-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EPqHhfzIUk9N2n9GJtF2zMvaccikwFW81ZPU+FxBQL+6YrnP4jqMvWTltOxIK77Q 5+uVZmoz3e3HR7VRFoLB2w== 0000895345-04-000566.txt : 20040805 0000895345-04-000566.hdr.sgml : 20040805 20040805160737 ACCESSION NUMBER: 0000895345-04-000566 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 13 FILED AS OF DATE: 20040805 GROUP MEMBERS: BRIDGE STREET FUND 1998, L.P. GROUP MEMBERS: GOLDMAN, SACHS & CO. GROUP MEMBERS: GOLDMAN, SACHS & CO. OHG GROUP MEMBERS: GS ADVISORS III, L.L.C. GROUP MEMBERS: GS CAPITAL PARTNERS III GERMANY CIVIL LAW PARTNERSHIP GROUP MEMBERS: GS CAPITAL PARTNERS III OFFSHORE, L.P. GROUP MEMBERS: GS CAPITAL PARTNERS III, L.P. GROUP MEMBERS: STONE STREET 1998, L.L.C. GROUP MEMBERS: STONE STREET FUND 1998, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CARMIKE CINEMAS INC CENTRAL INDEX KEY: 0000799088 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MOTION PICTURE THEATERS [7830] IRS NUMBER: 581469127 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-37737 FILM NUMBER: 04954880 BUSINESS ADDRESS: STREET 1: 1301 FIRST AVE CITY: COLUMBUS STATE: GA ZIP: 31901 BUSINESS PHONE: 7065763400 MAIL ADDRESS: STREET 1: P O BOX 391 CITY: COLUMBUS STATE: GA ZIP: 31994 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC/ CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 134019460 STATE OF INCORPORATION: DE FISCAL YEAR END: 1128 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 SC 13D/A 1 rs13da-carmike.txt SCHEDULE 13D (AMENDMENT #4) UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 4) CARMIKE CINEMAS, INC. - ------------------------------------------------------------------------------ (Name of Issuer) COMMON STOCK, PAR VALUE $.03 PER SHARE - ------------------------------------------------------------------------------ (Title of Class of Securities) 143436400 -------------------------------------------- (CUSIP Number) BEN I. ADLER, ESQ. GOLDMAN, SACHS & CO. 85 BROAD STREET NEW YORK, NY 10004 (212) 902-1000 -------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) AUGUST 3, 2004 -------------------------------------------- (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box: [ ] *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act, but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D - ------------------------------ ------------------------- CUSIP NO. 143436400 Page 2 of 25 Pages - ------------------------------ ------------------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GOLDMAN, SACHS & CO. - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS AF - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [x] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE ORGANIZATION NEW YORK - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF ------------------------------------------------------------- 8 SHARED VOTING POWER SHARES 351,593 BENEFICIALLY ------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER OWNED BY 0 EACH ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER REPORTING 351,593 PERSON WITH - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 351,593* - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.9%** - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON BD-PN-IA - ------------------------------------------------------------------------------ * If the underwriters party to the underwriting agreement, dated August 3, 2004 (the "August 2004 Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the August 2004 Underwriting Agreement (the "August 2004 Over-Allotment Option") in full then this amount will decrease by 351,249 shares to 344 shares. The August 2004 Over-Allotment Option is exercisable within 30 days after the date of the August 2004 Underwriting Agreement. ** If the underwriters party to the August 2004 Underwriting Agreement exercise the August 2004 Over-Allotment Option in full then this percentage will be less than 0.1%. SCHEDULE 13D - ------------------------------ ------------------------- CUSIP NO. 143436400 Page 3 of 25 Pages - ------------------------------ ------------------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON THE GOLDMAN SACHS GROUP, INC. - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS AF - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE ORGANIZATION DELAWARE - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF ------------------------------------------------------------- 8 SHARED VOTING POWER SHARES 351,593 BENEFICIALLY ------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER OWNED BY 0 EACH ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER REPORTING 351,593 PERSON WITH - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 351,593* - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.9%** - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON HC-CO - ------------------------------------------------------------------------------ * If the underwriters party to the underwriting agreement, dated August 3, 2004 (the "August 2004 Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the August 2004 Underwriting Agreement (the "August 2004 Over-Allotment Option") in full then this amount will decrease by 351,249 shares to 344 shares. The August 2004 Over-Allotment Option is exercisable within 30 days after the date of the August 2004 Underwriting Agreement. ** If the underwriters party to the August 2004 Underwriting Agreement exercise the August 2004 Over-Allotment Option in full then this percentage will be less than 0.1%. SCHEDULE 13D - ------------------------------ ------------------------- CUSIP NO. 143436400 Page 4 of 25 Pages - ------------------------------ ------------------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GS CAPITAL PARTNERS III, L.P. - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS WC - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE ORGANIZATION DELAWARE - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF ------------------------------------------------------------- 8 SHARED VOTING POWER SHARES 242,250 BENEFICIALLY ------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER OWNED BY 0 EACH ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER REPORTING 242,250 PERSON WITH - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 242,250* - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.0%** - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON PN - ------------------------------------------------------------------------------ * If the underwriters party to the underwriting agreement, dated August 3, 2004 (the "August 2004 Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the August 2004 Underwriting Agreement (the "August 2004 Over-Allotment Option") in full then this amount will decrease by 242,250 shares to 0 shares. The August 2004 Over-Allotment Option is exercisable within 30 days after the date of the August 2004 Underwriting Agreement. ** If the underwriters party to the August 2004 Underwriting Agreement exercise the August 2004 Over-Allotment Option in full then this percentage will equal 0.0%. SCHEDULE 13D - ------------------------------ ------------------------- CUSIP NO. 143436400 Page 5 of 25 Pages - ------------------------------ ------------------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GS CAPITAL PARTNERS III OFFSHORE, L.P. - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS WC - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE ORGANIZATION CAYMAN ISLANDS - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF ------------------------------------------------------------- 8 SHARED VOTING POWER SHARES 59,432 BENEFICIALLY ------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER OWNED BY 0 EACH ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER REPORTING 59,432 PERSON WITH - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 59,432* - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.5%** - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON PN - ------------------------------------------------------------------------------ * If the underwriters party to the underwriting agreement, dated August 3, 2004 (the "August 2004 Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the August 2004 Underwriting Agreement (the "August 2004 Over-Allotment Option") in full then this amount will decrease by 59,432 shares to 0 shares. The August 2004 Over-Allotment Option is exercisable within 30 days after the date of the August 2004 Underwriting Agreement. ** If the underwriters party to the August 2004 Underwriting Agreement exercise the August 2004 Over-Allotment Option in full then this percentage will equal 0.0%. SCHEDULE 13D - ------------------------------ ------------------------- CUSIP NO. 143436400 Page 6 of 25 Pages - ------------------------------ ------------------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GS ADVISORS III, L.L.C. - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS AF - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE ORGANIZATION DELAWARE - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF ------------------------------------------------------------- 8 SHARED VOTING POWER SHARES 301,682 BENEFICIALLY ------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER OWNED BY 0 EACH ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER REPORTING 301,682 PERSON WITH - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 301,682* - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.5%** - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON OO - ------------------------------------------------------------------------------ * If the underwriters party to the underwriting agreement, dated August 3, 2004 (the "August 2004 Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the August 2004 Underwriting Agreement (the "August 2004 Over-Allotment Option") in full then this amount will decrease by 301,682 shares to 0 shares. The August 2004 Over-Allotment Option is exercisable within 30 days after the date of the August 2004 Underwriting Agreement. ** If the underwriters party to the August 2004 Underwriting Agreement exercise the August 2004 Over-Allotment Option in full then this percentage will equal 0.0%. SCHEDULE 13D - ------------------------------ ------------------------- CUSIP NO. 143436400 Page 7 of 25 Pages - ------------------------------ ------------------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GS CAPITAL PARTNERS III GERMANY CIVIL LAW PARTNERSHIP (with limitation of liability) - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS WC - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE ORGANIZATION GERMANY - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF ------------------------------------------------------------- 8 SHARED VOTING POWER SHARES 14,443 BENEFICIALLY ------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER OWNED BY 0 EACH ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER REPORTING 14,443 PERSON WITH - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 14,443* - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1%** - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON PN - ------------------------------------------------------------------------------ * If the underwriters party to the underwriting agreement, dated August 3, 2004 (the "August 2004 Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the August 2004 Underwriting Agreement (the "August 2004 Over-Allotment Option") in full then this amount will decrease by 14,443 shares to 0 shares. The August 2004 Over-Allotment Option is exercisable within 30 days after the date of the August 2004 Underwriting Agreement. ** If the underwriters party to the August 2004 Underwriting Agreement exercise the August 2004 Over-Allotment Option in full then this percentage will equal 0.0%. SCHEDULE 13D - ------------------------------ ------------------------- CUSIP NO. 143436400 Page 8 of 25 Pages - ------------------------------ ------------------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GOLDMAN, SACHS & CO. OHG - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS AF - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE ORGANIZATION GERMANY - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF ------------------------------------------------------------- 8 SHARED VOTING POWER SHARES 14,443 BENEFICIALLY ------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER OWNED BY 0 EACH ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER REPORTING 14,443 PERSON WITH - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 14,443* - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1%** - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON PN - ------------------------------------------------------------------------------ * If the underwriters party to the underwriting agreement, dated August 3, 2004 (the "August 2004 Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the August 2004 Underwriting Agreement (the "August 2004 Over-Allotment Option") in full then this amount will decrease by 14,443 shares to 0 shares. The August 2004 Over-Allotment Option is exercisable within 30 days after the date of the August 2004 Underwriting Agreement. ** If the underwriters party to the August 2004 Underwriting Agreement exercise the August 2004 Over-Allotment Option in full then this percentage will equal 0.0%. SCHEDULE 13D - ------------------------------ ------------------------- CUSIP NO. 143436400 Page 9 of 25 Pages - ------------------------------ ------------------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON BRIDGE STREET FUND 1998, L.P. - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS WC - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE ORGANIZATION DELAWARE - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF ------------------------------------------------------------- 8 SHARED VOTING POWER SHARES 15,597 BENEFICIALLY ------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER OWNED BY 0 EACH ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER REPORTING 15,597 PERSON WITH - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,597* - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1%** - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON PN - ------------------------------------------------------------------------------ * If the underwriters party to the underwriting agreement, dated August 3, 2004 (the "August 2004 Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the August 2004 Underwriting Agreement (the "August 2004 Over-Allotment Option") in full then this amount will decrease by 15,597 shares to 0 shares. The August 2004 Over-Allotment Option is exercisable within 30 days after the date of the August 2004 Underwriting Agreement. ** If the underwriters party to the August 2004 Underwriting Agreement exercise the August 2004 Over-Allotment Option in full then this percentage will equal 0.0%. SCHEDULE 13D - ------------------------------ ------------------------- CUSIP NO. 143436400 Page 10 of 25 Pages - ------------------------------ ------------------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON STONE STREET FUND 1998, L.P. - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS WC - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE ORGANIZATION DELAWARE - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF ------------------------------------------------------------- 8 SHARED VOTING POWER SHARES 19,527 BENEFICIALLY ------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER OWNED BY 0 EACH ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER REPORTING 19,527 PERSON WITH - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 19,527* - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.2%** - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON PN - ------------------------------------------------------------------------------ * If the underwriters party to the underwriting agreement, dated August 3, 2004 (the "August 2004 Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the August 2004 Underwriting Agreement (the "August 2004 Over-Allotment Option") in full then this amount will decrease by 19,527 shares to 0 shares. The August 2004 Over-Allotment Option is exercisable within 30 days after the date of the August 2004 Underwriting Agreement. ** If the underwriters party to the August 2004 Underwriting Agreement exercise the August 2004 Over-Allotment Option in full then this percentage will equal 0.0%. SCHEDULE 13D - ------------------------------ ------------------------- CUSIP NO. 143436400 Page 11 of 25 Pages - ------------------------------ ------------------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON STONE STREET 1998, L.L.C. - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS AF - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE ORGANIZATION DELAWARE - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF ------------------------------------------------------------- 8 SHARED VOTING POWER SHARES 35,124 BENEFICIALLY ------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER OWNED BY 0 EACH ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER REPORTING 35,124 PERSON WITH - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 35,124* - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.3%** - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON OO - ------------------------------------------------------------------------------ * If the underwriters party to the underwriting agreement, dated August 3, 2004 (the "August 2004 Underwriting Agreement"), entered into with Carmike Cinemas, Inc. (the "Company") and the selling stockholders party thereto, relating to the Company's public offering of shares of its Class A Common Stock, exercise the over-allotment option granted pursuant to the August 2004 Underwriting Agreement (the "August 2004 Over-Allotment Option") in full then this amount will decrease by 35,124 shares to 0 shares. The August 2004 Over-Allotment Option is exercisable within 30 days after the date of the August 2004 Underwriting Agreement. ** If the underwriters party to the August 2004 Underwriting Agreement exercise the August 2004 Over-Allotment Option in full then this percentage will equal 0.0%. This Amendment No. 4, filed by GS Capital Partners III, L.P. ("GS Capital III"), GS Capital Partners III Offshore, L.P. ("GS Offshore"), GS Capital Partners III Germany Civil Law Partnership ("GS Germany"), Stone Street Fund 1998, L.P. ("Stone 1998"), Bridge Street Fund 1998, L.P. ("Bridge 1998" and, together with GS Capital III, GS Offshore, GS Germany and Stone 1998, the "Limited Partnerships"), GS Advisors III, L.L.C. ("GS Advisors"), Goldman, Sachs & Co. oHG ("GS oHG"), Stone Street 1998, L.L.C. ("Stone L.L.C."), Goldman, Sachs & Co. ("Goldman Sachs") and The Goldman Sachs Group, Inc. ("GS Group" and, together with Goldman Sachs, Stone L.L.C., GS oHG, GS Advisors and the Limited Partnerships, the "Filing Persons")1, amends and supplements the Schedule 13D filed by the Filing Persons with the Securities and Exchange Commission (the "SEC") on October 8, 1999 (as amended by Amendment No. 1 filed on February 8, 2002, Amendment No. 2 filed on February 2, 2004 and Amendment No. 3 filed on February 12, 2004, the "Schedule 13D") relating to the Class A common stock, par value $.03 per share (the "Class A Common Stock"), of Carmike Cinemas, Inc., a Delaware corporation (the "Company"). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Schedule 13D. - ------------------------ (1) Nether the present filing nor anything contained herein shall be construed as an admission that any Filing Person constitutes a "person" for any purpose other than for compliance with Section 13(d) of the Securities Exchange Act of 1934. ITEM 2. IDENTITY AND BACKGROUND. Item 2 is hereby amended by amending Schedules I, II-A-i, II-A-ii, II-C-i and III hereto to read in their entirety as attached hereto. ITEM 4. PURPOSE OF TRANSACTION. Item 4 is hereby amended by adding the following at the end thereof: On August 3, 2004, the Limited Partnerships entered into an Underwriting Agreement (the "August 2004 Underwriting Agreement") with the Company, the other selling stockholders listed in Schedule II to the August 2004 Underwriting Agreement (together with the Limited Partnerships, the "August 2004 Selling Stockholders") and Goldman Sachs, as representative of the several underwriters listed in Schedule I to the August 2004 Underwriting Agreement (Goldman Sachs and such other underwriters, collectively, the "August 2004 Underwriters"). The August 2004 Underwriting Agreement provides for purchases by the August 2004 Underwriters from the August 2004 Selling Stockholders of 4,332,415 shares of Class A Common Stock (collectively, the "August 2004 Initial Sale"). Of the 4,332,415 shares of Class A Common Stock to be sold by the August 2004 Selling Stockholders in the August 2004 Initial Sale, the Limited Partnerships have agreed to sell, in the aggregate, 2,341,663 shares. In addition, pursuant to the August 2004 Underwriting Agreement, the August 2004 Selling Stockholders granted the August 2004 Underwriters an option, exercisable within 30 days after the date of the August 2004 Underwriting Agreement, to purchase an additional 649,836 shares of Class A Common Stock at the same purchase price per share for the purpose of covering over-allotments (the "August 2004 Over-Allotment Option"). Of the 649,836 shares of Class A Common Stock to be sold by the August 2004 Selling Stockholders upon the exercise in full by the August 2004 Underwriters of the August 2004 Over-Allotment Option, the Limited Partnerships have agreed to sell, in the aggregate, 351,249 shares. Pursuant to the final prospectus (the "August 2004 Offering Prospectus") filed by the Company on August 4, 2004 (the "August 2004 Offering Prospectus Date") pursuant to Rule 424 of the Securities Act, the public offering price in the public offering of Class A Common Stock by the Company is $33.00 per share and the underwriting discount is $1.485 per share. Pursuant to the August 2004 Underwriting Agreement, the August 2004 Underwriters agreed to purchase shares of Class A Common Stock in the August 2004 Initial Sale and upon exercise of the August 2004 Over-Allotment Option at a price per share of $31.515 (which is net of underwriting discounts and commissions). The August 2004 Underwriting Agreement contains standard terms and conditions for a public offering including customary representations and warranties and indemnity provisions. The foregoing description of the August 2004 Underwriting Agreement is not intended to be complete and is qualified in its entirety by the complete text of the August 2004 Underwriting Agreement, a copy of which is filed as Exhibit 99.18 hereto. Pursuant to the August 2004 Underwriting Agreement, the Limited Partnerships have agreed to sell an aggregate of 2,692,912 shares of Class A Common Stock to the August 2004 Underwriters, consisting of (i) an aggregate of 2,341,663 shares of Class A Common Stock to be sold upon consummation of the August 2004 Initial Sale and (ii) an aggregate of 351,249 shares of Class A Common Stock to be sold upon exercise in full by the August 2004 Underwriters of the August 2004 Over-Allotment Option, in each case, at a price per share of $31.515 (which is net of underwriting discounts and commissions), for an aggregate amount of $84,867,121.69 (which consists of $73,797,509.45 that will be received by the Limited Partnerships upon consummation of the August 2004 Initial Sale and $11,069,612.24 that would be received by the Limited Partnerships if the August 2004 Underwriters exercise the August 2004 Over-Allotment Option in full). The consummation of the August 2004 Initial Sale is expected to occur on August 9, 2004 (the "August 2004 Initial Sale Closing Date") as reported by the Company in the August 2004 Offering Prospectus. The Filing Persons have been advised that Richard A. Friedman and Elizabeth C. Fascitelli (two of GS Capital III's three designees on the Company's Board of Directors) intend to resign from the Company's Board of Directors, effective as of the August 2004 Initial Sale Closing Date. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Items 5(a)-(e) are hereby amended in their entirety as follows: (a) Based on information reported by the Company in the August 2004 Offering Prospectus, assuming that the August 2004 Initial Sale is consummated on August 9, 2004, there will be 12,152,622 shares of Class A Common Stock outstanding as of the close of business on August 9, 2004. As of August 9, 2004, GS Capital III may be deemed to beneficially own 242,250 shares of Class A Common Stock, representing approximately 2.0% of the shares of Class A Common Stock outstanding as of August 9, 2004, assuming consummation of the August 2004 Initial Sale on such date; provided, however, that if the August 2004 Underwriters exercise the August 2004 Over-Allotment Option in full, then GS Capital III will no longer be deemed to beneficially own any shares of Class A Common Stock. As of August 9, 2004, GS Offshore may be deemed to beneficially own 59,432 shares of Class A Common Stock, representing approximately 0.5% of the shares of Class A Common Stock outstanding as of August 9, 2004, assuming consummation of the August 2004 Initial Sale on such date; provided, however, that if the August 2004 Underwriters exercise the August 2004 Over-Allotment Option in full, then GS Offshore will no longer be deemed to beneficially own any shares of Class A Common Stock. As of August 9, 2004, GS Advisors, as the sole general partner of each of GS Capital III and GS Offshore, may be deemed to beneficially own 301,682 shares of Class A Common Stock, representing approximately 2.5% of the shares of Class A Common Stock outstanding as of August 9, 2004, assuming consummation of the August 2004 Initial Sale on such date; provided, however, that if the August 2004 Underwriters exercise the August 2004 Over-Allotment Option in full, then GS Advisors, as the sole general partner of each of GS Capital III and GS Offshore, will no longer be deemed to beneficially own any shares of Class A Common Stock. As of August 9, 2004, GS Germany may be deemed to beneficially own, and its managing partner, GS oHG, may be deemed to beneficially own, an aggregate of 14,443 shares of Class A Common Stock, representing approximately 0.1% of the shares of Class A Common Stock outstanding as of August 9, 2004, assuming consummation of the August 2004 Initial Sale on such date; provided, however, that if the August 2004 Underwriters exercise the August 2004 Over-Allotment Option in full, then GS Germany will no longer be deemed to beneficially own, and its managing partner, GS oHG, will no longer be deemed to beneficially own, any shares of Class A Common Stock. As of August 9, 2004, Bridge 1998 may be deemed to beneficially own 15,597 shares of Class A Common Stock, representing approximately 0.1% of the shares of Class A Common Stock outstanding as of August 9, 2004, assuming consummation of the August 2004 Initial Sale on such date; provided, however, that if the August 2004 Underwriters exercise the August 2004 Over-Allotment Option in full, then Bridge 1998 will no longer be