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Filed Pursuant to Rule 424(b)(3)
File Number 333-59521
PROSPECTUS
$80,000,000
CLEARVIEW CINEMA GROUP, INC.
OFFER TO EXCHANGE ITS
10 7/8% SENIOR NOTES DUE 2008
THAT HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED,
FOR UP TO $80,000,000 PRINCIPAL AMOUNT OF ITS
OUTSTANDING 10 7/8% SENIOR NOTES DUE 2008
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THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON DECEMBER 22,
1998 UNLESS EXTENDED.
Clearview Cinema Group, Inc., a Delaware corporation ("Clearview" or the
"Company"), hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus and the accompanying Letter of Transmittal (which
together constitute the "Exchange Offer"), to exchange its 10 7/8% Senior Notes
due 2008 (the "New Notes") that have been registered under the Securities Act of
1933, as amended (the "Securities Act"), pursuant to a Registration Statement
(as defined) of which this Prospectus constitutes a part, for up to $80,000,000
aggregate principal amount of its outstanding 10 7/8% Senior Notes due 2008 (the
"Old Notes"), of which $80,000,000 aggregate principal amount is outstanding as
of the date hereof.
The New Notes will evidence the same debt as the Old Notes and will be
issued under and be entitled to the same benefits under the Indenture (as
defined) as the Old Notes. In addition, the New Notes and the Old Notes will be
treated as one series of securities under the Indenture. The terms of the New
Notes are identical in all material respects to the terms of the Old Notes for
which they may be exchanged pursuant to this offer, except for certain transfer
restrictions, registration rights and terms providing for an increase in the
interest rate on the Old Notes under certain circumstances relating to the
registration rights. The New Notes and the Old Notes are collectively referred
to herein as the "Notes." See "Description of Notes."
On October 29, 1998, the Company commenced a solicitation (the "Consent
Solicitation") of consents ("Consents") to approve certain proposed amendments
(the "Proposed Amendments") to the Indenture under which the Notes were issued
and to execution of a supplemental indenture effecting such Proposed Amendments,
and also commenced an offer to purchase any and all of the Notes for cash upon
the terms and subject to the conditions set forth in the offer (the "Tender
Offer"). See "Prospectus Summary--Recent Developments." If valid and unrevoked
Consents are received from the Holders of a majority in principal amount of the
outstanding Notes, and if certain other conditions are satisfied, Holders should
be aware that the New Notes to be issued in the Exchange Offer will contain
terms as modified by the
Continued on next page
SEE "RISK FACTORS" BEGINNING ON PAGE 16 FOR A DISCUSSION OF CERTAIN FACTORS
THAT HOLDERS OF THE OLD NOTES SHOULD CONSIDER IN CONNECTION WITH THE EXCHANGE
OFFER.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is November 9, 1998.
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Proposed Amendments. See "Description of Notes--The Proposed Amendments" and
"Description of Notes--Indenture Comparison." If on December 10, 1998, the time
to submit Consents has expired but the Tender Offer has not expired, Holders who
have tendered Old Notes in the Tender Offer may participate in the Exchange
Offer by complying with the procedures for withdrawal of tendered Old Notes from
the Tender Offer as set forth in the Consent Solicitation and Tender Offer
materials and described herein under "The Exchange Offer--Procedures for
Tendering," and tendering such withdrawn Old Notes in the Exchange Offer.
Whether or not Holders have previously tendered Old Notes in the Tender Offer,
Holders may instruct the Exchange Agent in the accompanying Letter of
Transmittal to automatically tender New Notes issued in the Exchange Offer into
the Tender Offer after consummation of the Exchange Offer. The Exchange Agent
also is acting as the Depositary in the Consent Solicitation and Tender Offer.
The New Notes will mature on June 12, 2008. Interest on the New Notes will
be payable semiannually on June 1 and December 1 of each year, commencing June
1, 1999, at a rate of 10.875% per annum. The New Notes will be redeemable at the
option of the Company, in whole or in part, at any time on or after June 1,
2003, at the redemption prices set forth herein, plus accrued and unpaid
interest and Liquidated Damages (as defined), if any, thereon to the date of
redemption. In addition, at any time prior to June 1, 2001, the Company may
redeem up to 33% of the aggregate principal amount of the New Notes at a
redemption price of 110.875% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of
redemption, with the net cash proceeds of one or more public equity offerings or
Strategic Equity Investments (as defined); provided that at least $53.3 million
of the aggregate principal amount of the New Notes remains outstanding
immediately after the occurrence of each such redemption.
Upon the occurrence of a Change of Control (as defined), each holder of New
Notes will have the right to require the Company to purchase all or any part of
such holder's New Notes at a purchase price equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, to the date of purchase. See "Business--Recent Developments"
and "Description of Notes--Repurchase at the Option of Holders--Change of
Control."
The Notes represent general unsecured obligations of the Company and rank
pari passu in right of payment with all current and future senior indebtedness
of the Company. The New Notes will be effectively subordinated to all senior
secured indebtedness of the Company to the extent of such security, including
indebtedness under the New Credit Facility (as defined), which provides for up
to $15.0 million of revolving credit loans guaranteed by the Company's
subsidiaries and secured as described herein. As of June 30, 1998, the Company
had $80.0 million of indebtedness outstanding, all of which is represented by
the Notes. If the Proposed Amendments are adopted, the Company will be permitted
to incur additional indebtedness, subject to the limitations set forth in the
Proposed Amendments. See "Description of Notes--The Proposed Amendments." The
operations of the Company are conducted through its subsidiaries. The Notes are
unconditionally guaranteed, jointly and severally, by the Subsidiary Guarantors
(as defined). The Subsidiary Guarantees (as defined) are general, unsecured
obligations of the Subsidiary Guarantors and rank pari passu in right of payment
with all current and future senior indebtedness of the Subsidiary Guarantors. As
of June 30, 1998, the Subsidiary Guarantors had no indebtedness outstanding
other than the Subsidiary Guarantees of the Notes. See "Capitalization" and
"Description of New Credit Facility."
The New Notes are being offered hereunder in order to satisfy certain
obligations of the Company under the Registration Rights Agreement dated as of
June 12, 1998 (the "Registration Rights Agreement") among the Company, the
Subsidiary Guarantors and Lehman Brothers Inc., as the initial purchaser of the
Old Notes (the "Initial Purchaser").
The Company is making the Exchange Offer in reliance on the position of the
staff of the Securities and Exchange Commission (the "Commission") as set forth
in certain no-action letters addressed to other parties in other transactions.
However, the Company has not sought its own no-action letter, and there can be
no assurance that the staff of the Commission will make a similar determination
with respect to the Exchange Offer as in such other circumstances. Based upon
these interpretations by the staff of the Commission, the Company believes that
New Notes issued pursuant to the Exchange Offer in exchange for Old Notes may be
offered for resale, resold
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Continued from previous page
and otherwise transferred by a holder thereof other than (i) a broker-dealer who
purchased such Old Notes directly from the Company to resell pursuant to Rule
144A or any other available exemption under the Securities Act or (ii) a person
that is an "affiliate" (as defined in Rule 405 of the Securities Act) of the
Company without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such New Notes are acquired in
the ordinary course of such holder's business and that such holder is not
participating, and has no arrangement or understanding with any person to
participate, in the distribution of such New Notes. Holders of Old Notes
accepting the Exchange Offer will represent to the Company in the Letter of
Transmittal that such conditions have been met. Any holder who participates in
the Exchange Offer for the purpose of participating in a distribution of the New
Notes may not rely on the position of the staff of the Commission as set forth
in these no-action letters and would have to comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
secondary resale transaction. A secondary resale transaction in the United
States by a holder who is using the Exchange Offer to participate in the
distribution of New Notes must be covered by a registration statement containing
the selling securityholder information required by applicable regulations
promulgated under the Securities Act.
Each broker-dealer (other than an "affiliate" of the Company) that receives
New Notes for its own account pursuant to the Exchange Offer must acknowledge
that it acquired the Old Notes as a result of market-making activities or other
trading activities and will deliver a prospectus in connection with any resale
of such New Notes. The Letter of Transmittal states that by so acknowledging and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act. This Prospectus,
as it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of New Notes received in exchange for
Old Notes where such Old Notes were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, for a period of 90 days after the date of this Prospectus, it will make
this Prospectus available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution." Any broker-dealer who is an affiliate
of the Company may not rely on such no-action letters and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any secondary resale transaction. See "The Exchange
Offer--Purpose of the Exchange Offer."
