parent, as the case may
be, that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to any Section of this Agreement or that relate to the consummation of the transactions
contemplated by this Agreement.
Notwithstanding
any of the foregoing, the delivery of any notice pursuant to this
Section 8.06
shall not limit or otherwise affect
the remedies available hereunder to the Party receiving that notice.
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Section 8.07.
Section 16 Matters.
Prior to the Effective Time, the Company
shall take all such steps as may be required to cause any dispositions of Company Stock (including derivative securities
with respect to Company Stock) by each individual who is subject to the reporting requirements of Section 16(a) of the 1934 Act with respect to the Company to be exempt under Rule 16b-3
promulgated under the 1934 Act.
Section 8.08.
Defense of Litigation.
The Company shall control, and the Company shall consult
with Parent and keep Parent reasonably informed with respect to any material developments regarding, the
defense of any Proceeding brought by any of the Company's stockholders against the Company or its directors or officers arising out of or relating to transactions contemplated by this Agreement;
provided
,
however
, that the Company shall not settle any such Proceeding (a) without the prior
written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), (b) unless permitted by
Section 6.01(q)
or (c) unless such settlement would not
impose any material obligations that relate to the operation of the business of
the Company or its Subsidiaries following the Effective Time.
Section 8.09.
No Control of Other Party's Business.
Subject to the terms and conditions of this
Agreement, nothing contained in this Agreement is intended to give Parent, directly or indirectly, the right to
control the Company's or its Subsidiaries' operations prior to the Effective Time, and nothing contained in this Agreement is intended to give the Company, directly or indirectly, the right to control
Parent's or its Subsidiaries' operations prior to the Effective Time. Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this
Agreement, complete control over its and its Subsidiaries' respective operations.
ARTICLE 9
CONDITIONS TO THE MERGER
Section 9.01.
Conditions to the Obligations of Each Party.
The obligations of the Company, Parent and
Merger Subsidiary to consummate the Merger are subject to the satisfaction of the following conditions:
(a) the
Company Stockholder Approval shall have been obtained in accordance with Delaware Law;
(b) the
shares of Parent Class A Common Stock to be issued to the holders of Company Stock upon consummation of the Merger shall have been authorized for listing on
the NYSE, subject to official notice of issuance;
(c) the
Form S-4 shall have become effective under the 1933 Act and no stop order suspending the effectiveness of the Form S-4 shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the SEC;
(d) no
Proceeding brought by any Governmental Authority in the United States of America pursuant to Antitrust Laws is pending that challenges or seeks to prevent, enjoin,
alter or delay the Merger or any of the other transactions contemplated hereby, and no restraining order, preliminary or permanent injunction or other order issued by any court of competent
jurisdiction or any Governmental Authority in the United States of America preventing the consummation of the Merger shall have taken effect after the date hereof and shall still be in effect; and
(e) any
applicable waiting period (and any extension of such period) under the HSR Act relating to the Merger shall have expired or been terminated and any agreement with
any Governmental Authority with respect to the HSR Act not to close the transaction shall have expired or been terminated.
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Section 9.02.
Conditions to the Obligations of Parent and Merger Subsidiary.
The obligation of
Parent and Merger Subsidiary to consummate the Merger is further subject to the satisfaction at or prior to the Effective Time of each of the
following conditions:
(a) The
representations and warranties of the Company set forth in (i)
Article 4
(other than in
Sections 4.01
(first sentence only),
4.02(a)
,
4.04(a)
,
4.05
,
4.09
,
4.27
,
4.29
and
4.30
) shall be true and correct both at
and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where such failures to be so true and correct (without regard to
"materiality," Company Material Adverse Effect and similar qualifiers contained in such representations and warranties) have not had, and would not reasonably be expected to have, individually or in
the aggregate, a Company Material Adverse Effect, (ii)
Section 4.05
shall be true and correct (without regard to "materiality," Company
Material Adverse Effect and similar qualifiers contained in such representations and warranties) at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of
the Closing Date, except for inaccuracies that are not material, (iii)
Sections 4.01
(first sentence only) and
4.04(a)
shall be true and correct
in all material respects at and as of the date of this Agreement and at and as of the Closing Date as though made at
and as of the Closing Date, (iv)
Section 4.02(a)
shall be true and correct in all material respects at and as of the date of this
Agreement and as of the date immediately preceding the date of this Amended and Restated Merger Agreement, (v)
Sections 4.27
and
4.29
shall be
true and correct in all material respects at and as of the date of this Amended and Restated Merger Agreement and at and as of the Closing
Date as though made at and as of the Closing Date and (vi)
Sections 4.09
and
4.30
shall be
true and correct both at and as of the date of this Amended and Restated Merger Agreement and at and as of the Closing Date, except where such failures to be so true and correct (without regard to
"materiality," Company Material Adverse Effect and similar qualifiers contained in such representations and warranties) have not had, and would not reasonably be expected to have, individually or in
the aggregate, a Company Material Adverse Effect;
provided, however
, that representations and warranties that are made as of a particular date or period
shall be true and correct (in the manner set forth in clauses (i), (ii), (iii), (iv), (v) and (vi) as applicable) only as of such date and period;
(b) the
Company and its Subsidiaries shall have performed and complied in all material respects with the covenants and obligations under this Agreement contemplated to be
performed or complied with by the Company or its Subsidiaries prior to the Effective Time;
(c) since
the date of this Agreement, there shall not have been any Circumstances that have had, or would reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect and that are continuing;
(d) the
aggregate number of Dissenting Shares shall not equal or exceed 20% of the shares of Company Stock outstanding at the record date for the Company Stockholder
Meeting; and
(e) the
Company shall have delivered to Parent a certificate signed by an executive officer of the Company dated as of the date of the Effective Time certifying that the
conditions specified in
Section 9.02(a)
,
Section 9.02(b)
and
Section 9.02(c)
have been
satisfied.