deemed to beneficially own any shares of Class A Common Stock. As of August 9, 2004, Stone 1998 may be deemed to beneficially own 19,527 shares of Class A Common Stock, representing approximately 0.2% of the shares of Class A Common Stock outstanding as of August 9, 2004, assuming consummation of the August 2004 Initial Sale on such date; provided, however, that if the August 2004 Underwriters exercise the August 2004 Over-Allotment Option in full, then Stone 1998 will no longer be deemed to beneficially own any shares of Class A Common Stock. As of August 9, 2004, Stone L.L.C., as the sole general partner of Stone 1998 and the sole managing general partner of Bridge 1998, may be deemed to beneficially own 35,124 shares of Class A Common Stock, representing approximately 0.3% of the shares of Class A Common Stock outstanding as of August 9, 2004, assuming consummation of the August 2004 Initial Sale on such date; provided, however, that if the August 2004 Underwriters exercise the August 2004 Over-Allotment Option in full, then Stone L.L.C. will no longer be deemed to beneficially own any shares of Class A Common Stock. As of August 9, 2004, each of Goldman Sachs and GS Group may be deemed to beneficially own an aggregate of 351,593 shares of Class A Common Stock, consisting of (i) 351,249 shares of Class A Common Stock that may be deemed to be beneficially owned by the Limited Partnerships as described above and (ii) 344 shares of Class A Common Stock acquired by Goldman Sachs in ordinary course trading activities, representing approximately 2.9% of the shares of Class A Common Stock outstanding as of August 9, 2004, assuming consummation of the August 2004 Initial Sale on such date; provided, however, that if the August 2004 Underwriters exercise the August 2004 Over-Allotment Option in full, then each of Goldman Sachs and GS Group may be deemed to beneficially own an aggregate of 344 shares of Class A Common Stock acquired by Goldman Sachs in ordinary course trading activities, representing less than 0.1% of the shares of Class A Common Stock outstanding as of August 9, 2004. Each of Goldman Sachs and GS Group disclaims beneficial ownership of the shares of Class A Common Stock that may be deemed to be beneficially owned by the Limited Partnerships to the extent of partnership interests in the Limited Partnerships held by persons other than Goldman Sachs, GS Group or their affiliates. In accordance with SEC Release No. 34-39538 (January 12, 1998), this filing reflects the securities beneficially owned by the investment banking division of GS Group and its subsidiaries and affiliates (collectively, "IBD"). This filing does not reflect securities, if any, beneficially owned by any other operating unit of GS Group. IBD disclaims beneficial ownership of the securities beneficially owned by (i) any client accounts with respect to which IBD or its employees have voting or investment discretion, or both, and (ii) certain investment entities, of which IBD is the general partner, managing general partner or other manager, to the extent interests in such entities are held by persons other than IBD. None of the Filing Persons or, to the knowledge of any of the Filing Persons, any of the persons listed on Schedules I, II-A-i, II-A-ii, II-B, II-C-i or II-C-ii hereto, may be deemed to beneficially own any shares of Class A Common Stock as of August 9, 2004 other than as set forth herein. (b) Each Filing Person shares the power to vote or direct the vote and to dispose or to direct the disposition of shares of Class A Common Stock beneficially owned by such Filing Person as indicated in pages 2 through 11 above. (c) No transactions in the shares of Class A Common Stock were effected by any of the Filing Persons or, to the knowledge of any of the Filing Persons, any of the persons listed on Schedules I, II-A-i, II-A-ii, II-B, II-C-i or II-C-ii hereto, during the past sixty days. (d) No other person is known by any Filing Person to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of Class A Common Stock beneficially owned by any Filing Person. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Item 6 is hereby amended by adding the following at the end thereof: The responses set forth in Items 3 and 4 of this Schedule 13D are incorporated herein by reference in their entirety. Lock-Up Agreement. In connection with the August 2004 Initial Sale, the Company, its executive officers and directors and the August 2004 Selling Stockholders have agreed not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Class A Common Stock, or any options or warrants to purchase any shares of Class A Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Class A Common Stock, whether owned at the time of such agreement or acquired thereafter, owned directly by such person (including holding as a custodian) or with respect to which such person has beneficial ownership within the rules and regulations of the SEC during the period beginning from the August 2004 Offering Prospectus Date and continuing to and including the date that is 90 days after the August 2004 Offering Prospectus Date, without the prior written consent of Goldman Sachs as representative of the August 2004 Underwriters (the "August 2004 Lock-Up Agreement"). The foregoing description of the August 2004 Lock-Up Agreement is not intended to be complete and is qualified in its entirety by the complete text of the August 2004 Lock-Up Agreement, the form of which is filed as Exhibit 99.19 hereto. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Item 7 is hereby amended to add the following at the end thereof: Exhibit 99.18 Underwriting Agreement, dated August 3, 2004, by and among Carmike Cinemas, Inc., the Selling Stockholders listed in Schedule II thereto and Goldman, Sachs & Co., as representative of the several underwriters listed in Schedule I thereto. Exhibit 99.19 Form of Lock-Up Agreement. Exhibit 99.20 Power of Attorney, dated November 19, 2003, relating to Goldman, Sachs & Co. Exhibit 99.21 Power of Attorney, dated December 12, 2003, relating to The Goldman Sachs Group, Inc. Exhibit 99.22 Power of Attorney, dated August 5, 2004, relating to GS Capital Partners III, L.P. Exhibit 99.23 Power of Attorney, dated August 4, 2004, relating to GS Capital Partners III Offshore, L.P. Exhibit 99.24 Power of Attorney, dated August 4, 2004, relating to GS Advisors III, L.L.C. Exhibit 99.25 Power of Attorney, dated August 5, 2004, relating to GS Capital Partners III Germany Civil Law Partnership. Exhibit 99.26 Power of Attorney, dated August 5, 2004, relating to Goldman, Sachs & Co. oHG. Exhibit 99.27 Power of Attorney, dated August 5, 2004, relating to Bridge Street Fund 1998, L.P. Exhibit 99.28 Power of Attorney, dated August 5, 2004, relating to Stone Street Fund 1998, L.P. Exhibit 99.29 Power of Attorney, dated August 5, 2004, relating to Stone Street 1998, L.L.C. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. August 5, 2004 GOLDMAN, SACHS & CO. By:/s/ Edward T. Joel -------------------------- Name: Edward T. Joel Title: Attorney-in-fact THE GOLDMAN SACHS GROUP, INC. By:/s/ Edward T. Joel -------------------------- Name: Edward T. Joel Title: Attorney-in-fact GS ADVISORS III, L.L.C. By:/s/ Edward T. Joel -------------------------- Name: Edward T. Joel Title: Attorney-in-fact GS CAPITAL PARTNERS III, L.P. By:/s/ Edward T. Joel -------------------------- Name: Edward T. Joel Title: Attorney-in-fact GS CAPITAL PARTNERS III OFFSHORE, L.P. By:/s/ Edward T. Joel -------------------------- Name: Edward T. Joel Title: Attorney-in-fact GS CAPITAL PARTNERS III GERMANY CIVIL LAW PARTNERSHIP (with limitation of liability) By:/s/ Edward T. Joel -------------------------- Name: Edward T. Joel Title: Attorney-in-fact GOLDMAN, SACHS & CO. oHG By:/s/ Edward T. Joel -------------------------- Name: Edward T. Joel Title: Attorney-in-fact STONE STREET FUND 1998, L.P. By:/s/ Edward T. Joel -------------------------- Name: Edward T. Joel Title: Attorney-in-fact BRIDGE STREET FUND 1998, L.P. By:/s/ Edward T. Joel -------------------------- Name: Edward T. Joel Title: Attorney-in-fact STONE STREET 1998, L.L.C. By:/s/ Edward T. Joel -------------------------- Name: Edward T. Joel Title: Attorney-in-fact EXHIBITS Exhibit 99.18 Underwriting Agreement, dated August 3, 2004, by and among Carmike Cinemas, Inc., the Selling Stockholders listed in Schedule II thereto and Goldman, Sachs & Co., as representative of the several underwriters listed in Schedule I thereto. Exhibit 99.19 Form of Lock-Up Agreement. Exhibit 99.20 Power of Attorney, dated November 19, 2003, relating to Goldman, Sachs & Co. Exhibit 99.21 Power of Attorney, dated December 12, 2003, relating to The Goldman Sachs Group, Inc. Exhibit 99.22 Power of Attorney, dated August 5, 2004, relating to GS Capital Partners III, L.P. Exhibit 99.23 Power of Attorney, dated August 4, 2004, relating to GS Capital Partners III Offshore, L.P. Exhibit 99.24 Power of Attorney, dated August 4, 2004, relating to GS Advisors III, L.L.C. Exhibit 99.25 Power of Attorney, dated August 5, 2004, relating to GS Capital Partners III Germany Civil Law Partnership. Exhibit 99.26 Power of Attorney, dated August 5, 2004, relating to Goldman, Sachs & Co. oHG. Exhibit 99.27 Power of Attorney, dated August 5, 2004, relating to Bridge Street Fund 1998, L.P. Exhibit 99.28 Power of Attorney, dated August 5, 2004, relating to Stone Street Fund 1998, L.P. Exhibit 99.29 Power of Attorney, dated August 5, 2004, relating to Stone Street 1998, L.L.C. SCHEDULE I ---------- The name of each director of The Goldman Sachs Group, Inc. is set forth below. The business address of each person listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, NY 10004. Each person is a citizen of the United States of America except for Lord Browne of Madingley, who is a citizen of the United Kingdom, and Claes Dahlback, who is a citizen of Sweden. The present principal occupation or employment of each of the listed persons is set forth below. Name Present Principal Occupation - -------------------------------------------------------------------------------- Henry M. Paulson, Jr. Chairman and Chief Executive Officer of The Goldman Sachs Group, Inc. Lloyd C. Blankfein President and Chief Operating Officer of The Goldman Sachs Group, Inc. Lord Browne of Madingley Group Chief Executive of BP plc John H. Bryan Retired Chairman and Chief Executive Officer of Sara Lee Corporation Claes Dahlback Nonexecutive Chairman of Investor AB William W. George Retired Chairman and Chief Executive Officer of Medtronic, Inc. James A. Johnson Vice Chairman of Perseus, L.L.C. Lois D. Juliber Vice Chairman of Colgate-Palmolive Company Edward M. Liddy Chairman of the Board, President and Chief Executive Officer of The Allstate Corporation Ruth J. Simmons President of Brown University SCHEDULE II-A-i --------------- The name, position and present principal occupation of each executive officer of GS Advisors III, L.L.C., the sole general partner of each of GS Capital Partners III, L.P. and GS Capital Partners III Offshore, L.P., are set forth below. The business address for all the executive officers listed below is 85 Broad Street, New York, New York 10004, except as follows: The business address of Richard S. Sharp, Hughes B. Lepic, Stephen S. Trevor, Atul Kapur and Ulrika Werdelin is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The business address of Mary Nee is Cheung Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong. The business address of Joseph P. DiSabato is 555 California Street, 45th Floor, San Francisco, CA 94104. The business address of Gene T. Sykes is Fox Plaza, Suite 2600, 2121 Avenue of the Stars, Los Angeles, CA 90067. The business address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL 60606. All executive officers listed below are United States citizens, except as follows: Richard S. Sharp is a citizen of the United Kingdom. Atul Kapur is a citizen of Singapore. Hughes B. Lepic is a citizen of France. Adrian M. Jones is a citizen of Ireland. Ulrika Werdelin is a citizen of Sweden.
Name Position Present Principal Occupation - --------------------- ------------------ --------------------------------- Richard A. Friedman President Managing Director of Goldman, Sachs & Co. Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs & Co Terence M. O'Toole Vice President Managing Director of Goldman, Sachs & Co. Henry Cornell Vice President Managing Director of Goldman, Sachs & Co. Richard S. Sharp Vice President Managing Director of Goldman Sachs International Esta E. Stecher Assistant Secretary Managing Director of Goldman, Sachs & Co. Sanjeev K. Mehra Vice President Managing Director of Goldman, Sachs & Co. Muneer A. Satter Vice President Managing Director of Goldman, Sachs & Co. Steven M. Bunson Assistant Secretary Managing Director of Goldman, Sachs & Co. Elizabeth C. Fascitelli Treasurer Managing Director of Goldman, Sachs & Co. David M. Weil Assistant Treasurer Managing Director of Goldman, Sachs & Co. David J. Greenwald Assistant Secretary Managing Director of Goldman, Sachs & Co. Hughes B. Lepic Vice President Managing Director of Goldman Sachs International Russell E. Makowsky Assistant Secretary Managing Director of Goldman, Sachs & Co. Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs & Co. Stephen S. Trevor Vice President Managing Director of Goldman Sachs International Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs & Co. Robert R. Gheewalla Vice President Managing Director of Goldman, Sachs & Co. Atul Kapur Vice President Managing Director of Goldman Sachs International Ben I. Adler Vice President Managing Director of Goldman, Sachs & Co. Melina E. Higgins Vice President Managing Director of Goldman, Sachs & Co. Adrian M. Jones Vice President Managing Director of Goldman, Sachs & Co. Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs & Co. Mitchell S. Weiss Vice President Vice President of Goldman, Sachs & Co. John E. Bowman Vice President Vice President of Goldman, Sachs & Co. Katherine B. Enquist Vice President/Secretary Managing Director of Goldman, Sachs & Co. Beverly L. O'Toole Assistant Secretary Vice President of Goldman, Sachs & Co. Matthew E. Tropp Assistant Secretary Vice President of Goldman, Sachs & Co. Mary Nee Vice President Executive Director of Goldman Sachs (Asia) L.L.C. Ulrika Werdelin Vice President Executive Director of Goldman Sachs International