The New Notes are new securities for which there is currently no market.
Although the New Notes are expected to be eligible for trading in the Private
Offerings, Resale and Trading through Automated Linkages ("PORTAL") Market of
the Nasdaq Stock Market, Inc., the Company presently does not intend to apply
for listing of the New Notes on any securities exchange or for quotation through
the National Association of Securities Dealers Automated Quotation System
("NASDAQ"). The Company has been advised by the Initial Purchaser that,
following completion of the Exchange Offer, it currently intends to make a
market in the New Notes; however, the Initial Purchaser is not obligated to do
so, and any market-making activities with respect to the New Notes may be
discontinued at any time without notice. There can be no assurance that an
active public market for the New Notes will develop.
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION. HOLDERS OF OLD NOTES ARE URGED TO READ THIS PROSPECTUS AND THE
RELATED LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING WHETHER TO TENDER THEIR
OLD NOTES PURSUANT TO THE EXCHANGE OFFER.
Any Old Notes not tendered and accepted in the Exchange Offer will remain
outstanding and will be entitled to all the rights and preferences and will be
subject to the limitations applicable thereto under the Indenture. Following
consummation of the Exchange Offer, the holders of Old Notes will continue to be
subject to the existing restrictions upon transfer thereof, and the Company will
have no obligation to such holders (other than the Initial Purchaser) to provide
for the registration under the Securities Act of the Old Notes held by them,
except in limited circumstances. See "Description of Notes--Registration Rights;
Liquidated Damages." To the extent that Old Notes are tendered and accepted in
the Exchange Offer, a holder's ability to sell untendered Old Notes could be
adversely affected. It is not expected that an active market for the Old Notes
will develop while they are subject to restrictions on transfer. The Company
will accept for exchange any and all Old Notes that are
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validly tendered and not withdrawn on or prior to 5:00 p.m., New York City time,
on the date the Exchange Offer expires, which will be December 22, 1998 (the
"Expiration Date"), unless the Exchange Offer is extended by the Company in its
sole discretion (in which case the Expiration Date shall be the latest date and
time to which the Exchange Offer is extended.) Tenders of Old Notes may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration
Date, unless previously accepted for payment by the Company. The Exchange Offer
is not conditioned upon any minimum principal amount of Old Notes being tendered
for exchange. However, the Exchange Offer is subject to certain conditions which
may be waived by the Company and to the terms and provisions of the Registration
Rights Agreement. Old Notes may be tendered only in denominations of $1,000 and
integral multiples thereof. The Company has agreed to pay the expenses of the
Exchange Offer. See "The Exchange Offer--Fees and Expenses."
This Prospectus, together with the Letter of Transmittal, is being sent to
all registered holders of Old Notes as of October 28, 1998.
The Company will not receive any proceeds from the Exchange Offer. No
dealer-manager is being used in connection with the Exchange Offer. See "Use of
Proceeds" and "Plan of Distribution."
UNTIL FEBRUARY 7, 1999, ALL BROKER-DEALERS EFFECTING TRANSACTIONS IN THE
NEW NOTES, WHETHER OR NOT PARTICIPATING IN THE EXCHANGE OFFER, MAY BE REQUIRED
TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE OBLIGATIONS OF
BROKER-DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH
RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
No broker-dealer, salesperson or other individual has been authorized to
give any information or to make any representation in connection with the
Exchange Offer other than those contained in this Prospectus and the Letter of
Transmittal and, if given or made, such information or representation must not
be relied upon as having been authorized by the Company. The delivery of this
Prospectus shall not, under any circumstances, create any implication that the
information herein is correct at any time subsequent to its date.
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE COMPANY ACCEPT
TENDERS FOR EXCHANGE FROM, HOLDERS OF OLD NOTES IN ANY JURISDICTION IN WHICH THE
EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE
SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION.
This Prospectus includes "forward-looking statements" within the meaning of
Section 27A of the Securities Act and Section 21E of the Securities and Exchange
Act of 1934, as amended (the "Exchange Act"). All statements other than
statements of historical facts included in this Prospectus, including, without
limitation, the statements under "Prospectus Summary," "Management's Discussion
and Analysis of Financial Condition and Results of Operations," and "Business"
and located elsewhere herein regarding industry prospects, the Company's
prospects and the Company's financial position are forward-looking statements.
Although the Company believes that the expectations reflected in such
forward-looking statements are reasonable, it can give no assurance that such
expectations will prove to have been correct. Important factors that could cause
actual results to differ materially from the Company's expectations ("Cautionary
Statements") are disclosed in this Prospectus, including, without limitation, in
conjunction with the forward-looking statements included in this Prospectus
under "Risk Factors." All subsequent written and oral forward-looking statements
attributable to the Company or persons acting on its behalf are expressly
qualified in their entirety by the Cautionary Statements.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the United
States Securities Exchange Act of 1934 (the "Exchange Act") and in accordance
therewith files periodic reports, proxy solicitation materials and other
information with the Commission. Such reports, proxy solicitation materials and
other information can be inspected and copied at the public reference facilities
maintained by the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Commission's Regional Offices located at Seven
World Trade Center, Suite 1300, New York, New York 10048 and Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of
such materials can be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
The Commission maintains a Web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission. Such reports, proxy and information statements and other
information may be found on the Commission's site address, http://www.sec.gov.
The Company's common stock, $0.01 par value per share (the "Common Stock") is
listed on the American Stock Exchange (the "AMEX"). Such reports, proxy
solicitation materials and other information can also be inspected and copied at
the offices of the AMEX at 86 Trinity Place, New York, New York 10006.
The Company has filed with the Commission a Registration Statement on Form
S-4 under the Securities Act (the "Registration Statement") with respect to the
New Notes offered hereby. This Prospectus, which constitutes part of the
Registration Statement, does not contain all of the information set forth in the
Registration Statement, certain portions of which are omitted in accordance with
the rules and regulations of the Commission. Such additional information may be
obtained from the Commission's principal office in Washington, D.C. or their Web
site as set forth above. For further information, reference is hereby made to
the Registration Statement, including the exhibits filed as a part thereof or
otherwise incorporated herein. Statements made in this Prospectus as to the
contents of any documents referred to are necessarily summaries of such
documents and are not complete, and in each instance reference is made to such
documents for a more complete description and each such statement is qualified
in its entirety by such reference.
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PROSPECTUS SUMMARY
The following is a summary of certain information contained elsewhere in
this Prospectus. Reference is made to, and this summary is qualified in its
entirety by, the more detailed information and financial statements, including
the notes thereto, contained elsewhere in this Prospectus. As used in this
Prospectus, unless the context indicates otherwise, the terms the "Company" and
"Clearview" refer to Clearview Cinema Group, Inc. and its subsidiaries.
THE COMPANY
Clearview is a major regional first-run motion picture exhibitor that
operates primarily community-based multiplex theaters in affluent suburban
communities in the New York/New Jersey metropolitan area. Clearview offers a
broad mix of first run films with a particular focus on films designed to appeal
to sophisticated moviegoers and families with younger children residing in these
communities. As of September 30, 1998, the Company has 43 theaters with a total
of 203 screens. Through additions of screens to existing theaters and new
theater development, the Company also plans to add a total of 60 new screens by
May 31, 1999. Based on the number of screens currently operated, the Company
believes that it is one of the largest motion picture exhibitors in the New
York/New Jersey metropolitan region and the second largest in New Jersey, thus
enabling it to compete effectively with the major national theater circuits in
its markets. As of September 30, 1998, approximately 70.0% of the Company's
theaters were the sole exhibitors in their film zones, and approximately 16.0%
were the leading exhibitors in their film zones.
Clearview operates clean, comfortable, visually appealing and
service-oriented theaters predominantly located in affluent towns and
communities rather than in shopping malls or near highways. The Company believes
that, in many suburban communities in the Middle Atlantic and New England
states, theaters located in town or in community-based retail centers serve
audiences that prefer the convenience and familiarity of such theaters to the
larger out-of-town megaplex theaters that appear to be the focus of the major
theater circuits. Many of the Company's target markets are in densely populated,
affluent areas consisting of numerous small municipalities with local business
districts that are well suited to the Company's strategy of operating
community-based theaters. In many of these areas it can be difficult for theater
circuit operators to build or expand theaters into large multiplexes or
megaplexes due to a lack of affordable real estate, zoning laws and community
resistance.