Section 9.03.
Conditions to the Obligations of the Company.
The obligation of the Company to
consummate the Merger is further subject to the satisfaction at or prior to the Effective Time of each of the following
conditions:
(a) The
representations and warranties of Parent set forth in (i)
Article 5
(other than in
Sections 5.01
(first sentence only),
5.02
,
5.05
,
5.06
,
5.07
,
5.08
,
5.09
,
5.10
,
5.11
,
5.12
,
5.17,
5.18
and
5.21
) shall be true and correct
both at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where such failures to be so true and correct (without regard to
"materiality," Parent Material Adverse Effect and similar qualifiers
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contained
in such representations and warranties) have not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect,
(ii)
Section 5.01
(first sentence only) shall be true and correct in all material respects at and as of the date of this Agreement and at
and as of the Closing Date as though made at and as of the Closing Date, (iii)
Section 5.02
shall be true and correct in all material
respects at and as of the date of this Agreement and as of the date immediately preceding the date of this Amended and Restated Merger Agreement,
(iv)
Section 5.21
shall be true and correct in all material respects at and as of the date of this Amended and Restated Merger Agreement
and at and as of the Closing Date as though made at and as of the Closing Date,
(v)
Section 5.05(a)
shall be true and correct (without regard to "materiality," Parent Material Adverse Effect and similar qualifiers
contained in such representations and warranties) at and as of the date of this Amended and Restated Merger Agreement and at and as of the Closing Date as though made at and as of the Closing Date,
except for inaccuracies that are not material and (vi)
Sections 5.05(b)
,
5.06
,
5.07
,
5.08
,
5.09
,
5.10
,
5.11
,
5.12
,
5.17
and
5.18
shall be true and correct both at and as of the date of this Amended and Restated Merger
Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where such failures to be so true and correct (without regard to "materiality," Parent Material Adverse
Effect and similar qualifiers contained in such representations and warranties) have not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse
Effect; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i), (ii), (iii),
(iv), (v) and (vi), as applicable) only as of such date and period;
(b) Parent
and its Subsidiaries shall have performed and complied in all material respects with the covenants and obligations under this Agreement contemplated to be
performed or complied with by Parent and its Subsidiaries prior to the Effective Time;
(c) since
the date of this Amended and Restated Merger Agreement, there shall not have been any Circumstances that have had, or would reasonably be expected to have,
individually or in the aggregate, a Parent Material Adverse Effect and that are continuing; and
(d) Parent
shall have delivered to the Company a certificate signed by an executive officer of Parent dated as of the date of the Effective Time certifying that the
conditions specified in
Section 9.03(a)
,
Section 9.03(b)
and
Section 9.03(c)
have been
satisfied.
Section 9.04.
Frustration of Closing Conditions.
Neither the Company nor Parent may rely, either
as a basis for not consummating the Merger or terminating this Agreement and abandoning the Merger, on the failure
of any condition set forth in
Section 9.01
,
Section 9.02
or
Section 9.03
, as the case may be,
to be satisfied if such failure was caused by such Party's breach in any material respect of any provision of
this Agreement or failure in any material respect to use the standard of efforts required from such Party to consummate the Merger and the other transactions contemplated hereby.
ARTICLE 10
TERMINATION
Section 10.01.
Termination.