SCHEDULE II-A-ii ---------------- The name and principal occupation of each member of the Principal Investment Area Investment Committee of Goldman, Sachs & Co., which exercises the authority of Goldman, Sachs & Co. in managing GS Advisors III, L.L.C., are set forth below. The business address for each member listed below is 85 Broad Street, New York, New York 10004, except as follows: The business address of Gene T. Sykes is Fox Plaza, Suite 2600, 2121 Avenue of the Stars, Los Angeles, CA 90067. The business address of Richard S. Sharp is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The business address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL 60606. All members listed below are United States citizens, except as follows: Richard S. Sharp is a citizen of the United Kingdom. Name Present Principal Occupation - ------------------------------------------------------------ Peter M. Sacerdote Advisory Director of Goldman, Sachs & Co. Richard A. Friedman Managing Director of Goldman, Sachs & Co. Joseph H. Gleberman Managing Director of Goldman, Sachs & Co. Terence M. O'Toole Managing Director of Goldman, Sachs & Co. Gene T. Sykes Managing Director of Goldman, Sachs & Co. Henry Cornell Managing Director of Goldman, Sachs & Co. Robert V. Delaney Advisory Director of Goldman, Sachs & Co. Richard S. Sharp Managing Director of Goldman Sachs International Sanjeev K. Mehra Managing Director of Goldman, Sachs & Co. Muneer A. Satter Managing Director of Goldman, Sachs & Co. Peter G. Sachs Senior Director of The Goldman Sachs Group, Inc. SCHEDULE II-C-i --------------- The name, position and present principal occupation of each executive officer of Stone Street 1998, L.L.C., the sole general partner of Stone Street Fund 1998, L.P. and the managing general partner of Bridge Street Fund 1998, L.P., are set forth below. The business address for all the executive officers listed below is 85 Broad Street, New York, New York 10004, except as follows: The business address of Richard S. Sharp, Hughes B. Lepic, Stephen S. Trevor, Atul Kapur and Ulrika Werdelin is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The business address of Mary Nee is Cheung Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong. The business address of Joseph P. DiSabato is 555 California Street, 45th Floor, San Francisco, CA 94104. The business address of Gene T. Sykes is Fox Plaza, Suite 2600, 2121 Avenue of the Stars, Los Angeles, CA 90067. The business address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL. All executive officers listed below are United States citizens, except as follows: Richard S. Sharp is a citizen of the United Kingdom. Atul Kapur is a citizen of Singapore. Hughes B. Lepic is a citizen of France. Adrian M. Jones is a citizen of Ireland. Ulrika Werdelin is a citizen of Sweden.
Name Positions Present Principal Occupation - ---------------------- --------------------- ------------------------------ Peter M. Sacerdote Chairman/President Advisory Director of Goldman, Sachs & Co. Peter G. Sachs Vice President Senior Director of The Goldman Sachs Group, Inc. Richard A. Friedman Vice President Managing Director of Goldman, Sachs & Co. Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs & Co. Terence M. O'Toole Vice President Managing Director of Goldman, Sachs & Co. Henry Cornell Vice President Managing Director of Goldman, Sachs & Co. Richard S. Sharp Vice President Managing Director of Goldman Sachs International Esta E. Stecher Vice President/ Assistant Managing Director of Goldman, Sachs & Co. Secretary Sanjeev K. Mehra Vice President/Treasurer Managing Director of Goldman, Sachs & Co. Muneer A. Satter Vice President Managing Director of Goldman, Sachs & Co. Steven M. Bunson Assistant Secretary Managing Director of Goldman, Sachs & Co. Elizabeth C. Fascitelli Vice President Managing Director of Goldman, Sachs & Co. David M. Weil Assistant Treasurer Managing Director of Goldman, Sachs & Co. David J. Greenwald Vice President/Assistant Managing Director of Goldman, Sachs & Co. Secretary Hughes B. Lepic Vice President Managing Director of Goldman Sachs International Russell E. Makowsky Assistant Secretary Managing Director of Goldman, Sachs & Co. Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs & Co. Stephen S. Trevor Vice President Managing Director of Goldman Sachs International Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs & Co. Robert R. Gheewalla Vice President Managing Director of Goldman, Sachs & Co. Atul Kapur Vice President Managing Director of Goldman Sachs International Ben I. Adler Vice President Managing Director of Goldman, Sachs & Co. Melina E. Higgins Vice President Managing Director of Goldman, Sachs & Co. Adrian M. Jones Vice President Managing Director of Goldman, Sachs & Co. Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs & Co. Mitchell S. Weiss Vice President Vice President of Goldman, Sachs & Co. John E. Bowman Vice President Vice President of Goldman, Sachs & Co. Raymond G. Matera Vice President Vice President of Goldman, Sachs & Co. Katherine B. Enquist Vice President/Secretary Managing Director of Goldman, Sachs & Co. Beverly L. O'Toole Assistant Secretary Vice President of Goldman, Sachs & Co. Matthew E. Tropp Assistant Secretary Vice President of Goldman, Sachs & Co. Mary Nee Vice President Executive Director of Goldman Sachs (Asia) L.L.C. Richard J. Stingi Vice President Vice President of Goldman, Sachs & Co. Ulrika Werdelin Vice President Executive Director of Goldman Sachs International
SCHEDULE III On April 6, 2000, in connection with an industry-wide investigation by the Securities and Exchange Commission (the "SEC") relating to the pricing of government securities in advance refunding transactions, Goldman, Sachs & Co. ("Goldman Sachs") joined in a global settlement resolving the SEC investigation as well as a related qui tam lawsuit purportedly brought on behalf of the United States entitled United States ex rel. Lissack v. Goldman, Sachs & Co., et al., 95 Civ. 1363 (S.D.N.Y.) (BSJ). Pursuant to the settlement, without admitting or denying the findings, Goldman Sachs consented to the issuance of an SEC administrative order (SEA Rel. No. 42640) which, among other things, found that Goldman Sachs had violated Sections 17(a)(2) and (3) of the Securities Act of 1933 in connection with such pricing of government securities, required Goldman Sachs to cease and desist from violating such provisions, and ordered Goldman Sachs to make payments totaling approximately $5.1 million to the U.S. Treasury and $104,000 to two municipalities. Under the global settlement, the qui tam lawsuit was dismissed with prejudice, and the Internal Revenue Service agreed not to challenge the tax-free nature of the refundings by virtue of the pricing of such securities. In November 2002, the SEC, the National Association of Securities Dealers ("NASD") and the New York Stock Exchange, Inc. ("NYSE") alleged that five broker dealers, including Goldman Sachs, violated Section 17(a) of the Exchange Act and Rule 17a-4 thereunder, NYSE Rules 440 and 342 and NASD Rules 3010 and 3110 by allegedly failing to preserve electronic mail communications for three years and/or to preserve electronic mail communications for the first two years in an accessible place, and by allegedly having inadequate supervisory systems and procedures in relation to the retention of electronic mail communications. Without admitting or denying the allegations, the five broker dealers, including Goldman Sachs, consented to censure by the SEC, NASD and NYSE and to the imposition of a cease-and-desist order by the SEC and Goldman Sachs paid a total fine of $1,650,000 ($550,000 each to the SEC, NASD and NYSE). Goldman Sachs also undertook to review its procedures regarding the preservation of electronic mail communications for compliance with the federal securities laws and regulations and the rules of the NASD and NYSE, and to confirm within a specified period of time that it has established systems and procedures reasonably designed to achieve compliance with those laws, regulations and rules. On April 28, 2003, without admitting or denying liability, ten investment banking firms including Goldman Sachs, entered into global settlements with the Securities and Exchange Commission (the "SEC"), the New York Stock Exchange, Inc. (the "NYSE"), the National Association of Securities Dealers (the "NASD") and certain states to resolve the investigations relating to equity research analyst conflicts of interest. Goldman Sachs was charged with violating NYSE Rules 342, 401, 472 and 475, and NASD Conduct Rules 2110, 2210 and 3010. Goldman Sachs also agreed to a censure by the NYSE and the NASD and to pay a total of $110,000,000 and to adopt a set of industry-wide reforms of its research and investment banking businesses and to adopt certain restrictions on the allocations of "hot" IPO shares. The terms of the global settlement were entered in an order by a federal court in the Southern District of New York on October 31, 2003 (Civil Action Number 03CV2944). On September 4, 2003, Goldman Sachs and the SEC settled administrative proceedings relating to certain trading in U.S. Treasury securities by Goldman Sachs on the morning of October 31, 2001. The Staff of the SEC alleged that Goldman Sachs violated (i) Section 15(c)(1) and Rule 15c1-2 of the Exchange Act as a result of certain trading in U.S. Treasury bonds over an eight minute period on October 31, 2001; and (ii) Section 15(f) of the Exchange Act by failing to maintain policies and procedures specifically addressed to the possible misuse of non-public information obtained from outside consultants. Under the Offer of Settlement submitted by Goldman Sachs and accepted by the SEC, without admitting or denying the SEC's allegations, Goldman Sachs consented to the entry of an Order that, among other things, (i) censured Goldman Sachs; (ii) directed Goldman Sachs to cease and desist from committing or causing any violations of Section 15(c)(1)(A) & (C) and 15(f) and Rule 15c1-2 of the Exchange Act; (iii) ordered Goldman Sachs to pay disgorgement and prejudgment interest in the amount of $1,742,642, and a civil monetary penalty of $5 million; and (iv) directed Goldman Sachs to conduct a review its policies and procedures and to adopt, implement and maintain policies and procedures consistent with the Order and that review. Goldman Sachs also undertook to pay $2,562,740 in disgorgement and interest relating to certain trading in U.S. Treasury bond futures during the same eight minute period. EX-99.18 2 rsex99_18.txt UNDERWRITING AGREEMENT EXHIBIT 99.18 EXECUTION VERSION CARMIKE CINEMAS, INC. COMMON STOCK, PAR VALUE $0.03 PER SHARE ------------------ UNDERWRITING AGREEMENT ---------------------- August 3, 2004 Goldman, Sachs & Co., As representative of the several Underwriters named in Schedule I hereto, c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004. Ladies and Gentlemen: Certain stockholders named in Schedule II hereto (the "Selling Stockholders") of Carmike Cinemas Inc., a Delaware corporation (the "Company"), propose, severally and not jointly, subject to the terms and conditions stated herein, to sell to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of 4,332,415 shares (the "Firm Shares") and, at the election of the Underwriters, up to 649,836 additional shares (the "Optional Shares") of Common Stock, par value $0.03 ("Stock") of the Company (the Firm Shares and the Optional Shares which the Underwriters elect to purchase pursuant to Section 2 hereof are herein collectively called the "Shares"). 