Founded in 1994 with four theaters and eight screens, the Company has grown
through both acquisitions and theater development. Since that time, the Company
has completed 16 acquisitions, representing 34 theaters with a total of 170
screens, and entered into agreements to operate four theaters with 13 screens.
Management has successfully integrated these theaters into its operations by
reducing operating expenses and implementing new operating standards, management
controls and information systems. The Company has also upgraded the seating,
improved the sound and projection equipment, refurbished the interior
furnishings and broadened the concession offerings in most locations.
Additionally, since early 1995 the Company has added seven screens to existing
theaters and constructed a new five-screen theater in an existing building,
resulting in an aggregate of 43 theaters with a total of 203 screens as of
September 30, 1998. See "Business--Existing Theaters."
During the past ten years, overall movie theater attendance in the United
States has grown from 1,089 million in 1987 to 1,388 million in 1997. Admission
revenue increased from a total of approximately $4.3 billion in 1987 to
approximately $6.4 billion in 1997, or a compound annual growth rate of 4.1%.
The theatrical exhibition industry is fragmented. Although the eleven largest
theater circuits operated approximately 60% of the screens at May 1, 1997, 268
of the approximately 478 remaining exhibitors operated four or fewer screens.
There is also a strong trend toward consolidation in the motion picture
exhibition industry. Two recent major transactions combined Cineplex Odeon
Corporation ("Cineplex") (approximately 1,729 screens) with Sony/Loews Theater
Exhibition Group ("Sony/Loews") (approximately 1,020 screens), and combined Act
III Cinemas ("Act III") (approximately 832 screens) with Regal Cinemas, Inc.
("Regal") (approximately 2,337 screens). The Company believes that it has an
opportunity to acquire additional theaters as the major circuits seek to divest
theaters which do not fit into their strategic plans and independent theater
operators find it increasingly difficult to compete with larger circuits.
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RECENT DEVELOPMENTS
On August 13, 1998, Clearview announced that it had entered into an
Agreement and Plan of Merger, dated August 12, 1998 (the "Merger Agreement"),
among Cablevision Systems Corporation, a Delaware corporation ("Cablevision"),
CCG Holdings Inc., a Delaware corporation and a wholly-owned subsidiary of
Cablevision ("CCG Holdings") and the Company, upon the terms and subject to the
conditions of which the Company will be merged (the "Merger") with CCG Holdings,
and the surviving corporation in the Merger (the "Surviving Corporation") will
be a wholly-owned subsidiary of Cablevision. Subject to certain allocation and
proration provisions contained in the Merger Agreement, the Merger Agreement
provides, among other things, that at the Effective Time (as defined in the
Merger Agreement), (i) each outstanding share of Clearview common stock, $.01
par value per share (the "Common Stock"), will be converted into the right to
receive, at the option of the holder thereof, (A) $24.25 per share in cash or
(B) that number of shares of Class A Common Stock, par value $.01 per share, of
Cablevision ("Cablevision Class A Common Stock"), equal to the amount derived by
dividing $24.25 by the average of the average daily per share high and low sales
prices of Cablevision Class A Common Stock as reported on the American Stock
Exchange, Inc. on each of the ten trading days ending on and including the third
trading day prior to the closing of the Merger (the "Share Conversion Number");
provided, however, that if such average price for Cablevision Class A Common
Stock is less than $36.00, no holders of Clearview Common Stock will have the
right to elect to receive Cablevision Class A Common Stock; (ii) each
outstanding share of Class A Preferred Stock, $.01 par value per share ("Class A
Preferred Stock") of Clearview will be converted into the right to receive, at
the option of the holder thereof, the cash consideration or the stock
consideration described above, as if the outstanding shares of Class A Preferred
Stock had been converted into shares of Common Stock immediately prior to the
Effective Time; provided, that if the average price for Cablevision Class A
Common Stock described above is less than $36.00, no holders of Clearview Class
A Preferred Stock will have the right to elect to receive Cablevision Class A
Common Stock; and (iii) each outstanding share of Class C Preferred Stock, $.01
par value per share of Clearview ("Class C Preferred Stock", and together with
the Class A Preferred Stock, "Preferred Stock" and, together with the Common
Stock, the "Company Securities") will be converted into the right to receive, at
the option of the holder thereof, (A) the amount in cash equal to $24.25 per
share multiplied by the number of shares of Common Stock issuable upon
conversion of a share of Class C Preferred Stock based on an exchange ratio of
51 shares of Common Stock per share of Class C Preferred Stock (the "Class C
Conversion Number") or (B) that number of shares of Cablevision Class A Common
Stock equal to the amount derived by multiplying the Class C Conversion Number
and the Share Conversion Number; provided, that if the average price for
Cablevision Class A Common Stock described above is less than $36.00, no holders
of Class C Preferred Stock will have the right to elect to receive Cablevision
Class A Common Stock.
Cablevision will account for the Merger using the purchase method of
accounting in accordance with the provisions of Accounting Principles Board
Opinion No. 16, "Business Combinations." Accordingly, Cablevision will record at
its cost the acquired assets less liabilities assumed, with the excess of such
cost over the estimated fair value of such net assets reflected as goodwill.
Additionally, certain costs directly related to the acquisition will be
reflected as additional purchase price in excess of the net assets acquired.
Cablevision has not yet determined whether the new basis of the net assets of
Clearview will be recorded on Clearview's separate financial statements. Should
Cablevision record such amounts on such separate financial statements, the
increase in net assets would result principally in the recording of goodwill,
which would be amortized over future periods.
Contemporaneously with the execution and delivery of the Merger Agreement,
and as a condition and inducement to Cablevision's and CCG Holdings' willingness
to enter into the Merger Agreement, certain holders (the "Selling Stockholders")
of Company Securities and warrants to purchase shares of Common Stock
("Warrants" and together with Company Securities, "Securities"), holding shares
representing 56.3% of the total number of votes entitled to be cast by the
holders of shares of Clearview Securities at a special meeting of the
stockholders of the Company held to consider the Merger (the "Special Meeting"),
entered into an agreement (the "Stockholders Agreement") with Cablevision
pursuant to which such Selling Stockholders have agreed, among other things, to
vote in favor of adoption of the Merger Agreement and to deliver an irrevocable
proxy to that effect to Cablevision at its request.
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The execution and delivery of the Stockholders Agreement constituted a
Change in Control under the Indenture pursuant to which the Notes were issued.
The Indenture provides that upon the occurrence of a Change of Control each
holder of the Notes has the right to require the Company to purchase all or any
part (equal to $1,000 or an integral multiple thereof) of such holder's Notes at
an offer price in cash equal to 101% of the aggregate principal amount thereon
plus accrued and unpaid interest and Liquidated Damages (as defined in the
Indenture) thereon, if any, to the date of purchase. Pursuant to the Merger
Agreement, Cablevision had agreed with the Company, subject to certain
conditions, to purchase any Notes required to be purchased by the Company. On
August 19, 1998, the Company mailed a Notice of Change of Control to all holders
of the Notes, informing such holders of their right to require the Company to
purchase the Notes. The change of control offer expired September 17, 1998, and
no holders requested that the Company purchase their Notes. If the Merger is
completed, a Change of Control will occur under the Indenture and each Holder of
the Notes will have the right to require the Company to purchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes at an
offer price in cash equal to 101% of the aggregate principal amount thereon plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the date
of purchase.