This Agreement may be terminated and the Merger may be abandoned at any
time prior to the Effective Time (notwithstanding any approval of this Agreement by the
stockholders of the Company or the members of Merger Subsidiary, except as provided in
Section 10.01(d)(i)
), it being understood that any
termination by Parent shall also constitute a termination by Merger Subsidiary:
(a) by
mutual written agreement of the Company and Parent;
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(b) by
either the Company or Parent, if:
(i) the
Merger has not been consummated on or before December 5, 2016 (the "
End Date
");
provided
that if on the third Business Day prior to the End Date, the
condition to Closing set forth in
Section 9.01(d)
or
9.01(e)
shall not have been satisfied but all other conditions to Closing
shall be satisfied or shall be capable of being satisfied upon satisfaction of the condition to Closing set forth in such sections, then Parent or the Company shall have the right to extend the End
Date an additional ninety (90) days (which, if so validly extended, shall become the "End Date" for all purposes under this Agreement) by notifying the other Party in writing of such election
before the End Date;
provided, further
, that if the Marketing Period has not ended as of the third Business Day prior to the End Date and all other
conditions to Closing shall be satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing), the End Date shall be extended automatically to the third
Business Day immediately following the last day of the Marketing Period;
provided, further
, that if the condition to Closing set forth in
Section 9.01(c)
shall not have been satisfied by October 25, 2016, then Parent (only in the case where Parent has complied in all material
respects with its obligations in
Section 8.02
with respect to the Form S-4) or the Company (only in the case where the Company has
complied in all material respects with its obligations in
Section 8.02
with respect to the Form S-4) shall have the right to extend the
End Date for a reasonable period of time to allow the condition to
Closing set forth in
Section 9.01(c)
to be satisfied and the Company Stockholder Meeting to be reconvened and held, but in any event such
extension shall not exceed ninety (90) days from December 5, 2016 (which, if so validly extended, shall become the "End Date" for all purposes under this Agreement) by notifying the
other Party in writing of such election before the End Date,
provided
,
further
,
however
, that (X) the
right to extend the End Date for a failure to satisfy the condition to Closing set forth in
Section
9.01(d)
or
9.01(e)
shall not be available to any Party whose intentional failure to
provide all of the information required pursuant to the HSR Act in the initial filing or upon additional requests from the appropriate regulators or to fulfill any obligation of such Party under this
Agreement shall have caused Section
9.01(d)
or
9.01(e)
not to be satisfied and (Y) the
right to terminate this Agreement pursuant to this
Section 10.01(b)(i)
shall not be available to any Party whose breach of any provision of this
Agreement results in the failure of the Merger to be consummated by the End Date;
(ii) there
shall be any permanent injunction or other order issued by any court of competent jurisdiction preventing the consummation of the Merger and such injunction or
other order shall have become final and nonappealable; or
(iii) at
the Company Stockholder Meeting (including after taking into account any adjournment or postponement thereof in accordance with this Agreement), the Company
Stockholder Approval shall not have been obtained; or
(c) by
Parent, if:
(i) an
Adverse Recommendation Change shall have occurred; or
(ii) a
breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Company set forth in this Agreement shall have occurred
that would cause the condition set forth in
Section 9.02(a)
or
Section 9.02(b)
not to be
satisfied and to be incapable of being satisfied by the End Date; or
(d) by
the Company, if:
(i) at
any time prior to (but not after) receipt of the Company Stockholder Approval (A) the Board of Directors of the Company authorizes the Company, in accordance
with
Section 6.04
, to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal that did not result from a material
breach of
Section 6.04
, (B) concurrently with the termination of this
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Agreement
the Company, in accordance with
Section 6.04
, enters into an Alternative Acquisition Agreement with respect to a Superior Proposal that
did not result from a material breach of
Section 6.04
and (C) prior to or concurrently with such termination, the Company pays to Parent
the Termination Fee pursuant to
Section 11.04
; or
(ii) a
breach of any representation or warranty or failure to perform any covenant or agreement on the part of Parent or Merger Subsidiary set forth in this Agreement shall
have occurred that would cause the conditions set forth in
Section 9.03(a)
or
Section 9.03(b)
not to be satisfied and to be incapable of being
satisfied by the End Date; or
(iii) all
of the conditions set forth in
Article 9
have been satisfied (other than those conditions that by their
terms are to be satisfied at the Closing), the Company has given written notice to Parent and Merger Subsidiary that it is prepared to consummate the Closing, and Parent and Merger Subsidiary fail to
consummate the transactions contemplated by this Agreement on the date that the Closing should have occurred pursuant to
Section 2.01
.
The
Party desiring to terminate this Agreement pursuant to this
Section 10.01
(other than pursuant to
Section 10.01(a)
) shall give notice of such
termination to the other Party.
Section 10.02.
Effect of Termination.
Except as provided in
Section 11.04
, if this Agreement is terminated pursuant to
Section 10.01
, this Agreement shall become void and of no effect without liability of any Party (or
any stockholder, director, officer, employee,
agent, consultant or representative of such Party) to the other Parties;
provided
that if such termination shall result from the intentional failure of
any Party to (a) fulfill a condition to the performance of the obligations of the other Parties or (b) perform a covenant hereof (including the failure to consummate the Merger or any
other transaction contemplated by this Agreement when required to do so, which shall be deemed intentional for purposes of this
Section 10.02
),
such Party shall be fully liable for any and all liabilities and damages (which the Parties acknowledge and agree shall not be limited to reimbursement of expenses or out-of-pocket costs) incurred or
suffered as a result of such failure. The provisions of this
Section 10.02
and
Sections 8.02(e)
,
8.03(e)
,
11.04
,
11.06
,
11.07
,
11.08
,
11.09
,
11.10
and
11.15
shall survive any termination
hereof pursuant to
Section 10.01
.
ARTICLE 11
MISCELLANEOUS
Section 11.01.
Notices.
All notices, requests and other communications to any Party hereunder shall be
in writing (including facsimile transmission and electronic mail
("
e-mail
") transmission, so long as a receipt of such e-mail is requested and received) and shall be given,
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if
to the Company, to:
Carmike
Cinemas, Inc.
1301 First Avenue
Columbus, GA 31901
Attention: Daniel E. Ellis, Senior Vice President, General Counsel and Secretary
Phone No.: 706.576.3400
Facsimile No.: 706.324.0470
E-mail: dellis@carmike.com
with
a copy to:
King &
Spalding LLP
1180 Peachtree Street
Atlanta, Georgia 30309
Attention: Alan J. Prince and C. William Baxley
Facsimile No.: (404) 572-5100
E-mail: aprince@kslaw.com and bbaxley@kslaw.com
or
to such other address or facsimile number as such Party may hereafter specify for the purpose by notice to the other Parties. All such notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. on a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be
deemed to have been received on the next succeeding Business Day in the place of receipt.