1. (a) The Company represents and warrants to, and agrees with, each of the Underwriters that: (i) A registration statement on Form S-3 (File No. 333-117403) (the "Initial Registration Statement") in respect of the Shares has been filed with the Securities and Exchange Commission (the "Commission"); the Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, for each of the other Underwriters, have been declared effective by the Commission in such form; other than a registration statement, if any, increasing the size of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Act"), which became effective upon filing, no other document with respect to the Initial Registration Statement or document incorporated by reference therein has heretofore been filed with the Commission; and no stop order suspending the effectiveness of the Initial Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose has been initiated or, to the Company's knowledge, threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Act is hereinafter called a "Preliminary Prospectus"; the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if any, including all exhibits thereto and including (i) the information contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial Registration Statement at the time it was declared effective and (ii) the documents incorporated by reference in the prospectus contained in the Initial Registration Statement at the time such part of the Initial Registration Statement became effective, each as amended at the time such part of the Initial Registration Statement became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the "Registration Statement"; such final prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is hereinafter called the "Prospectus"; any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Initial Registration Statement that is incorporated by reference in the Registration Statement); (ii) No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein or by a Selling Stockholder expressly for use in the preparation of the answers therein to Item 7 of Form S-3; (iii) The documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act , as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein; (iv) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to the Registration Statement and any amendment thereto and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein or by a Selling Stockholder expressly for use in the preparation of the answers therein to Item 7 of Form S-3; (v) (A) Neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, that, individually or in the aggregate, would have a material adverse effect on the general affairs, business, management, liquidity, current or future financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"), otherwise than as set forth or contemplated in the Prospectus; and (B) since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the capital stock (other than issuances of capital stock in the ordinary course of business pursuant to the Company's employee benefit plans) or long-term debt (other than a decrease not in excess of $500,000) of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus; (vi) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries except to the extent such interference would not, Individually or in the aggregate, have a Material Adverse Effect; (vii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except for such failures to be so qualified or in good standing that would not, individually or in the aggregate, have a Material Adverse Effect; and each subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; (viii)The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description of the Stock contained in the Prospectus; and all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims; (ix) The compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated (A) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (B) will not result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (C) will not result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except in the case of clauses (A) and (C) as would not, individually or in the aggregate, have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for sale of the Shares or the consummation by the Company of the transactions contemplated by this Agreement, except the registration under the Act of the Shares and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters; (x) Neither the Company nor any of its subsidiaries is (A) in violation of its Certificate of Incorporation or By-laws or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except in the case of clause (B) as would not, individually or in the aggregate, have a Material Adverse Effect; (xi) The statements set forth in the Prospectus under the captions "Our Reorganization," and "Underwriting", insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate and complete in all material respects; (xii) Other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, to the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (xiii) The Company is not and, after giving effect to the offering and sale of the Shares, will not be an "investment company", as such term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"); (xiv) Neither the Company nor any of its affiliates does business with the government of Cuba or with any person or affiliate located in Cuba within the meaning of Section 517.075, Florida Statutes; (xv) Ernst & Young LLP, who have certified certain financial statements of the Company and its subsidiaries, and PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company and its subsidiaries, are each independent public accountants as required by the Act and the rules and regulations of the Commission thereunder; (xvi) The financial statements of the Company, together with the related schedules and notes, set forth in the Registration Statement, Preliminary Prospectus and Prospectus, or incorporated therein by reference, comply in all material respects with the requirements of the Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and fairly present the consolidated financial condition of the Company and its subsidiaries as of the dates indicated and the results of operations and changes in cash flows for the periods therein specified in conformity with generally accepted accounting principles consistently applied throughout such periods; and no other financial statements or financial statement schedules are required to be included in the Registration Statement or Prospectus; (xvii) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management's general or specific authorization, and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences; (xviii) Each of the Company and its subsidiaries has filed on a timely basis all required federal, state, local and foreign income and franchise tax returns, if any such returns were required to be filed, through the date hereof, and has paid all taxes (and any related assessments, fines or penalties) shown as due thereon; no tax deficiency has been asserted against the Company or any of its subsidiaries, nor does the Company or any of its subsidiaries know of any tax deficiency which is likely to be asserted against any such entity which, if determined adversely to any such entity, could have a Material Adverse Effect; and such charges, accruals and reserves, as may be required by generally accepted accounting principles, have been provided for in the financial statements of such entities in respect of all taxes for all periods as to which the tax liability of the relevant entity has not been finally determined, is subject to challenge or remains open to examination by applicable taxing authorities; (xix) Except as otherwise set forth the Prospectus, the Company (i) is in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) has received all permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business and (iii) is in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, individually or in the aggregate, have a Material Adverse Effect; (xx) Except as described in the Prospectus under "Certain Relationships and Related Party Transactions", there are no transactions required to be disclosed in the Registration Statement and Prospectus, including the documents incorporated by reference therein, pursuant to Item 404 of Regulation S-K under the Act; and (xxi) Each of the Company and its subsidiaries is in material compliance with all applicable laws respecting employment and employment practices, terms and conditions of employment and wages and hours and has not received notice of any unfair labor practice complaint pending before the National Labor Relations Board; there is not any labor strike, significant slowdown or stoppage actually pending or, to the Company's knowledge, threatened against the Company or its subsidiaries and neither the Company nor any of its subsidiaries has received notice that any representation petition respecting its employees has been filed with the National Labor Relations Board; and except as disclosed in the Prospectus, neither the Company nor any of its subsidiaries is party to a collective bargaining agreement. (b) Each of the Selling Stockholders severally, and not jointly, represents and warrants to, and agrees with, each of the Underwriters and the Company that: (i) All consents, approvals, authorizations and orders necessary for the execution and delivery by such Selling Stockholder of this Agreement and the Power of Attorney and the Custody Agreement hereinafter referred to, and for the sale and delivery of the Shares to be sold by such Selling Stockholder hereunder, have been obtained; and such Selling Stockholder has full right, power and authority to enter into this Agreement, the Power-of-Attorney and the Custody Agreement and to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder; (ii) The sale of the Shares to be sold by such Selling Stockholder hereunder and the compliance by such Selling Stockholder with all of the provisions of this Agreement, the Power of Attorney and the Custody Agreement (each as defined below) and the consummation of the transactions herein and therein contemplated (A) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, (B) will not result in any violation of the provisions of the Certificate of Incorporation or By-laws of such Selling Stockholder if such Selling Stockholder is a corporation, the Partnership Agreement of such Selling Stockholder if such Selling Stockholder is a partnership, or other applicable governing document if such Selling Stockholder is a trust or other entity or (C) will not result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder or the property of such Selling Stockholder, except in the case of clause (A) as would not, individually or in the aggregate, have an adverse effect on the ability of such Selling Stockholder to consummate the transactions contemplated by this Agreement, the Power of Attorney or the Custody Agreement; (iii) Such Selling Stockholder has, and immediately prior to each Time of Delivery (as defined in Section 4 hereof) such Selling Stockholder will have, good and valid title to the Shares to be sold by such Selling Stockholder hereunder, free and clear of all adverse claims within the meaning of the Uniform Commercial Code; and, upon delivery of such Shares and payment therefor pursuant hereto, good and valid title to such Shares, free and clear of all adverse claims within the meaning of the Uniform Commercial Code, will pass to the several Underwriters; (iv) Such Selling Stockholder has executed and delivered to you a lock-up agreement in the form attached hereto as Annex I; (v) Such Selling Stockholder has not taken and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; (vi) The Preliminary Prospectus and the Registration Statement did, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus, when they become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and will 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; provided that this representation and warranty is limited only to any statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder (in its capacity as a Selling Stockholder) expressly for use therein; (vii) In order to document the Underwriters' compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the First Time of Delivery (as hereinafter defined) a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof); (viii) Certificates in negotiable form representing all of the Shares to be sold by such Selling Stockholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the "Custody Agreement"), duly executed and delivered by such Selling Stockholder to Mellon Investor Services LLC, as custodian (the "Custodian"), and such Selling Stockholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to you (the "Power of Attorney"), appointing the person or persons indicated in Schedule II hereto, and each of them, as such Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute and deliver this Agreement on behalf of such Selling Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling Stockholders as provided in Section 2 hereof, to authorize the delivery of the Shares to be sold by such Selling Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with the transactions contemplated by this Agreement and the Custody Agreement; and (ix) The Shares represented by the certificates held in custody for such Selling Stockholder under the Custody Agreement are subject to the interests of the Underwriters hereunder; the arrangements made by such Selling Stockholder for such custody, and the appointment by such Selling Stockholder of the Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable; the obligations of the Selling Stockholders hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Stockholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership or corporation, or by the occurrence of any other event; if any individual Selling Stockholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares hereunder, certificates representing the Shares shall be delivered by or on behalf of the Selling Stockholders in accordance with the terms and conditions of this Agreement and of the Custody Agreements; and actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event. 