On October 29, 1998, the Company commenced the Consent Solicitation to the
Proposed Amendments and to the execution of a supplemental indenture effecting
such Proposed Amendments (the "Supplemental Indenture") to, among other things,
modify or eliminate certain restrictive covenants contained in the Indenture and
pursuant to which the Company will pay a consent fee (the "Consent Payment")
equal to $20 for each $1,000 of principal amount of Notes in respect of which a
Consent is validly delivered prior to November 9, 1998, unless extended (the
"Consent Time"). On October 29, 1998, the Company also commenced the Tender
Offer to purchase any and all of the Notes for cash upon the terms and subject
to the conditions set forth in the Tender Offer. Any tender of Notes pursuant to
the Tender Offer prior to the Consent Time will also constitute the delivery of
a Consent with respect to such Notes. For Notes tendered prior to the Consent
Time, the purchase price will be $1,100 for each $1,000 of principal amount of
the Notes, plus accrued and unpaid interest to but excluding the settlement date
(the "Total Consideration"), which includes the Consent Payment. For Notes
tendered after the Consent Time, no Consent Payment will be made and the
purchase price will be $1,080 for each principal amount of the Notes, plus
accrued and unpaid interest to but excluding the settlement date (the "Tender
Purchase Price"). The Consent Solicitation and Tender Offer are being made in
connection with the proposed Merger involving Cablevision. The Consent
Solicitation, the Company's obligation to pay the Consent Payments, the Proposed
Amendments, the Tender Offer and the Company's obligation to pay the Total
Consideration and the Tender Purchase Price are conditioned on, among other
things, (a) the satisfaction or waiver of all the conditions to the Merger
contained in the Merger Agreement (the "Merger Conditions") and (b) the receipt
by The Bank of New York as depositary (the "Depositary") of valid and unrevoked
Consents from record Holders of a majority in principal amount of the
outstanding Notes (the "Minimum Consent Condition"). The Merger, however, is not
conditioned on the successful completion of the Consent Solicitation or the
Tender Offer or the adoption of the Proposed Amendments. The Merger may be
consummated without the adoption of the Proposed Amendments. The Tender Offer
will expire at 12:00 Noon, New York City Time on December 1, 1998, unless
extended or earlier terminated (as it may be extended, the "Tender Offer
Expiration Time").
Any Consent delivered may be revoked, and any Notes tendered pursuant to
the Tender Offer may be withdrawn, at any time prior to the Consent Time. A
valid withdrawal of tendered Notes prior to the Consent Time will constitute the
concurrent valid revocation of such record Holder's related Consent. In
addition, if on December 10, 1998, the Consent Time shall have occurred and the
Tender Offer Expiration Time shall not have occurred, Holders who have tendered
Old Notes in the Tender Offer may participate in the Exchange Offer by complying
with the procedures for withdrawal of tendered Old Notes from the Tender Offer
set forth in the Consent Solicitation and Tender Offer materials and described
herein under "The Exchange Offer -- Procedures for Tendering," and tendering
such withdrawn Old Notes in the Exchange Offer. Whether or not Holders have
previously tendered Old Notes in the Tender Offer, Holders may instruct the
Exchange Agent in the accompanying Letter of Transmittal to automatically tender
New Notes issued in the Exchange Offer into the Tender Offer after consummation
of the Exchange Offer. The Exchange Agent also is acting as the Depositary in
the Consent Solicitation and Tender Offer.
If the Proposed Amendments become effective, the Proposed Amendments will
be binding on all Holders that did not tender Notes in the Tender Offer,
including Holders of New Notes as well as Old Notes. Holders who
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do not tender their Notes in the Tender Offer will hold their Notes under the
Indenture as modified by the Supplemental Indenture and such Holders will no
longer be entitled to the benefits of the covenants modified or eliminated by
the Proposed Amendments. The modification or elimination of restrictive
covenants and other provisions pursuant to the Proposed Amendments may permit
the Company to take actions that could increase the credit risks with respect to
the Company faced by Holders not tendering into the Tender Offer, adversely
affect the market price of the Notes that remain outstanding or otherwise be
adverse to the interest of Holders not tendering into the Tender Offer. For a
description of the Proposed Amendments, see "Description of Notes--The Proposed
Amendments" and "Description of Notes--Indenture Comparison." The Proposed
Amendments may be revised, modified, amended or supplemented after the date
hereof, and if required at that time, a supplement to this Prospectus will be
delivered.
OPERATING STRATEGY
The Company's objective is to expand its position as a major regional
first-run motion picture exhibitor operating multiplex theaters based on strict
operating controls, principally at in-town locations or in retail centers that
are the focus of community life. The following are the key elements of the
Company's operating strategy:
Maintain and Expand Strong Regional Focus. Based on the number of screens
currently operated, the Company believes that it is one of the largest motion
picture exhibitors in the New York/New Jersey metropolitan region and is the
second largest in New Jersey, thus enabling it to compete effectively with the
major national theater circuits in its markets. In addition, at September 30,
1998, based on the number of screens currently operated, the Company is the
leading motion picture exhibitor in such upscale suburban areas as Morris
County, New Jersey; Essex County, New Jersey; and the North Shore of Long
Island. The Company seeks to continue to acquire or develop theaters that are
close to the Company's existing theaters and to acquire or develop similar
clusters of theaters in other target markets in the Middle Atlantic and New
England states. Approximately 80% of the Company's theaters are within a 30 mile
radius and substantially all of the Company's theaters are within a 50 mile
radius. By developing clusters of theaters, the Company generally reduces its
operating expenses through the sharing of skilled personnel and management
oversight. Also, with a large number of screens in one area, the Company can
operate separate theaters as if they were a single larger multiplex, thereby
enabling the Company to offer a wide selection of films, play successful films
longer and play films with very strong demand on a number of screens at one
time.
Dominate Film Zones. The Company seeks to operate theaters that will be the
sole or leading exhibitors in their geographic film licensing zones. A
geographic film licensing zone or "film zone" is a geographic area (typically
having a three to five mile radius in suburban markets) customarily recognized
by film distributors, in which a film is licensed for exhibition at only one
theater. As of September 30, 1998, approximately 70.0% of the Company's theaters
were the sole exhibitors in their film zones and approximately 16.0% were the
leading exhibitors in their film zones. Being the sole or leading exhibitor in a
film zone allows the Company to choose which films to exhibit from among the
various films licensed by the production companies. Management believes that
this flexibility in film selection, combined with management's experience and
expertise in selecting films for its target markets, is an important factor in
the Company's success.
Pursue Community-Based Niche Strategy. Clearview operates clean,
comfortable, visually appealing and service-oriented theaters in predominantly
affluent towns and communities rather than in shopping malls or near highways.
The Company believes that, in many suburban communities in the Middle Atlantic
and New England states, theaters located in town or in community-based retail
centers serve audiences that prefer the convenience and familiarity of such
theaters to the larger out-of-town megaplex theaters that appear to be the focus
of the major theater circuits. By concurrently showing first run commercial, art
and family-oriented films, the Company seeks to appeal to three main groups in
affluent suburban communities: baby boomers, older moviegoers and families with
younger children (10 years of age and younger). Because of its community-based
focus, Clearview can adjust its mix of films based on its sensitivity to the
tastes of the audiences in each community. Examples of successful releases at
Clearview theaters during the past twelve months include One True Thing, The
Governor, Titanic, As Good As It Gets, L.A. Confidential, Good Will Hunting, The
Apostle, Spanish Prisoner, Parent Trap, Mousehunt and Paulie. Also as part of
its community-based strategy, Clearview encourages community interaction and
involvement through regular participation in local fund-raising and charity
functions and through
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the hiring of local employees. Clearview believes that its community-based,
niche strategy is exemplified by the Company's motto, "We Bring Neighbors to the
Movies."
Maintain Cost Controls and Pursue Margin Enhancement. The Company seeks to
improve the profitability of its theaters by: (i) controlling theater-level
costs through centralized management; (ii) increasing efficiencies in concession
purchasing; (iii) reducing general and administrative expenses as a percentage
of revenues; and (iv) selecting films that appeal to Clearview's target
audiences but result in relatively low aggregate film rental costs as a
percentage of box office receipts. For the year ended December 31, 1997,
Clearview's box office margin (total box office revenues less film rental and
booking fees divided by total box office revenues) was 52.3% and its concession
margin (total concession revenues less cost of concession sales divided by total
concession revenues) was 83.8%. For the six months ended June 30, 1998,
Clearview's box office margin was 52.2% and its concession margin was 85.6%. The
Company believes that such percentages compared favorably with those of the five
largest motion picture exhibitors for the year ended December 31, 1997. The
Company believes that its regional focus, centralized management and emphasis on
sophisticated management information systems also create efficiencies and reduce
operating and general and administrative expenses as a percentage of revenues
for most of the theaters it acquires.