Section 11.02.
Survival of Representations and Warranties.
The representations and warranties
contained herein and in any certificate or other writing delivered pursuant hereto shall not survive the Effective Time.
Section 11.03.
Amendments and Waivers.
(a) Any
provision of this Agreement may be amended or waived prior to the Effective Time if, but only if, such amendment or waiver is in writing and is signed, in the case
of an amendment, by each Party to this Agreement or, in the case of a waiver, by each Party against whom the waiver is to be effective;
provided
that
after the Company Stockholder Approval has been obtained there shall be no amendment or waiver that would require the further approval of the stockholders of the Company under Delaware Law without
such approval having first been obtained.
(b) No
failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by Applicable Law.
(c) In
the event that any party seeks an amendment or waiver to this
Section 11.03
or
Section 11.06
,
Section 11.07
,
Section 11.08
,
Section 11.09
, or
Section 11.15
, that is adverse to any Financing Source, the prior written consent of the adversely affected Financing Source shall be required
before any such amendment or waiver may become effective.
Section 11.04.
Expenses.
(a) Except
as otherwise provided herein, all costs and expenses incurred in connection with this Agreement shall be paid by the Party incurring such cost or expense.
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(b)
(i) If
this Agreement is terminated by Parent pursuant to
Section 10.01(c)(i)
, then the Company shall pay to Parent
in immediately available funds Thirty Million Dollars ($30,000,000) (the "
Termination Fee
") within three Business Days after such termination.
(ii) If
this Agreement is terminated by the Company pursuant to
Section 10.01(d)(i)
, then the Company shall pay to
Parent in immediately available funds the Termination Fee concurrently with such termination.
(iii) If
(A) this Agreement is terminated by Parent or the Company pursuant to
Section 10.01(b)(i)
(other than
in circumstances in which Parent is required to pay the Regulatory Termination Fee pursuant to
Section 11.04(b)(iv)
upon such termination) or
Section 10.01(b)(iii)
and at the time of termination all conditions to the consummation of the Merger set forth in
Article 9
, other than the condition set forth in
Section 9.01(a)
, have been satisfied or
waived, (B) an Acquisition Proposal shall have been made (or, in the case of termination by Parent or the Company pursuant to
Section 10.01(b)(iii)
, publicly announced) after the date of this
Agreement and not withdrawn prior to the Company Stockholder Meeting and
(C) within eighteen (18) months following the date of such termination, the Company or any Subsidiary enters into a definitive agreement with respect to an Acquisition Proposal (which is
thereafter consummated) or an Acquisition Proposal shall have been consummated (
provided
that for purposes of this clause (C), each reference to
"20%" in the definition of Acquisition Proposal shall be deemed to be a reference to "50%"), then the Company shall pay to Parent in immediately available funds the Termination Fee upon the
consummation of such Acquisition Proposal.
(iv) If
this Agreement is terminated (i) by the Company or Parent pursuant to
Section 10.01(b)(ii)
,
(ii) by the Company pursuant to
Section 10.01(d)(ii)
due to a material breach by Parent of
Section 8.01
, which breach results in the
conditions set forth in either
Section 9.01(d)
or
Section 9.01(e)
being incapable of being satisfied or (iii) by the Company or Parent pursuant to
Section 10.01(b)(i)
(in the case of
termination by Parent, only under circumstances in which the Company has a concurrent right to terminate
pursuant to
Section 10.01(b)(i)
) and as of the End Date, (A) one or more of the conditions set forth in
Section 9.01(d)
or
Section 9.01(e)
has not been satisfied, including as a result of Parent
not agreeing to take or not taking any Antitrust Actions that have a Regulatory Material Adverse Effect and (B) all of the other conditions set forth in
Article 9
have been satisfied (other
than any such conditions which by their nature cannot be satisfied until the Closing Date but subject to
such conditions being capable of being satisfied if the Closing Date were the date of termination), then Parent will, within three Business Days following any such termination, pay to the Company or
its designee in cash by wire transfer in immediately available funds to an account designated by the Company a termination fee in an amount equal to Fifty Million Dollars ($50,000,000) (the
"
Regulatory Termination Fee
").
(c) In
no event shall more than one Termination Fee or Regulatory Termination Fee be payable.
(d) Each
Party acknowledges that the agreements contained in this
Section 11.04
are an integral part of this
Agreement, and that, without these agreements, Parent, Merger Subsidiary and the Company would not enter into this Agreement; accordingly, if the Company or Parent fails to promptly pay any applicable
amount when due pursuant to this
Section 11.04
, and, in order to obtain such payment, Parent, Merger Subsidiary or the Company, as applicable,
commences a suit that results in a judgment against the Company or Parent, as applicable, for the fee set forth in this
Section 11.04
or any
portion of such fee, then (i) in the case of the Termination Fee, the Company shall pay to Parent and (ii) in the case of the Regulatory Termination Fee, Parent shall pay to the Company,
its reasonable costs and expenses (including reasonable attorneys' fees and expenses) in connection with such suit, together with interest on the amount of the fee at the prime rate published in
The Wall Street
Journal
on the date such payment was required to be made through the date of payment. Except as set forth in
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the
preceding sentence or in the case of fraud, Parent and Merger Subsidiary agree that, upon any termination of this Agreement under circumstances where the Termination Fee is payable by the Company
pursuant to this Section and such Termination Fee is paid in full, Parent and Merger Subsidiary shall be precluded from any other remedy against the Company, at law or in equity or otherwise, and
neither Parent nor Merger Subsidiary shall seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company or any of the
Company's Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, stockholders or Affiliates or their respective Representatives in connection with this
Agreement or the transactions contemplated hereby. Except as set forth in the first sentence or in the case of fraud, the Company agrees that, upon any termination of this Agreement under
circumstances where the Regulatory Termination Fee is payable by Parent pursuant to this Section and such Regulatory Termination Fee is paid in full, the Company shall be precluded from any other
remedy against Parent or Merger Subsidiary, at law or in equity or otherwise, and the Company shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential,
indirect, or punitive damages, against Parent, Merger Subsidiary or any of their Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, stockholders or
Affiliates or their respective Representatives in connection with this Agreement or the transactions contemplated hereby.