2. Subject to the terms and conditions herein set forth, (a) each of the Selling Stockholders agrees, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from each of the Selling Stockholders, at a purchase price per share of $31.515, the number of Firm Shares (to be adjusted by you so as to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by each of the Selling Stockholders as set forth opposite their respective names in Schedule II hereto by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter, as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters from all of the Selling Stockholders hereunder and (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Optional Shares as provided below, each of the Selling Stockholders agrees, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from each of the Selling Stockholders, at the purchase price per share set forth in clause (a) of this Section 2, that portion of the number of Optional Shares as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares) determined by multiplying such number of Optional Shares by a fraction the numerator of which is the maximum number of Optional Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Optional Shares that all of the Underwriters are entitled to purchase hereunder. The Selling Stockholders, as and to the extent indicated in Schedule II hereto, hereby grant, severally and not jointly, to the Underwriters the right to purchase at their election up to 649,836 Optional Shares, at the purchase price per share set forth in the paragraph above, for the sole purpose of covering sales of shares in excess of the number of Firm Shares, provided that the purchase price per Optional Share shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the Firm Shares but not payable on the Optional Shares. Any such election to purchase Optional Shares shall be made in proportion to the maximum number of Optional Shares to be sold by each Selling Stockholder as set forth in Schedule II hereto. Any such election to purchase Optional Shares may be exercised only by written notice from you to the Attorneys-in-Fact given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 4 hereof) or, unless you and the Attorneys-in-Fact otherwise agree in writing, earlier than two or later than ten business days after the date of such notice. 3. Upon the authorization by you of the release of the Firm Shares, the several Underwriters propose to offer the Firm Shares for sale upon the terms and conditions set forth in the Prospectus. 4. (a) The Shares to be purchased by each Underwriter hereunder, in definitive form, and in such authorized denominations and registered in such names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior notice to the Selling Stockholders shall be delivered by or on behalf of the Selling Stockholders to Goldman, Sachs & Co., through the facilities of The Depository Trust Company ("DTC"), for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Custodian to Goldman, Sachs & Co. at least forty-eight hours in advance. The Company will cause the certificates representing the Shares to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of DTC or its designated custodian (the "Designated Office"). The time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York time, on August 9, 2004, or such other time and date as Goldman, Sachs & Co. and the Selling Stockholders may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date specified by Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co. of the Underwriters' election to purchase such Optional Shares, or such other time and date as Goldman, Sachs & Co. and the Selling Stockholders may agree upon in writing. Such time and date for delivery of the Firm Shares is herein called the "First Time of Delivery", such time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein called the "Second Time of Delivery", and each such time and date for delivery is herein called a "Time of Delivery". (b) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 7 hereof, including the cross receipt for the Shares and any additional documents requested by the Underwriters pursuant to Section 7(l) hereof, will be delivered at the offices of King & Spalding LLP, 191 Peachtree Street, Atlanta, Georgia 30303 (the "Closing Location"), and the Shares will be delivered at the Designated Office, all at such Time of Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New York City time, on the New York Business Day next preceding such Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close. 5. The Company agrees with each of the Underwriters: (a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or any supplement to the Registration Statement or Prospectus which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Shares; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order; (b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; (c) Prior to 10:00 A.M., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required to deliver a prospectus in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act; (d) To make generally available to its securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158); (e) During the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Prospectus, not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities (other than pursuant to (1) employee stock option plans existing on the date of this Agreement, (2) the conversion or exchange of convertible or exchangeable securities outstanding as of the date of this Agreement, or (3) any merger, acquisition or purchase whereby the Company uses shares of the Company as all or a portion of the consideration, so long as the terms of any such transaction contractually prohibit the resale or other acquisition of such shares of Stock through and including the date 90 days after the date of the Prospectus; provided that, in the case of clause (3), the Company may only issue stock representing up to an aggregate of 10% of its outstanding shares of the Company on the date hereof during the 90 days following the date of this Prospectus), without your prior written consent; (f) To furnish to its stockholders within the time periods specified in the Commission's rules and regulations after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, within the time periods specified in the Commission's rules and regulations after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), to make available to its stockholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; (g) During a period of three years from the effective date of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) furnished to stockholders and not publicly available via EDGAR, and to deliver to you, as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and not publicly available via EDGAR (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its stockholders generally or to the Commission); (h) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and (i) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company's trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares (the "License"); provided, however, that the License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred. 6. The Company and each of the Selling Stockholders covenant and agree with one another and with the several Underwriters that (a) the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Shares under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (iii) all expenses in connection with the qualification of the Shares for offering and sale under state securities laws as provided in Section 5(b) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv) the filing fees incident to, and the fees and disbursements of counsel for the Underwriters in connection with, securing any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Shares; (v) the cost of preparing stock certificates; (vi) the cost and charges of any transfer agent or registrar; (vii) any fees and expenses of the Custodian; and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section; and (b) such Selling Stockholder will pay or cause to be paid all costs and expenses incident to the performance of such Selling Stockholder's obligations hereunder which are not otherwise specifically provided for in this Section, including (i) any fees and expenses of counsel for such Selling Stockholder incurred in connection with reviewing and otherwise acting in connection with the Registration Statement (except that the Company shall pay such fees and expenses incurred by such Selling Stockholder, up to a maximum of $5,000; provided that, for purposes of this exception to clause (b)(i), GS Capital Partners III, L.P., GS Capital Partners III Offshore, L.P., Goldman, Sachs & Co. Verwaltungs GmbH, Bridge Street Fund 1998, L.P. and Stone Street Fund 1998, L.P, collectively, shall be treated as a single Selling Stockholder, TJT(B)(Bermuda) Investment Company Ltd., TJT (B), The Jordan Trust, David W. Zalaznick and Barbara Zalaznick, JT TEN, David W. Zalaznick, the Samantha M. Zalaznick 1995 Irrevocable Trust, the Amy Y. Zalaznick 1995 Irrevocable Trust and the Jeffrey C. Zalaznick 1995 Irrevocable Trust, collectively, shall be treated as a single Selling Stockholder and Leucadia National Corporation and Leucadia Investors, Inc., collectively, shall be treated as a single Selling Stockholder), (ii) any fees and expenses of the Attorneys-in-Fact for such Selling Stockholder; and (iii) all expenses and taxes incident to the sale and delivery of the Shares to be sold by such Selling Stockholder to the Underwriters hereunder. In connection with clause (b) of the preceding sentence, Goldman, Sachs & Co. agrees to pay New York State stock transfer tax, and the Selling Stockholder agrees to reimburse Goldman, Sachs & Co. for associated carrying costs if such tax payment is not rebated on the day of payment and for any portion of such tax payment not rebated. It is understood, however, that, except as provided in this Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make. 7. The respective obligations of the Underwriters hereunder as to the Shares to be delivered at each Time of Delivery shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and of the Selling Stockholders herein are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Selling Stockholders shall have performed all of its and their respective obligations hereunder theretofore to be performed, and the following additional conditions: (a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction; (b) Sullivan & Cromwell LLP, counsel for the Underwriters, shall have furnished to you such written opinion or letter, dated such Time of Delivery, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; (c) King & Spalding LLP, counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus; (ii) The Company has an authorized capitalization as set forth in the Prospectus, all of the issued shares of capital stock of the Company (including the Shares being delivered at such Time of Delivery) have been duly and validly authorized and issued and are fully paid and non-assessable; and the Shares conform to the description of the Stock contained in the Prospectus; (iii) The Company is duly qualified as a foreign corporation for the transaction of business and is in good standing in each jurisdiction listed on Exhibit A to such counsel's opinion; (iv) Each subsidiary of the Company listed on exhibit B to such counsel's opinion is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each such subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and are owned directly or indirectly by the Company, free and clear of all adverse claims within the meaning of the Uniform Commercial Code other than such security interests provided to the Company's lenders in connection with the Company's existing credit facilities; (v) Other than as set forth in the Prospectus, such counsel is not aware of any legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect; and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (vi) This Agreement has been duly authorized, executed and delivered by the Company; (vii) The compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any agreement filed as an exhibit to the Registration Statement, (B) result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or (C) result in any violation of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries listed on Exhibit B to such counsel's opinion or any of their properties, except in the case of clause (C) as would not, individually or in the aggregate, have a Material Adverse Effect; (viii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the execution and delivery of this Agreement by the Company or the performance of its obligations hereunder, except the registration under the Act of the Shares, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws or any applicable law, rule or regulation of any foreign jurisdiction in connection with the purchase and distribution of the Shares by the Underwriters; (ix) The statements set forth in the Prospectus under the captions "Our Reorganization," and "Underwriting", insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate and complete in all material respects; (x) The Company is not an "investment company", as such term is defined in the Investment Company Act; (xi) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and (xii) The Registration Statement and the Prospectus and any further amendments and supplements thereto made by the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder. In addition, such counsel shall state that (i) though such counsel is not passing on and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, except for those referred to in the opinion in subsection (ix) of this Section 7(c), such counsel has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to such Time of Delivery (other than the financial statements and notes thereto, the financial statement schedules and the other financial data included therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery (other than the financial statements and notes thereto, the financial statement schedules and the other financial data included therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that, as of such Time of Delivery, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery (other than the financial statements and notes thereto, the financial statement schedules and the other financial data included therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and such counsel has no reason to believe that any of the documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact, or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; and such counsel does not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; (d) The respective counsel for each of the Selling Stockholders, as indicated in Schedule II hereto, each shall have furnished to you their written opinion with respect to each of the Selling Stockholders for whom they are acting as counsel (a draft of each such opinion is attached as Annex II(b) hereto), dated such Time of Delivery, in form and substance satisfactory to you. (e) Bradley Arant Rose & White LLP, Alabama counsel for Eastwynn Theatres, Inc., shall have furnished to you their written opinion, dated such Time of Delivery, in form and substance satisfactory to you. (f) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, each of Ernst & Young LLP and PricewaterhouseCoopers LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you; (g)(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus, except as disclosed or contemplated in the Prospectus, there shall not have been any change in the capital stock (other than issuances of capital stock in the ordinary course of business pursuant to the Company's employee benefit plans) or long-term debt (other than a decrease not in excess of $500,000) of the Company or any of its subsidiaries, or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; (h) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company's debt securities by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities; (i) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on NASDAQ; (ii) a suspension or material limitation in trading in the Company's securities on NASDAQ; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; (j) The Company has obtained and delivered to the Underwriters executed copies of an agreement from each director and executive officer and each Selling Stockholder substantially in the form attached hereto as Annex I; (k) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and (l) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of the Selling Stockholders, respectively, satisfactory to you as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and the Selling Stockholders of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, and as to such other matters as you may reasonably request, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) and (g) of this Section. 8. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter through Goldman, Sachs & Co. expressly for use therein. (b) Each of GS Capital Partners III, L.P., GS Capital Partners III Offshore, L.P., Goldman, Sachs & Co. Verwaltungs GmbH, Bridge Street Fund 1998, L.P., Stone Street Fund 1998, L.P., TJT (B) (Bermuda) Investment Company Ltd., TJT (B), The Jordan Trust, David W. Zalaznick and Barbara Zalaznick, JT TEN, David W. Zalaznick, the Samantha M. Zalaznick 1995 Irrevocable Trust, the Amy Y. Zalaznick 1995 Irrevocable Trust, the Jeffrey C. Zalaznick 1995 Irrevocable Trust, Leucadia National Corporation and Leucadia Investors, Inc., severally and not jointly, will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder (in its capacity as a Selling Stockholder) expressly for use therein; and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that such Selling Stockholder shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter through Goldman, Sachs & Co. expressly for use therein; provided further, that the liability of any Selling Stockholder pursuant to this Section 8(b) shall not exceed the product of the number of Shares sold by such Selling Stockholder, including any Optional Shares, and the initial public offering price of the Shares as set forth in the Prospectus. (c) Each Underwriter will indemnify and hold harmless the Company and each Selling Stockholder against any losses, claims, damages or liabilities to which the Company or such Selling Stockholder may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Underwriter through Goldman, Sachs & Co. expressly for use therein; and will reimburse the Company or each Selling Stockholder for any legal or other expenses reasonably incurred by the Company or such Selling Stockholder, as the case may be, in connection with investigating or defending any such action or claim as such expenses are incurred. (d) Promptly after receipt by an indemnified party under subsections (a), (b) or (c) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. (e) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsections (a), (b) or (c) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Stockholders on the one hand and the Underwriters on the other from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (d) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Selling Stockholders on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Selling Stockholders on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering of the Shares purchased under this Agreement (before deducting expenses) received by the Company and the Selling Stockholders bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Selling Stockholders on the one hand or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, each of the Selling Stockholders and the Underwriters agree that it would not be just and equitable if contributions pursuant to this subsection (e) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (e), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public, exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations in this subsection (e) to contribute are several in proportion to their respective underwriting obligations and not joint. (f) The obligations of the Company and the Selling Stockholders under this Section 8 shall be in addition to any liability which the Company and the respective Selling Stockholders may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company or any Selling Stockholder within the meaning of the Act. 9. (a) If any Underwriter shall default in its obligation to purchase the Shares which it has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or another party or other parties to purchase such Shares on the terms contained herein. If within thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such Shares, then the Selling Stockholders shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to you to purchase such Shares on such terms. In the event that, within the respective prescribed periods, you notify the Selling Stockholders that you have so arranged for the purchase of such Shares, or the Selling Stockholders notify you that they have so arranged for the purchase of such Shares, you or the Selling Stockholders shall have the right to postpone a Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Shares. (b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Selling Stockholders as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the aggregate number of all the Shares to be purchased at such Time of Delivery, then the Selling Stockholders shall have the right to require each non-defaulting Underwriter to purchase the number of Shares which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Selling Stockholders as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate number of all of the Shares to be purchased at such Time of Delivery, or if the Selling Stockholders shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect to the Second Time of Delivery, the obligations of the Underwriters to purchase and of the Selling Stockholders to sell the Optional Shares) shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company or the Selling Stockholders, except for the expenses to be borne by the Company and the Selling Stockholders and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 10. The respective indemnities, agreements, representations, warranties and other statements of the Company, the Selling Stockholders and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any of the Selling Stockholders, or any officer or director or controlling person of the Company, or any controlling person of any Selling Stockholder, and shall survive delivery of and payment for the Shares. Anything herein to the contrary notwithstanding, the indemnity agreement of the Company in subsection (a) of Section 8 hereof, the representations and warranties in subsections (ii), (iii) and (iv) of Section 1(a) hereof and any representation or warranty as to the accuracy of the Registration Statement or the Prospectus contained in any certificate furnished by the Company pursuant to Section 7 hereof, insofar as they may constitute a basis for indemnification for liabilities (other than payment by the Company of expenses incurred or paid in the successful defense of any action, suit or proceeding) arising under the Act, shall not extend to the extent of any interest therein of a controlling person or partner of an Underwriter who is a director, officer or controlling person of the Company when the Registration Statement has become effective, except in each case to the extent that an interest of such character shall have been determined by a court of appropriate jurisdiction as not against public policy as expressed in the Act. Unless in the opinion of counsel for the Company the matter has been settled by controlling precedent, the Company will, if a claim for such indemnification is asserted, submit to a court of appropriate jurisdiction the question of whether such interest is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 11. If this Agreement shall be terminated pursuant to Section 9 hereof, neither the Company nor the Selling Stockholders shall then be under any liability to any Underwriter except as provided in Sections 6 and 8 hereof. If this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares not sold as a result of any such failure, refusal or inability to perform. If this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of one of the Selling Stockholders to comply with the terms or to fulfill any of the conditions of this Agreement or if for any reason one of the Selling Stockholders shall be unable to perform its obligations under this Agreement (including, but not limited to, the delivery of the Shares), such Selling Stockholder will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares not sold as a result of any such failure, refusal or inability to perform. Notwithstanding the foregoing, if this Agreement is terminated by the Underwriters because of the failure of the conditions set forth in Section 7(i) to be satisfied, the Selling Stockholders will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares based on the pro rata number of Shares proposed to be sold by each Selling Stockholder as set forth in Schedule II. If this Agreement is terminated by the Underwriters and the Underwriters are reimbursed by either the Company or one or more of the Selling Stockholders as described above, the Company and the Selling Stockholders shall then be under no further liability to any Underwriter in respect of any Shares not delivered pursuant to this Agreement except as provided in Sections 6 and 8 hereof. 12. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you; and in all dealings with any Selling Stockholder hereunder, you and the Company shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of such Selling Stockholder made or given by any or all of the Attorneys-in-Fact for such Selling Stockholder. All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the representative at 85 Broad Street, New York, New York 10004, Attention: Registration Department; if to any Selling Stockholder shall be delivered or sent by mail, telex or facsimile transmission to counsel for such Selling Stockholder at its address set forth in Schedule II hereto; and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 8(d) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters' Questionnaire or telex constituting such Questionnaire, which address will be supplied to the Company or the Selling Stockholders by you on request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof. 13. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and the Selling Stockholders and, to the extent provided in Sections 8 and 10 hereof, the officers and directors of the Company and each person who controls the Company, any Selling Stockholder or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. 14. Time shall be of the essence of this Agreement. As used herein, the term "business day" shall mean any day when the Commission's office in Washington, D.C. is open for business. 15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 16. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. 17. The Company and the Selling Stockholders are authorized, subject to applicable law, to disclose any and all aspects of this potential transaction that are necessary to support any U.S. federal income tax benefits expected to be claimed with respect to such transaction, and all materials of any kind (including tax opinions and other tax analyses) related to those benefits, without the Underwriters imposing any limitation of any kind. If the foregoing is in accordance with your understanding, please sign and return to us ten counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters, the Company and each of the Selling Stockholders. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company and the Selling Stockholders for examination, upon request, but without warranty on your part as to the authority of the signers thereof. Any person executing and delivering this Agreement as Attorney-in-Fact for a Selling Stockholder represents by so doing that he has been duly appointed as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and binding Power-of-Attorney which authorizes such Attorney-in-Fact to take such action. Very truly yours, Carmike Cinemas, Inc. By: /s/ Martin A. Durant ---------------------------------- Name: Martin A. Durant Title: Senior Vice President GS Capital Partners III, L.P. GS Capital Partners III Offshore, L.P. Goldman, Sachs & Co. Verwaltungs GmbH Bridge Street Fund 1998, L.P. Stone Street Fund 1998, L.P. By: /s/ Elizabeth C. Fascitelli ---------------------------------- Name: Elizabeth C. Fascitelli Title: Attorney-in-Fact Leucadia National Corporation Leucadia Investors, Inc. By: /s/ Joseph A. Orlando ---------------------------------- Name: Joseph A. Orlando Title: Attorney-in-Fact TJT (B) (Bermuda) Investment Company Ltd. TJT (B) The Jordan Trust By: /s/ John W. Jordan II ---------------------------------- Name: John W. Jordan II Title: Attorney-in-Fact David W. Zalaznick By: /s/ David W. Zalaznick ---------------------------------- Name: David W. Zalaznick David W. Zalaznick and Barbara Zalaznick, JT TEN Amy Y. Zalaznick 1995 Irrevocable Trust Jeffrey C. Zalaznick 1995 Irrevocable Trust Samantha M. Zalaznick 1995 Irrevocable Trust By: /s/ David W. Zalaznick ---------------------------------- Name: David W. Zalaznick Title: Attorney-in-Fact Accepted as of the date hereof at New York, New York: Goldman, Sachs & Co. By: /s/ Goldman, Sachs & Co. ---------------------------------- (Goldman, Sachs & Co.) On behalf of each of the Underwriters SCHEDULE I NUMBER OF OPTIONAL SHARES TO BE TOTAL NUMBER OF PURCHASED IF FIRM SHARES MAXIMUM OPTION UNDERWRITER TO BE PURCHASED EXERCISED Goldman, Sachs & Co. ................... 1,260,733 o Bear, Stearns & Co. Inc. ............... 945,550 o UBS Securities LLC...................... 1,155,672 o Harris Nesbitt Corp..................... 525,305 o Jefferies & Company, Inc................ 315,183 o Banc of America Securities LLC.......... 129,972 o ------------ ---------- Total............................... 4,332,415 649,836 ============ ========== SCHEDULE II
NUMBER OF OPTIONAL SHARES TO BE TOTAL NUMBER OF SOLD IF FIRM SHARES MAXIMUM OPTION TO BE SOLD EXERCISED The Selling Stockholders: GS Capital Partners III, L.P.(a)........................ 1,592,331 242,250 GS Capital Partners III Offshore, L.P.(a) .............. 444,916 59,432 Goldman, Sachs & Co. Verwaltungs GmbH(a) .............. 70,250 14,443 Bridge Street Fund 1998, L.P.(a) ....................... 46,833 15,597 Stone Street Fund 1998, L.P.(a)......................... 187,333 19,527 TJT (B) (Bermuda) Investment Company Ltd.(b) ........... 682,331 116,042 TJT (B)(b) 3,918 0 The Jordan Trust(b) 87,366 0 David W. Zalaznick and Barbara Zalaznick, JT TEN(b) 542,632 87,883 David W. Zalaznick(b) 41,088 0 Amy Y. Zalaznick 1995 Irrevocable Trust(b) 779 0 Jeffrey C. Zalaznick 1995 Irrevocable Trust(b) 779 0 Samantha M. Zalaznick 1995 Irrevocable Trust(b) 779 0 Leucadia National Corporation(c)........................ 516,177 94,662 Leucadia Investors, Inc.(c)............................. 114,903 0 ---------- ----------- 4,332,415 649,836 Total................................................... ========== =========== - ------------------------- (a) Opinions for this Selling Stockholder will be delivered pursuant to Section 7(d) by the General Counsel of the Merchant Banking Division of Goldman, Sachs & Co., Maples & Calder (with respect to GS Capital Partners III Offshore, L.P.) and Pollath + Partners (with respect to Goldman, Sachs & Co. Verwaltungs GmbH)), and this Selling Stockholder has appointed Richard A. Friedman, Elizabeth C. Fascitelli and Kenneth A. Pontarelli, and any of them, as the Attorneys-in-Fact for such Selling Stockholder. (b) This Selling Stockholder is represented by Mayer, Brown, Rowe & Maw LLP, 1675 Broadway, New York, New York 10019, and has appointed either John W. Jordan, II or David W. Zalaznick, as the Attorney-in-Fact for such Selling Stockholder. (c) This Selling Stockholder is represented by Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153, and has appointed Ian M. Cumming and Joseph A. Orlando, and each of them, as the Attorneys-in-Fact for such Selling Stockholder.
EX-99.19 3 rsex99_19.txt LOCK UP AGREEMENT EXHIBIT 99.19 CARMIKE CINEMAS, INC. LOCK-UP AGREEMENT August , 2004 Goldman, Sachs & Co. 85 Broad Street New York, NY 10004 Re: Carmike Cinemas, Inc. - Lock-Up Agreement ----------------------------------------- Ladies and Gentlemen: The undersigned understands that you, as representative (the "Representative"), propose to enter into an Underwriting Agreement on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the "Underwriters"), with Carmike Cinemas, Inc., a Delaware corporation (the "Company") and the Selling Stockholders named therein, providing for a public offering of the Common Stock of the Company (the "Shares") pursuant to a Registration Statement on Form S-3(Registration No. 333-117403) filed with the Securities and Exchange Commission (the "SEC"). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning from the date of the final Prospectus covering the public offering of the Shares and continuing to and including the date 90 days after the date of such final Prospectus, the undersigned will not offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Common Stock of the Company, or any options or warrants to purchase any shares of Common Stock of the Company, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock of the Company, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the SEC (collectively the "Undersigned's Shares"). The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Undersigned's Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned's Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Shares. Notwithstanding the foregoing, the undersigned may transfer the Undersigned's Shares (i) as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, or (iii) with the prior written consent of Goldman, Sachs & Co. on behalf of the Underwriters. For purposes of this Lock-Up Agreement, "immediate family" shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. In addition, notwithstanding the foregoing, if the undersigned is a corporation, the corporation may transfer the capital stock of the Company to any wholly-owned subsidiary of such corporation, and if the undersigned is a partnership, corporation or other entity, the partnership, corporation or other entity may transfer the capital stock of the Company to any affiliate of such partnership, corporation or other entity, respectively (including any affiliate that is a Selling Stockholder (as defined in the Underwriting Agreement)); provided, however, that in any such case, it shall be a condition to the transfer that the transferee execute an agreement stating that the transferee is receiving and holding such capital stock subject to the provisions of this Lock-Up Agreement and there shall be no further transfer of such capital stock except in accordance with this Lock-Up Agreement, and provided further that any such transfer shall not involve a disposition for value. The undersigned now has, and, except as contemplated by clause (i), (ii), or (iii) above, for the duration of this Lock-Up Agreement will have, good and valid title to the Undersigned's Shares, free and clear of all adverse claims within the meaning of the Uniform Commercial Code. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent and registrar against the transfer of the Undersigned's Shares except in compliance with the foregoing restrictions. Notwithstanding anything herein to the contrary, the foregoing shall not be deemed to restrict Goldman, Sachs & Co. and its affiliates from engaging in any brokerage, investment advisory, financial advisory, anti-raid advisory, merger advisory, financing, asset management, trading, market making, arbitrage, principal investing and other similar activities conducted in the ordinary course of their affiliates' business. The undersigned understands that the Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the offering. The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned's heirs, legal representatives, successors, and assigns. Very truly yours, ------------------------------- Exact Name ------------------------------- Authorized Signature ------------------------------- Title EX-99.20 4 rsex99_20.txt POWER OF ATTORNEY EXHIBIT 99.20 POWER OF ATTORNEY ----------------- KNOW ALL PERSONS BY THESE PRESENTS that GOLDMAN, SACHS & CO. (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel, Saskia Brookfield Martin and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of November 19, 2003. GOLDMAN, SACHS & CO. By: /s/ GREGORY K. PALM ------------------------------- Name: GREGORY K. PALM Title: Managing Director EX-99.20 5 rsex99_21.txt POWER OF ATTORNEY EXHIBIT 99.21 POWER OF ATTORNEY ----------------- KNOW ALL PERSONS BY THESE PRESENTS that THE GOLDMAN SACHS GROUP, INC. (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel, Saskia Brookfield Martin and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of December 12, 2003. THE GOLDMAN SACHS GROUP, INC. By: /s/ GREGORY K. PALM ------------------------------- Name: GREGORY K. PALM Title: Executive Vice President and General Counsel EX-99.20 6 rsex99_22.txt POWER OF ATTORNEY EXHIBIT 99.22 POWER OF ATTORNEY ----------------- KNOW ALL PERSONS BY THESE PRESENTS that GS CAPITAL PARTNERS III, L.P. (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, as amended, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted ceases to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of August 5, 2004. GS CAPITAL PARTNERS III, L.P. By: GS Advisors III, L.L.C. /s/ KACA B. ENQUIST - ------------------------------ KACA B. ENQUIST Vice President EX-99.23 7 rsex99_23.txt POWER OF ATTORNEY EXHIBIT 99.23 POWER OF ATTORNEY ----------------- KNOW ALL PERSONS BY THESE PRESENTS that GS CAPITAL PARTNERS III OFFSHORE, L.P. (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, as amended, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted ceases to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of August 4, 2004. GS CAPITAL PARTNERS III OFFSHORE, L.P. By: GS Advisors III, L.L.C. /s/ KACA B. ENQUIST - ------------------------------ KACA B. ENQUIST Vice President EX-99.24 8 rsex99_24.txt POWER OF ATTORNEY EXHIBIT 99.24 POWER OF ATTORNEY ----------------- KNOW ALL PERSONS BY THESE PRESENTS that GS ADVISORS III, L.L.C. (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of August 4, 2004. GS ADVISORS III, L.L.C. By:/s/ KACA B. ENQUIST ------------------------------ Name: KACA B. ENQUIST Title: Vice President EX-99.25 9 rsex99_25.txt POWER OF ATTORNEY EXHIBIT 99.25 POWER OF ATTORNEY ----------------- KNOW ALL PERSONS BY THESE PRESENTS that GS CAPITAL PARTNERS III, GERMANY CIVIL LAW PARTNERSHIP (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, as amended, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted ceases to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of August 5, 2004. GS CAPITAL PARTNERS III, GERMANY CIVIL LAW PARTNERSHIP By: Goldman, Sachs & Co. oHG By: Goldman, Sachs & Co. Finanz GmbH /s/ SABINE MOCK /s/ MICHAEL SCHRAMM - ----------------------------- ------------------------------- SABINE MOCK MICHAEL SCHRAMM Executive Director Executive Director EX-99.26 10 rsex99_26.txt POWER OF ATTORNEY EXHIBIT 99.26 POWER OF ATTORNEY ----------------- KNOW ALL PERSONS BY THESE PRESENTS that GOLDMAN, SACHS & CO. oHG (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, as amended, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted ceases to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of August 5, 2004. GOLDMAN, SACHS & CO. oHG /s/ SABINE MOCK /s/ MICHAEL SCHRAMM - ----------------------------- ------------------------------- SABINE MOCK MICHAEL SCHRAMM Executive Director Executive Director EX-99.27 11 rsex99_27.txt POWER OF ATTORNEY EXHIBIT 99.27 POWER OF ATTORNEY ----------------- KNOW ALL PERSONS BY THESE PRESENTS that BRIDGE STREET FUND 1998, L.P. (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, as amended, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted ceases to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of August 5, 2004. BRIDGE STREET FUND 1998, L.P. By: Stone Street 1998, L.L.C. /s/ KACA B. ENQUIST - ------------------------------ KACA B. ENQUIST Vice President EX-99.28 12 rsex99_28.txt POWER OF ATTORNEY EXHIBIT 99.28 POWER OF ATTORNEY ----------------- KNOW ALL PERSONS BY THESE PRESENTS that STONE STREET FUND 1998, L.P. (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of August 5, 2004. STONE STREET FUND 1998, L.P. By: Stone Street 1998, L.L.C. By:/s/ KACA B. ENQUIST ------------------------------ Name: KACA B. ENQUIST Title: Vice President EX-99.29 13 rsex99_29.txt POWER OF ATTORNEY EXHIBIT 99.29 POWER OF ATTORNEY ----------------- KNOW ALL PERSONS BY THESE PRESENTS that STONE STREET 1998, L.L.C. (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of August 5, 2004. STONE STREET 1998, L.L.C. By:/s/ KACA B. ENQUIST ------------------------------ Name: KACA B. ENQUIST Title: Vice President -----END PRIVACY-ENHANCED MESSAGE-----