Operate Clean, Modern Theaters which Appeal to Customer Base. Clearview's
theaters generally are multiplexes located in towns and communities rather than
in shopping malls or near highways. Each of the Company's theaters has at least
one auditorium equipped with digital sound. Most locations are surrounded by
stores and restaurants, with available parking nearby. An important aspect of
Clearview's operating strategy is to provide a clean, comfortable and visually
appealing environment, which usually includes chandeliers, a decorative
fireplace and silk flower arrangements. When Clearview acquires a theater, it
typically refurbishes the existing seats and equips them with cup holders. In
addition, Clearview will generally redecorate the lobby, upgrade the concession
stand, provide a courtesy phone so that patrons can make free local telephone
calls and selectively add digital sound. The concession stand at each theater
offers snack and food items designed to appeal to the Company's generally
upscale customer base, such as fruit, bottled water, ice cream, cappuccino and
Swiss chocolates, as well as more traditional theater concession items such as
soft drinks, popcorn and an assortment of candy items. The Company has adopted a
set of procedures designed to keep its theaters clean and to ensure proper film
presentation.
GROWTH STRATEGY
The Company intends to increase revenues and cash flow by: (i) selectively
acquiring theaters in its target markets; (ii) adding screens to its existing
theaters; (iii) developing new theaters; and (iv) increasing other sources of
high margin revenues.
Selectively Acquire Theater Operations. The Company believes that one of
its strengths is its ability to identify available theaters at attractive prices
in appropriate locations. Clearview identifies many of its potential
acquisitions from the following two sources: (i) major circuits seeking to
divest theaters which do not fit into their strategic plans and (ii) independent
theater operators finding it increasingly difficult to compete with larger
circuits. In addition, Clearview believes it is able to acquire these theaters
at favorable prices as compared with prices for acquisitions of theaters that
fit more closely into the strategic plans of many of the larger theater
circuits. Potential acquisition candidates typically exhibit the following
characteristics: (i) location that strengthens Clearview's position in an
existing market or, when combined with other available acquisitions or new
theater development, provides a sufficient entree into a new market; (ii)
position as the sole or a leading exhibitor in a film zone; (iii) demographics
consistent with the Company's other locations; and (iv) availability at
favorable prices. The Company believes that it has improved the profitability of
its acquired theaters by aggressively implementing cost controls and other
measures to enhance margins.
Add Screens to Existing Theaters. The Company adds screens to existing
theaters when the Company believes that such additions will increase revenues
and cash flow and provide sufficient return on capital. By adding screens, the
Company is able to offer a larger selection of films that can attract more
patrons. Depending on the configuration of an existing theater, the Company may
add screens without necessarily increasing the overall dimensions of the theater
by dividing an individual auditorium into two or more smaller auditoriums.
Dividing an auditorium in this fashion can create additional revenue with only a
marginal increase in expense. In certain instances, the Company may also add
screens by expanding into adjacent space for the buildout of
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additional screens. The Company currently plans to add 20 screens to existing
theaters by March 31, 1999. See "Business--Theater Expansion and Development."
Develop New Theaters. The Company believes that it can successfully
identify locations in suitable communities that can be developed into theaters.
The Company currently plans to develop four theaters with a total of 40 screens
in the New York/New Jersey metropolitan area and the Philadelphia main line by
May 31, 1999. See "Business--Theater Expansion and Development." From time to
time, opportunities are presented to Clearview by real estate developers who
wish to enhance the value of their properties with the presence of a movie
theater. These opportunities often require limited direct investment by the
Company. In addition, due to its reputation for operating community-based
theaters, Clearview has been approached by local governments or community
development agencies of towns in the New York/New Jersey metropolitan area and
the Philadelphia main line that are interested in revitalizing parts of their
communities and believe that a movie theater could provide an impetus to such
redevelopment.
Increase Other Sources of Revenues. Clearview seeks to increase revenues
and cash flow from sources other than admissions and concessions, including
party, theater rental and on-screen advertising revenues. For the year ended
December 31, 1997, Clearview had other revenues of approximately $420,000, or
2.4% of total revenues, and for the six months ended June 30, 1998, had other
revenues of approximately $590,000, or 3.1% of total revenues. Clearview intends
to increase these high margin revenue sources in the future. For example, in May
1998 the Company initiated a children's party program designed to maximize use
of its theaters at times when they otherwise would not be operating. In
addition, the Company has recently renegotiated its advertising contracts to
increase the rates for on-screen advertising. See "Business--Other Sources of
Revenue."
RECENT ACQUISITIONS
Since its initial acquisition of four theaters and eight screens in
December 1994, Clearview has completed 16 acquisitions, representing 34 theaters
with an aggregate of 170 screens. See "Business--Existing Theaters." Listed
below is a summary of the Company's acquisitions during 1997 and 1998.
1997 ACQUISITIONS
UA I Theaters. On September 12, 1997, the Company purchased from United
Artists Theater Circuits, Inc., for total consideration of approximately $8.7
million in cash, the Mamaroneck Playhouse in Mamaroneck, NY (4 screens), the
Bronxville Cinemas in Bronxville, NY (3 screens), the Larchmont Cinemas in
Larchmont, NY (1 screen), the Cinema 304 in New City, NY (2 screens) and the
Wayne Preakness Cinemas in Wayne, NJ (4 screens) (collectively, the "UA I
Theaters").
Nelson Ferman Theaters. On November 21, 1997, the Company purchased from an
independent theater operator, for total consideration of $18.5 million paid in a
combination of cash, subordinated notes of the Company and shares of Common
Stock, the Parsippany Cinema 12 in Parsippany, NJ (12 screens) and the
Succasunna Cinema 10 in Succasunna, NJ (10 screens) (together, the "Nelson
Ferman Theaters").
CJM Theaters. On December 12, 1997, the Company purchased from an
independent theater operator, for total consideration of $8.7 million paid in a
combination of cash, shares of the Company's Class B Nonvoting Cumulative
Redeemable Preferred Stock, $.01 par value (the "Class B Preferred Stock"), and
shares of Common Stock, the Bellevue Theaters in Upper Montclair, NJ (4
screens), the Kin Mall Cinemas in Kinnelon, NJ (8 screens), the Cinema 23 in
Cedar Grove, NJ (5 screens) and the Middlebrook Galleria Cinema in Middlebrook,
NJ (10 screens) (collectively, the "CJM Theaters").
Other 1997 Acquisitions. Also during 1997, the Company acquired for an
aggregate of approximately $2.0 million in cash, the Roslyn Cinemas in Roslyn,
NY (3 screens), the Edison Cinemas in Edison, NJ (8 screens) and the Woodbridge
Cinemas in Woodbridge, NJ (5 screens) (collectively, the "Other 1997
Acquisitions"). The acquisitions of the UA I Theaters, the Nelson Ferman
Theaters and the CJM Theaters, together with the Other 1997 Acquisitions, are
hereinafter referred to as the "1997 Acquisitions."
1998 ACQUISITIONS
During the six months ended June 30, 1998, Clearview has purchased for an
aggregate of approximately $15.3 million, paid in a combination of cash and
shares of Common Stock, the Clairidge Cinemas in Montclair, NJ (6 screens), the
Manhasset Cinemas in North Hempstead, NY (3 screens), the Babylon Cinemas in
Babylon, NY (3 screens), the Cobble Hill Cinemas in Brooklyn, NY (5 screens)
(the "Cobble Hill Acquisition"), the
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Headquarters 10 Cinemas in Morristown, NJ (10 screens) (the "AMC Acquisition"),
the Great Neck Squire Cinemas in Great Neck, NY (7 screens), and the Franklin
Square Cinemas in Franklin Square, NY (6 screens) (together, the "Great
Neck/Franklin Square Acquisition"); and, subsequent to June 30, 1998, Clearview
has purchased for an aggregate of $2.2 million in cash, the Colony Cinemas in
Livingston, NJ (3 screens) the West Milford Cinemas in West Milford, NJ (4
screens) and the Bala Theater in Bala Cynwyd, PA (3 screens) (the "Bala Cynwyd
Acquisition") (together, the "Subsequent Acquisitions" and collectively, the
"1998 Acquisitions").