Section 11.05.
Disclosure Letter and SEC Document References.
The Parties agree that any
reference in a particular Section of either the Company Disclosure Letter or the Parent Disclosure Letter shall be deemed to be an
exception to (or, as applicable, a disclosure for purposes of) (a) the representations and warranties (or covenants, as applicable) of the relevant Party that are contained in the corresponding
Section of this Agreement and (b) any other representations and warranties of such Party that are contained in this Agreement to the extent that such disclosure is set forth with such
specificity that it is reasonably apparent on the face of such disclosure that such disclosure is applicable to such Sections. The mere inclusion of an item in either the Company Disclosure Letter or
the Parent Disclosure Letter as an exception to a representation or warranty shall not be deemed an admission that such item represents a material exception or material fact, event or circumstance or
that such item has had or would reasonably be expected to have a Company Material Adverse Effect or a Parent Material Adverse Effect, as applicable.
Section 11.06.
Binding Effect; Benefit; Assignment.
(a) The
provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns, and no provision of
this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns, other
than: (i) with respect to the provisions of
Section 7.04
which shall inure to the benefit of the persons or entities benefiting therefrom
who are intended to be third-party beneficiaries thereof, (ii) at and after the Effective Time, the rights of the former holders of shares of Company Stock to receive the Merger Consideration
in accordance with the terms and conditions of this Agreement, (iii) at and after the Effective Time, the rights of the holders of Company Stock Options, Company Restricted Shares, Company
Performance Shares and Company Restricted Stock Units to receive the payments contemplated by the applicable provisions of
Section 2.06
, in each
case, at the Effective Time in accordance with the terms and conditions of this Agreement;
provided
,
however
, that (A) Parent may, without the consent
of the Company, assign or otherwise transfer its rights, interests and obligations hereunder to
any of its Financing Sources for purposes of creating a security interest herein or otherwise assigning as collateral in respect of the Financing and any refinancings, extensions, refundings or
renewals thereof;
provided
that such assignment or transfer shall not in any way affect Parent's obligations and liabilities under this Agreement and
(B) each Financing Source is an express third party beneficiary of
Section 11.03
,
Section 11.06
,
Section 11.07
,
Section 11.08
,
Section 11.09
or
Section 11.15
. The representations and
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warranties
in this Agreement are the product of negotiations among the Parties and are for the sole benefit of the Parties.
(b) No
Party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other Parties.
Section 11.07.
Governing Law.
This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the conflicts of law rules of such
state;
provided
that all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) against any of the Financing Sources
in any way relating to the Debt Commitment Letter or the performance thereof or the financings contemplated thereby, shall be exclusively governed by, and construed in accordance with, the law of the
State of New York (without regard to the conflicts of law provisions thereof);
provided
,
however
, that
(a) the interpretation of the definition of Company Material Adverse Effect and whether there shall have occurred a Company Material Adverse Effect, (b) whether the Merger has been
consummated as contemplated by this Agreement, and (c) the determination of whether the representations made by the Company are accurate and whether as a result of any inaccuracy of any such
representations Parent has the right to terminate its obligations, or has the right not to consummate the Merger, under this Agreement, shall be governed by, and construed in accordance with, the
domestic laws of the State of Delaware without regard to the principles of conflicts of law.
Section 11.08.
Jurisdiction.
(a) The
Parties agree that any Proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement (including any
matter involving any Financing Source) or the transactions contemplated hereby (whether brought by any Party or any of its Affiliates or against any Party or any of its Affiliates) shall be brought
exclusively in the Court of Chancery of the State of Delaware or, if such court shall not have jurisdiction, exclusively in any federal court located in the State of Delaware or other Delaware state
court, and each of the Parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such Proceeding and irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such Proceeding in any such court or that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient forum;
provided
that, notwithstanding the foregoing, the Parties agree that in connection with any
suit, action or other Proceeding to which the Financing Sources are a party shall be subject to the exclusive jurisdiction of the United States District Court for the Southern District of New York
located in the Borough of Manhattan or, if such court shall not have jurisdiction, in the state courts of the State of New York located in New York County, and each of the Parties hereby irrevocably
consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such Proceeding and irrevocably waives to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such Proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. Process in any such Proceeding may be served on any Party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each
Party agrees that service of process on such Party as provided in
Section 11.01
shall be deemed effective service of process on such Party.