Clearview has financed all of its completed acquisitions through a
combination of borrowings under the Old Credit Facility, the issuance of
subordinated promissory notes, Class B Preferred Stock and shares of Common
Stock, and the net proceeds from its initial public offering of Common Stock in
August 1997 (the "Common Stock Offering"), its sale of Class C Preferred Stock
in April 1998 and its offering of the Old Notes in June 1998 (the "Notes
Offering"). See Clearview's consolidated financial statements and the notes
thereto included elsewhere in this Prospectus and "Management's Discussion and
Analysis of Financial Condition and Results of Operations of Clearview."
RECENT FINANCING TRANSACTIONS
In August 1997, Clearview completed the Common Stock Offering for $7.1
million in aggregate net proceeds. In late 1997 and early 1998, Clearview
amended its Credit Agreement with The Provident Bank (as amended, the "Old
Credit Facility") to, among other things, increase availability under the term
loans from $11.2 million to $40.8 million, substantially all of which was used
to fund in part the acquisition of additional theaters. In April 1998, Clearview
completed the sale of Class C Preferred Stock to Marshall Capital Management,
Inc. for aggregate consideration of approximately $3.0 million. See
"Capitalization" and "Description of Capital Stock--Class C Preferred Stock."
Additionally, in June 1998, Clearview completed the Notes Offering for
$80,000,000 in gross proceeds before fees and expenses. Concurrent with the
closing of the Notes Offering, Clearview repaid the Old Credit Facility and
entered into the New Credit Facility with The Provident Bank, which provides for
a secured revolving line of credit in the aggregate principal amount of $15.0
million. See "Description of New Credit Facility."
References in this Prospectus to the "Transactions" are to (i) the Notes
Offering and the application of the net proceeds therefrom (including the AMC
Acquisition, the Great Neck/Franklin Square Acquisition and the Subsequent
Acquisitions); (ii) the issuance of the Class C Preferred Stock; and (iii) the
issuance of shares of Common Stock in connection with the acquisition of the
leasehold interest and related construction permit for a new theater in
Mansfield Township, New Jersey (the "Mansfield Theater"). Prior to June 30,
1998, the net proceeds from the sale of the Notes have been used to repay the
amount outstanding under the Old Credit Facility of $40.2 million along with a
prepayment premium of approximately $400,000 and accrued interest of
approximately $470,000; to repay the outstanding indebtedness of approximately
$6.3 million; to repurchase 600 shares of the outstanding Class B Preferred
Stock for approximately $600,000; to pay the issuance costs on the New Credit
Facility of approximately $155,000; to fund the aggregate purchase price of $9.3
million for the AMC Acquisition and the Great Neck/Franklin Square Acquisition;
to purchase the fee real estate interest in a property Clearview had been
operating under lease for approximately $700,000 (the "Rosyln Purchase"); and to
pay approximately $3.7 million in fees and expenses of the Notes Offering.
Subsequent to June 30, 1998, the net proceeds from the sale of the Notes have
been used to fund the aggregate purchase price for the Subsequent Acquisitions
of approximately $2.2 million; a $750,000 escrow account in connection with the
acquisition of the CJM Theaters; and the purchase for $1,150,000 of the fee real
estate interest of one theater Clearview had been operating under an agreement
with the owner (the "Millburn Purchase") (together, the "Post June 30
Transactions"). The remaining net proceeds will be used to fund the $1,115,000
to purchase the operations and leasehold of three theaters Clearview had been
operating under an agreement with the owner (the "Long Island Purchase")
(together with the Post June 30 Transactions, the "Subsequent Transactions");
and for working capital, capital expenditures and general corporate purposes,
including the buildout of additional screens at existing theaters, new theater
developments and possible additional theater acquisitions. See
"Business--Theater Expansion and Development."
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THE EXCHANGE OFFER
The Exchange Offer............ The Company is offering to exchange pursuant to
the Exchange Offer an aggregate principal
amount of up to $80,000,000 of New Notes for a
like principal amount of Old Notes. The Company
will issue the New Notes on or promptly after
the Exchange Date. As of the date of this
Prospectus, $80,000,000 aggregate principal
amount of the Old Notes is outstanding. The
terms of the New Notes are identical in all
material respects to the terms of the Old Notes
for which they may be exchanged pursuant to
this offer (as the same may be amended pursuant
to the Proposed Amendments), except for certain
transfer restrictions, registration rights and
terms providing for an increase in the interest
rate on the Old Notes under certain
circumstances relating to the registration
rights. The New Notes will evidence the same
debt as the Old Notes and will be issued under
and be entitled to the same benefits under the
Indenture as the Old Notes. The issuance of the
New Notes and the Exchange Offer are intended
to satisfy certain obligations of the Company
under the Registration Rights Agreement. See
"The Exchange Offer" and "Description of
Notes."
Expiration Date............... The Exchange Offer will expire at 5:00 p.m.,
New York City time on December 22, 1998, unless
extended by the Company in its sole discretion
(in which case the Expiration Date will be the
latest date and time to which the Exchange
Offer is extended). See "The Exchange
Offer--Expiration Date; Extensions;
Amendments."
Exchange Date................. The date of acceptance for exchange of the Old
Notes and the consummation of the Exchange
Offer will be the first business day following
the Expiration Date unless extended. See "The
Exchange Offer--Terms of the Exchange."
Conditions of the Exchange
Offer......................... The Company's obligation to consummate the
Exchange Offer will be subject to certain
conditions. See "The Exchange Offer--Conditions
to the Exchange Offer." The Company reserves
the right to terminate or amend the Exchange
Offer at any time prior to the Expiration Date.
Withdrawal Rights............. Tenders may be withdrawn at any time prior to
5:00 p.m., New York City time, on the
Expiration Date; otherwise, all tenders will be
irrevocable. See "The Exchange
Offer--Withdrawal of Tenders."
Procedures For Tendering Old
Notes......................... See "The Exchange Offer--Procedures for
Tendering."
U.S. Federal Income Tax
Consequences.................. The exchange of Old Notes for New Notes
pursuant to the Exchange Offer will not result
in any income, gain or loss to holders who
participate in the Exchange Offer or to the
Company for U.S. federal income tax purposes.
See "Certain United States Federal Income Tax
Consequences."
Resales of New Notes.......... The Company is making the Exchange Offer in
reliance on the position of the staff of the
Commission as set forth in certain no-action
letters addressed to other parties in other
transactions. However, the Company has not
sought its own no-action letter, and there can
be no assurance that the staff of the
Commission would make a similar determination
with respect to the Exchange Offer as in such
other circumstances. Based on these
interpretations by the staff of the Commission,
the Company believes that New Notes issued
pursuant
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to the Exchange Offer in exchange for Old Notes
may be offered for resale, resold and otherwise
transferred by a holder thereof other than (i)
a broker-dealer who purchased such Old Notes
directly from the Company to resell pursuant to
Rule 144A or any other available exemption
under the Securities Act or (ii) a person that
is an "affiliate" (as defined in Rule 405 of
the Securities Act) of the Company without
compliance with the registration and prospectus
delivery provisions of the Securities Act,
provided that such New Notes are acquired in
the ordinary course of such holder's business
and that such holder is not participating, and
has no arrangement or understanding with any
persons to participate, in the distribution of
such New Notes. Holders of Old Notes accepting
the Exchange Offer will represent to the
Company in the Letter of Transmittal that such
conditions have been met. Any holder who
participates in the Exchange Offer for the
purpose of participating in a distribution of
the New Notes may not rely on the position of
the staff of the Commission as set forth in
these no-action letters and would have to
comply with the registration and prospectus
delivery requirements of the Securities Act in
connection with any secondary resale
transaction. A secondary resale transaction in
the United States by a holder who is using the
Exchange Offer to participate in the
distribution of New Notes must be covered by a
registration statement containing the selling
securityholder information required by
applicable regulations promulgated under the
Securities Act. Each broker-dealer (other than
an "affiliate" of the Company) that receives
New Notes for its own account pursuant to the
Exchange Offer must acknowledge that it
acquired the Old Notes as the result of
market-making activities or other trading
activities and will deliver a prospectus in
connection with any resale of such New Notes.
The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of
the Securities Act. This Prospectus, as it may
be amended or supplemented from time to time,
may be used by a broker-dealer in connection
with resales of New Notes received in exchange
for Old Notes where such Old Notes were
acquired by such broker-dealer as a result of
market-making activities or other trading
activities. In addition, pursuant to Section
4(3) under the Securities Act, until February
7, 1999, all dealers effecting transactions in
the New Notes, whether or not participating in
the Exchange Offer, may be required to deliver
a Prospectus. The Company has agreed that, for
a period of 90 days after the date of this
Prospectus, it will make this Prospectus
available to any broker-dealer for use in
connection with any such resale. See "Plan of
Distribution." Any broker-dealer who is an
affiliate of the Company may not rely on such
no-action letters and must comply with the
registration and prospectus delivery
requirements of the Securities Act in
connection with any secondary resale
transaction. See "The Exchange Offer--Purpose
of the Exchange Offer."
Consequences of Failure to
Tender Old Notes.............. Holders of Old Notes who do not tender their
Old Notes in the Exchange Offer or whose Old
Notes are not accepted for exchange will
continue to hold such Old Notes and will be
entitled to all the rights and preferences, and
will be subject to the limitations, applicable
thereto under the Indenture. If the Proposed
Amendments which
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are the subject of the Consent Solicitation
become effective, the Proposed Amendments will
be binding on all Holders that did not tender
Notes in the Tender Offer, including Holders of
New Notes as well as Old Notes. All untendered
and tendered but unaccepted Old Notes
(collectively, the "Remaining Old Notes") will
continue to bear legends restricting their
transfer. In general, the Old Notes may not be
offered or sold, unless registered under the
Securities Act, except pursuant to an exemption
from, or in a transaction not subject to, the
Securities Act and applicable state securities
laws. To the extent that the Exchange Offer is
effected, the trading market, if any, for
Remaining Old Notes could be adversely
affected. See "Risk Factors--Consequences of
Failure to Properly Tender Old Notes Pursuant
to the Exchange Offer" and "The Exchange
Offer--Terms of the Exchange."
Exchange Agent................ The exchange agent with respect to the Exchange
Offer is The Bank of New York (the "Exchange
Agent"). The address and telephone number of
the Exchange Agent are set forth in "The
Exchange Offer--Exchange Agent."
Use of Proceeds............... There will be no proceeds to the Company from
the exchange pursuant to the Exchange Offer.
See "Use of Proceeds."
Consent Solicitation and
Tender Offer.................. If on December 10, 1998, the Consent Time for
the Consent Solicitation shall have occurred
and the Tender Offer Expiration Time shall not
have occurred, Holders who have tendered Old
Notes in the Tender Offer may participate in
the Exchange Offer by complying with the
procedures for withdrawal of tendered Old Notes
from the Tender Offer set forth in the Consent
Solicitation and Tender Offer materials and
described herein under "The Exchange
Offer -- Procedures for Tendering," and
tendering such withdrawn Old Notes in the
Exchange Offer. Whether or not Holders have
previously tendered Old Notes in the Tender
Offer, Holders may instruct the Exchange Agent
in the accompanying Letter of Transmittal to
automatically tender New Notes issued in the
Exchange Offer into the Tender Offer after
consummation of the Exchange Offer. The
Exchange Agent also is acting as the Depositary
in the Consent Solicitation and Tender Offer.
THE NEW NOTES
Securities Offered............ $80,000,000 in aggregate principal amount of
10 7/8% Senior Notes due 2008 that have been
registered under the Securities Act.
Maturity Date................. June 12, 2008.
Interest Rate................. 10.875% per annum.
Interest Payment Dates........ Interest will accrue from the most recent date
to which interest has been paid or duly
provided for on the Old Notes surrendered in
exchange for such New Notes or, if no such
interest has been paid or duly provided for on
such Old Notes, from June 12, 1998, the date of
issuance of the Old Notes, and will be payable
semiannually on each June 1 and December 1,
commencing December 1, 1998.
Optional Redemption........... New Notes will be redeemable at the option of
the Company, in whole or in part, at any time
after June 1, 2003, at the redemption prices
set forth herein, plus accrued and unpaid
interest and Liquidated Damages, if any,
thereon to the date of redemption. In
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addition, at any time prior to June 1, 2001,
the Company may redeem up to 33% of the
aggregate principal amount of the Notes at a
redemption price of 110.875% of the principal
amount thereof, plus accrued and unpaid
interest and Liquidated Damages thereon, if
any, to the redemption date, with the net cash
proceeds from one or more public equity
offerings or Strategic Equity Investments;
provided that at least $53.3 million of the
aggregate principal amount of Notes remains
outstanding immediately after the occurrence of
each such redemption. See "Description of
Notes--Optional Redemption."
Ranking....................... The New Notes will be general unsecured
obligations of the Company, ranking pari passu
in right of payment with all future senior
indebtedness of the Company. The New Notes will
be effectively subordinated to all senior
secured indebtedness of the Company to the
extent of such security, including indebtedness
under the New Credit Facility, which provides
for up to $15.0 million of revolving credit
loans guaranteed by the Company's subsidiaries
and secured by substantially all of the assets
of the Company. As of June 30, 1998, the
Company had $80.0 million of indebtedness
outstanding, all of which was represented by
the Notes. The operations of the Company are
conducted through its subsidiaries. The New
Notes are unconditionally guaranteed, jointly
and severally, by the Subsidiary Guarantees.
The Subsidiary Guarantees are general,
unsecured obligations of the Subsidiary
Guarantors and rank pari passu in right of
payment with all current and future senior
indebtedness of the Subsidiary Guarantors. As
of June 30, 1998, the Subsidiary Guarantors had
no indebtedness outstanding other than the
Subsidiary Guarantees of the Notes. See
"Capitalization" and "Description of New Credit
Facility."
Subsidiary Guarantees......... The New Notes will be unconditionally
guaranteed, jointly and severally, by the
Subsidiary Guarantors. The Subsidiary
Guarantees will be general, unsecured
obligations of the Subsidiary Guarantors and
will rank pari passu in right of payment with
all current and future senior indebtedness of
the Subsidiary Guarantors. As of June 30, the
Subsidiary Guarantors had no indebtedness
outstanding other than the Subsidiary
Guarantees of the Notes. The Subsidiary
Guarantors will also guarantee, on a senior
secured basis, all borrowings by the Company
under the New Credit Facility. See "Description
of Notes--Subsidiary Guarantees."
Change of Control............. Upon the occurrence of a Change of Control,
each holder of New Notes will have the right to
require the Company to repurchase all or any
part of such holders' New Notes at a price
equal to 101% of the aggregate principal amount
thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of
purchase. See "Business--Recent Developments"
and "Description of Notes--Repurchase at the
Option of Holders--Change of Control."
Certain Covenants............. The Indenture pursuant to which the Old Notes
were issued and the New Notes will be issued
(the "Indenture") contains certain covenants
that, among other things, limit the ability of
the Company and its Restricted Subsidiaries (as
defined) to (i) incur additional indebtedness
and issue preferred stock, (ii) pay dividends
or make certain other restricted payments,
(iii) enter into transactions with affiliates,
(iv) make certain asset dispositions, (v) merge
or consolidate with, or
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transfer substantially all its assets to,
another person, (vi) encumber assets under
certain circumstances, (vii) restrict dividends
and other payments from Restricted Subsidiaries
and (viii) engage in certain business
activities. See "Description of Notes--Certain
Covenants." In addition, under certain
circumstances, the Company will be required to
offer to purchase the New Notes at a price
equal to 100% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the date of
purchase with the proceeds of certain Asset
Sales (as defined). See "Description of
Notes--Repurchase at the Option of
Holders--Asset Sales."
Proposed Amendments........... The Proposed Amendments will, among other
things, modify or eliminate certain so-called
"restrictive covenants" contained in the
Indenture. For a comparison of the Proposed
Amendments with the corresponding existing
provisions contained in the Indenture, see
"Description of Notes--Indenture Comparison."
The following summary and the indenture
comparison are qualified in their entirety by
reference to the Supplemental Indenture and the
Indenture, copies of which may be obtained from
MacKenzie Partners, Inc., 156 Fifth Avenue, New
York, New York 10010, telephone (212) 929-5500
(collect) or (800) 322-2885 (toll free), which
is acting as information agent in the Consent
Solicitation and Tender Offer (the "Information
Agent"). Capitalized terms used and not defined
in this section shall have the meaning ascribed
to them in the Indenture and the Supplemental
Indenture.