(b) EACH
OF PARENT, MERGER SUBSIDIARY AND THE COMPANY HEREBY IRREVOCABLY DESIGNATES THE CORPORATION TRUST COMPANY (IN SUCH CAPACITY, THE "
PROCESS
AGENT
"), WITH AN OFFICE AT 1209 ORANGE STREET, CITY OF WILMINGTON, COUNTY OF NEW CASTLE, DELAWARE 19801 AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, FOR AND ON ITS BEHALF
SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY PROCEEDING WITH RESPECT TO THIS AGREEMENT
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OR
ANY OTHER AGREEMENT EXECUTED IN CONNECTION WITH THIS AGREEMENT, AND SUCH SERVICE SHALL BE DEEMED COMPLETE UPON DELIVERY THEREOF TO THE PROCESS AGENT;
PROVIDED
THAT IN THE CASE OF ANY SUCH SERVICE UPON
THE PROCESS AGENT, THE PARTY EFFECTING SUCH SERVICE SHALL ALSO DELIVER A COPY THEREOF TO EACH OTHER
SUCH PARTY IN THE MANNER PROVIDED IN
SECTION 11.01
OF THIS AGREEMENT. EACH PARTY SHALL TAKE ALL SUCH ACTION AS MAY BE NECESSARY TO CONTINUE SAID
APPOINTMENT IN FULL FORCE AND EFFECT OR TO APPOINT ANOTHER AGENT SO THAT SUCH PARTY WILL AT ALL TIMES HAVE AN AGENT FOR SERVICE OF PROCESS FOR THE ABOVE PURPOSES IN WILMINGTON, DELAWARE. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY MANNER PERMITTED BY APPLICABLE LAW.
Section 11.09.
WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE DEBT
COMMITMENT LETTER OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (INCLUDING WITH RESPECT TO ANY PROCEEDING THAT INVOLVES ANY FINANCING SOURCES).
Section 11.10.
WAIVERS IRREVOCABLE.
EACH PARTY EXPRESSLY ACKNOWLEDGES THAT THE WAIVERS IN
SECTION 11.08(a)
AND
SECTION 11.09
ARE INTENDED TO BE IRREVOCABLE UNDER THE LAWS OF THE STATE OF DELAWARE AND OF THE UNITED STATES OF AMERICA.
Section 11.11.
Counterparts; Effectiveness.
This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when each Party shall have received a counterpart hereof signed by all of the other Parties. Until and unless each Party has received a
counterpart hereof signed by all of the other Parties, this Agreement shall have no effect and no Party shall have any right or obligation hereunder (whether by virtue of any other oral or written
agreement or other communication). The exchange of a fully executed Agreement by electronic transmission in .PDF format or by facsimile shall be sufficient to bind the Parties to the terms and
conditions of this Agreement.
Section 11.12.
Entire Agreement.
This Agreement and the Confidentiality Agreement constitute the
entire agreement among the Parties with respect to the subject matter of this Agreement and
supersede all prior agreements and understandings, both oral and written, among the Parties with respect to the subject matter of this Agreement.
Section 11.13.
Severability.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other Governmental Authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such a determination, the Parties shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated
as originally contemplated to the fullest extent possible.
Section 11.14.
Specific Performance.
Notwithstanding anything in this Agreement to the contrary,
the Parties agree that irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof (and, more specifically, that irreparable damage would occur if the Merger were not consummated and the Company's stockholders and holders of Company
Stock Options, Company Restricted Shares, Company Performance Shares and Company Restricted Stock Units did not receive the aggregate Merger Consideration in accordance with the terms but
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subject
to the conditions of this Agreement) and that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of
the terms and provisions hereof (including the Parties' obligation to consummate the Merger and Parent's obligation to pay, and the Company's stockholders' and holders of Company Stock Options',
Company Restricted Shares', Company Performance Shares' and Company Restricted Stock Units' right to receive, the aggregate Merger Consideration pursuant to the Merger, subject in each case to the
terms and conditions of this Agreement) in any federal court located in the State of Delaware or any Delaware state court, in addition to any other remedy to which they are entitled at law or in
equity, and the Parties further waive any requirement for the securing or posting of any bond or proof of actual damages in connection with any such remedy. If, prior to the End Date, any Party brings
an action to enforce specifically the performance of the terms and provisions of this Agreement by another Party, the End Date shall automatically be extended by (a) the amount of time during
which such action is pending, plus twenty Business Days, or (b) such other time period established by the court presiding over such action.
Section 11.15.
Non-Recourse.
Notwithstanding anything to the contrary herein, the Company agrees
on behalf of itself and its Affiliates that none of the Financing Sources shall have any
liability or obligation to the Company or any of its Affiliates relating to this Agreement or the Debt Commitment Letter or any of the transactions contemplated herein or therein (including the
Financing). This
Section 11.15
is intended to benefit and may be enforced by the Financing Sources and shall be binding on all successors and
assigns of the Company.
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page is the signature page.]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their respective authorized officers as of the date set forth on the cover page
of this Agreement.
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CARMIKE CINEMAS, INC.
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By:
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/s/ S. DAVID PASSMAN III
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Name:
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S. David Passman III
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Title:
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President and Chief Executive Officer
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[Signature
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IN
WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their respective authorized officers as of the date set forth on the cover page of this Agreement
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AMC ENTERTAINMENT HOLDINGS, INC.
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By:
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/s/ ADAM M. ARON
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Name:
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Adam M. Aron
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Title:
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Chief Executive Officer and President
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CONGRESS MERGER SUBSIDIARY, INC.
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By:
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/s/ ADAM M. ARON
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Name:
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Adam M. Aron
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Title:
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Chief Executive Officer and President
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[Signature
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Exhibit A
Surviving Corporation Certificate of Incorporation
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EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CARMIKE CINEMAS, INC.
[
·
]
[
·
], 2016
Carmike Cinemas, Inc., a corporation organized and existing under the laws of the State of Delaware (the
"
Corporation
"), certifies that:
1. The
name under which the Corporation was originally incorporated was "Martin Cinemas, Inc." and its original Certificate of Incorporation was filed with the
Secretary of State of Delaware on April 2, 1982. The Certificate of Incorporation was last restated on January 31, 2002.
2. This
Amended and Restated Certificate of Incorporation was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of
Delaware, and restates, integrates, and further amends the provisions of the Corporation's Certificate of Incorporation.
3. The
text of the Certificate of Incorporation is amended and restated to read in its entirety as follows:
ARTICLE I
The name of Corporation is Carmike Cinemas, Inc.
ARTICLE II
The address of its registered office in the State of Delaware is 3411 Silverside Rd. #104 Rodney Building, in the city of Wilmington,
county of New Castle. The name of its registered agent at such address is Corporate Creations Network, Inc.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General
Corporation Law of the Stale of Delaware.
ARTICLE IV
The total number of shares that the Corporation shall have the authority to issue is 10,000 shares of common stock, $0.01 par value per
share.
ARTICLE V
The Board of Directors is authorized to adopt, amend, or repeal the Bylaws of the Corporation, but the stockholders may adopt
additional Bylaws and may amend or repeal any Bylaws whether adopted by them or otherwise.
ARTICLE VI
The Corporation is to have perpetual existence.
ARTICLE VII
The number of directors of the Corporation shall be fixed by, or in the manner provided in, the Bylaws of the Corporation.
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ARTICLE VIII
The Corporation reserves the right to amend, alter, change, or repeal any provision contained in this Certificate of Incorporation, in
the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
ARTICLE IX
The Corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of the State of Delaware,
as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said Section from and against any and all of the expenses, liabilities or other
matters referred to in or covered by said Section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any
By-Law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
ARTICLE X
A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Delaware as the same exists or
may hereafter be amended. Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a director of the Corporation existing hereunder with respect to
any act or omission occurring prior to such repeal or modification.
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IN WITNESS WHEREOF,
the Corporation has caused this Amended and Restated Certificate of Incorporation to be
executed by the undersigned, a duly authorized officer of the Corporation, as of the date first set forth above.
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Exhibit B
Surviving Corporation Bylaws
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EXHIBIT B
AMENDED AND RESTATED
BY-LAWS
OF
CARMIKE CINEMAS, INC.
ARTICLE 1
OFFICES
The registered office of Carmike Cinemas, Inc. (the "Corporation") shall be in the City of Wilmington, County of New Castle,
State of Delaware. The Corporation may also have offices at such other places both within and without the State of Delaware.
ARTICLE 2
STOCKHOLDERS
Section 2.1
Time and Place of Meetings
.
All meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and places, either within or without the State of Delaware, as shall be
designated by the board of directors of the Corporation (the "Board of Directors"). In the absence of any such designation by the Board of Directors, each such meeting shall be held at the principal
office of the Corporation.
Section 2.2
Annual Meetings
.
An annual meeting of stockholders shall be held for the purpose of electing members of the Board of Directors of the Corporation (the "Directors") and transacting such other business as
may properly be brought before the meeting. The date of the annual meeting shall be determined by the Board of Directors.
Section 2.3
Special Meetings
.
Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by law, may be called by the President and shall be called by the Secretary at the
direction of a majority of the Board of Directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the Corporation issued and outstanding and
entitled to vote.
Section 2.4
Notice of Meetings
.
Written notice of each meeting of the stockholders stating the place, date and time of the meeting shall be given not less than ten nor more than sixty days before the date of the
meeting, to each stockholder entitled to vote at such meeting The notice of any special meeting of stockholders shall state the purpose or purposes for which the meeting is called.
Section 2.5
Quorum
.
The holders of a majority of the stock issued and outstanding and entitled to vote at a meeting, present in person or represented by proxy, shall constitute a quorum at any meetings of
the stockholders for the transaction of business, except as otherwise provided by law. If a quorum is not present or represented, the holders of the stock present in person or represented by proxy at
the meeting and entitled to vote thereat shall have power, by the affirmative vote of the holders of a majority of such stock, to adjourn the meeting to another time or place, without notice other
than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which
might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 2.6
Voting
.
At all meetings of the stockholders, each stockholder shall be entitled to vote, in person or by proxy, the shares of voting stock owned by such stockholder of record on the record date
for the meeting. When a quorum is present or represented at any meeting, the vote of the
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holders
of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which, by
express provision of law or of the certificate of incorporation, a different vote is required, in which case such express provision shall govern and control the decision of such question.
Section 2.7
Informal Action By Stockholders
.
Any action required to be taken at a meeting of the stockholders, or any other action which may be taken at a meeting of the stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who have not consented in writing.
ARTICLE 3
DIRECTORS
Section 3.1
General Powers
.
The business and affairs of the Corporation shall be managed and controlled by or under the direction of a Board of Directors, which may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by law or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders.
Section 3.2
Number, Qualification and Tenure
.
The Board of Directors shall consist of not less than one (1) and not more than nine (9) members. Within the limits above specified, the number of Directors shall be
determined from time to time by resolution of the Board of Directors. The Directors shall be elected at the annual meeting of the stockholders, except as provided in Section 3.3 of these
By-Laws, and each Director elected shall hold office until his successor is elected and qualified or until his earlier death, resignation or removal. Directors need not be stockholders.
Section 3.3
Vacancies
.
Vacancies and newly created directorships resulting from any increase in the number of directors may be filled by a majority of the Directors then in office though less than a quorum,
and each Director so chosen shall hold office until his successor is elected and qualified or until his earlier death, resignation or removal. If there are no Directors in office, then an election of
Directors may be held in the manner provided by law.
Section 3.4
Place of Meetings
.
The Board of Directors may hold meetings, both regular and special, either within or without the State of Delaware.
Section 3.5
Regular Meetings
.
The Board of Directors shall hold a regular meeting, to be known as the annual meeting, immediately following each annual meeting of the stockholders. Other regular meetings of the Board
of Directors shall be held at such time and at such place as shall from time to time be determined by the Board of Directors. No notice of regular meetings need be given.
Section 3.6
Special Meetings.
Special
meetings of the Board of Directors may be called by the President. Special meetings shall be called by the Secretary on the written request of any Director.
Section 3.7
Quorum
.
At all meetings of the Board of Directors a majority of the total number of Directors shall constitute a quorum for the transaction of business and the act of a majority of the Directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by law. If a quorum shall not be present at any meeting
of the Board of Directors, the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 3.8
Organization
.
The Chairman of the Board, if elected, shall act as chairman at all meetings of the Board of Directors. If a Chairman of the Board is not elected or, if elected, is not
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present,
the President (if a member of the Board of Directors) or, in the absence of the President or, if the President is not a member of the Board of Directors, a Vice-Chairman (who is also a member
of the Board of Directors and, if more than one, in the order designated by the Board of Directors or, in the absence of such designation, in the order of their election), if any, or if no such
Vice-Chairman is present, a Director chosen by a majority of the Directors present, shall act as chairman at meetings of the Board of Directors.
Section 3.9
Executive Committee
.
(a) The Board of Directors, by resolution adopted by a majority of the whole Board of Directors, may designate one or more Directors to constitute an Executive Committee, to serve
as such, unless the resolution designating the Executive Committee is sooner amended or rescinded by the Board of Directors, until the next annual meeting of the Board of Directors or until their
respective successors are designated. The Board of Directors, by resolution adopted by a majority of the whole Board of Directors, may also designate additional Directors as alternate members of the
Executive Committee to serve as members of the Executive Committee in the place and stead of any regular member or members thereof who may be unable to attend a meeting or otherwise unavailable to act
as a member of the Executive Committee. In the absence or disqualification of a member and all alternate members who may serve in the place and stead of such member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another Director to act at the meeting in the place of any
such absent or disqualified member.
(b) Except
as expressly limited by the General Corporation Law of the State of Delaware or the Certificate of Incorporation, the Executive Committee shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation between the meetings of the Board of Directors. The Executive Committee
shall keep a record of its acts and proceedings, which shall form a part of the records of the Corporation in the custody of the Secretary, and all actions of the Executive Committee shall be
reported to the Board of Directors at the next meeting of the Board of Directors.
(c) Meetings
of the Executive Committee may be called at any time by the Chairman of the Board, the President or any two of its members. No notice of meetings need be given.
A majority of the members of the Executive Committee shall constitute a quorum for the transaction of business and, except as expressly limited by this section, the act of a majority of the members
present at any meeting at which there is a quorum shall be the act of the Executive Committee. Except as expressly provided in this Section 3.9(c), the Executive Committee shall fix its own
rules of procedure.
Section 3.10
Other Committees
.
The Board of Directors, by resolution adopted by a majority of the whole Board of Directors, may designate one or more other committees, each such committee to consist of one or more
Directors. Except as expressly limited by the General Corporation Law of the State of Delaware or the Certificate of Incorporation, any such committee shall have and may exercise such powers as the
Board of Directors may determine and specify in the resolution designating such committee. The Board of Directors, by resolution adopted by a majority of the whole Board of Directors, also may
designate one or more additional Directors as alternate members of any such committee to replace any absent or disqualified member at any meeting of the committee, and at any time may change the
membership of any committee or amend or rescind the resolution designating the committee. In the absence or disqualification of a member or alternate member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another Director to act at the meeting in the place
of any such absent or disqualified member, provided that the Director so appointed meets any qualifications stated in the resolution designating the committee. Each committee shall keep a record of
proceedings and report the same to the Board of Directors to such extent and in such form as the Board of Directors may require. Unless otherwise provided in the resolution designating a committee, a
majority of all of the members of any such committee may select its
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Chairman,
fix its rules of procedure, fix the time and place of its meetings and specify what notice of meetings, if any, shall be given.
Section 3.11
Action without Meeting
.
Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or committee.
Section 3.12
Attendance by Telephone
.
Members of the Board of Directors, or of any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of
conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence
in person at the meeting.