The Company is seeking approval of the Proposed
Amendments in order to give it greater
operating flexibility after the Merger, when it
will become a member of the Cablevision group.
The Proposed Amendments amend certain covenants
contained in the Indenture to more closely
resemble the equivalent covenants contained in
Cablevision's senior debt indentures.
Among other things, the Proposed Amendments
modify Section 4.9 (Incurrence of Indebtedness
and Issuance of Preferred Stock) to replace the
Fixed Charge Ratio test with a Cash Flow Ratio
test. Section 4.9 of the Indenture limits the
Company's ability to incur additional
Indebtedness or issue Disqualified Stock, if
after giving effect to such incurrence or
issuance, the Fixed Charge Coverage Ratio would
be less than 2.0 to 1.0. Under the proposed
Cash Flow Ratio test, the Company's ability to
incur Indebtedness or issue Disqualified Stock
would be limited if after giving effect to such
incurrence or issuance, the Cash Flow Ratio
would be greater than 9.0 to 1.0. The Proposed
Amendments also increase the level of Permitted
Debt that the Company may incur under Credit
Facilities from $15 million to $100 million.
Accordingly, under the Cash Flow Ratio test the
Company's ability to incur additional
Indebtedness would be increased.
Section 4.12 (Liens) limits the Company's
ability to secure Indebtedness with Liens on
its assets except for certain Permitted Liens.
Permitted Liens include Liens securing
Indebtedness under the Company's bank credit
facility that was permitted to be incurred
under the terms of the Indenture. As a result,
one of the effects arising out of the
replacement of the Fixed Charge Ratio test with
the Cash Flow Ratio test is to increase the
Company's ability to incur
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additional secured Indebtedness. Likewise, the
Proposed Amendments replace the Fixed Charge
Ratio test included in Section 4.13 (Sale and
Leaseback Transactions) with the Cash Flow
Ratio test described above, thereby increasing
the Company's ability to enter into Sale and
Leaseback transactions.
The Proposed Amendments also modify Section 4.7
(Restricted Payments) to (i) delete the
restriction on Restricted Investments and (ii)
amend the test permitting certain Restricted
Payments. The Proposed Amendments would add a
$25 million base amount and take into account
contributions of property in exchange for
equity in the Company in calculating the level
of Restricted Payments that would be permitted
to be made under the Indenture. In addition,
the existing Indenture limits the Company's
ability to make any Restricted Payments, if
after giving effect to such Restricted
Payments, the Company would be unable to incur
an additional $1.00 of Indebtedness under the
Fixed Charge Ratio test set forth in Section
4.9. Under the Proposed Amendments, this Fixed
Charge Ratio test would be replaced with the
Cash Flow Ratio test described above.
Accordingly, under the Proposed Amendments, the
Company's ability to make Restricted Payments
would be increased.
The Proposed Amendments will also: (a) delete
the definitions of "Consolidated Cash Flow";
"Fixed Charge Coverage Ratio"; "Fixed Charges";
"Permitted Investments"; and "Restricted
Investments"; (b) add definitions for
"Annualized Operating Cash Flow"; "Cash Flow
Ratio"; "Operating Cash Flow"; and "Theatre
Completions"; (c) amend Section 4.3 (Reports)
so that the requirement to provide a quarterly
Management's Discussion and Analysis of
Financial Condition and Results of Operation
only exists for so long as the Company remains
a reporting company under the Securities
Exchange Act of 1934, as amended; (d) amend
Section 4.11 (Transactions with Affiliates) to
eliminate the requirement to obtain the
approval of the Board of Directors and a
fairness opinion; (e) delete Section 4.15
(Business Activities); and (f) amend Section
5.1 (Merger, Consolidation or Sale of Assets)
to eliminate the Consolidated Net Worth and
Fixed Charge Ratio tests.
The Proposed Amendments will be set forth in a
Supplemental Indenture. The Supplemental
Indenture will be executed by the Company and
the Trustee as soon as practicable after
receipt of Consents from the Holders of a
majority of the principal amount of the
outstanding Notes; however, the Proposed
Amendments will not become operative unless and
until the Merger Conditions have been satisfied
or waived and certain other conditions are met.
In addition, the Proposed Amendments may be
revised, modified, amended or supplemented
after the date hereof, and if required at that
time, a supplement to this Prospectus will be
delivered.
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SUMMARY HISTORICAL AND PRO FORMA FINANCIAL DATA
The following summary financial data should be read in conjunction with
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the historical consolidated financial statements, including the
notes thereto, appearing elsewhere in this Prospectus. The Statement of
Operations Data for the year ended December 31, 1997 presented below are derived
from Clearview's consolidated financial statements audited by
PricewaterhouseCoopers LLP ("PricewaterhouseCoopers"), independent accountants,
whose report covering Clearview's consolidated financial statements as of
December 31, 1997 and for the year then ended and the related financial
statements are included elsewhere herein. The Statement of Operations Data for
the years ended December 31, 1996 and 1995 presented below are derived from
Clearview's consolidated financial statements audited by Wiss & Company, LLP,
independent accountants, whose report covering Clearview's consolidated
financial statements as of December 31, 1996 and 1995 and for the years then
ended and the related financial statements are included elsewhere herein. The
Statement of Operations Data for the periods ended as of June 30, 1998 and 1997
included in the following selected historical financial data have been derived
from financial statements of Clearview that have not been audited, but that, in
the opinion of the management of Clearview, reflect all adjustments necessary
for the fair presentation of such data for the interim periods. Operating Data
presented below have been derived from other records of the Company.
SIX MONTHS ENDED JUNE 30, YEAR ENDED DECEMBER 31,
---------------------------------- -----------------------------------------------
PRO FORMA PRO FORMA
1998(2) 1998 1997 1997(2) 1997(1) 1996(1) 1995
---------- ---------- -------- ---------- ---------- ---------- --------
(DOLLARS IN THOUSANDS, EXCEPT OPERATING DATA AND PER SHARE DATA)
STATEMENT OF OPERATIONS DATA:
Theatre revenues:
Box office............................... $ 16,343 $ 13,645 $ 4,709 $ 35,704 $ 12,926 $ 6,195 $ 1,759
Concession............................... 5,465 4,591 1,338 11,498 3,914 1,861 555
Other.................................... 613 590 141 1,175 422 142 31
-------- ---------- -------- -------- ---------- ---------- --------
Total.................................... 22,421 18,826 6,188 48,377 17,262 8,198 2,345
-------- ---------- -------- -------- ---------- ---------- --------
Operating expenses:
Film rental and booking fees............. 7,829 6,529 2,189 16,247 6,168 3,022 824
Cost of concession sales................. 795 660 221 1,881 635 279 99
Theatre operating expenses............... 8,807 7,140 2,449 18,161 6,591 3,298 1,078
General and administrative expenses...... 1,690 1,670 405 2,849 1,131 590 375
Depreciation and amortization............ 3,428 2,883 798 6,045 2,051 635 100
-------- ---------- -------- -------- ---------- ---------- --------
Total.................................... 22,549 18,882 6,062 45,183 16,576 7,824 2,476
-------- ---------- -------- -------- ---------- ---------- --------
Operating income (loss)................... (128) (56) 126 3,194 686 374 (131)
Interest expense.......................... 3,787 2,626 724 7,725 2,015 592 85
-------- ---------- -------- -------- ---------- ---------- --------
Loss before extraordinary item............ (3,915) (2,682) (598) (4,531) (1,329) (218) (216)
Extraordinary item--loss on redemption of
debt..................................... -- (2,030) -- -- -- -- --
-------- ---------- -------- -------- ---------- ---------- --------
Net loss.................................. $ (3,915) $ (4,712) $ (598) $ (4,531) $ (1,329) $ (218) $ (216)
======== ========== ======== ======== ========== ========== ========
Basic and diluted loss per share(3)....... $ (1.67) $ (2.71) $ (.33) $ (2.79) $ (1.03) $ (.29) $ (.36)
======== ========== ======== ======== ========== ========== ========
Ratio of earnings to fixed charges(4)..... -- -- -- -- -- --
Deficiency of earnings available to cover
fixed charges............................ $ (3,915) $ (2,683) $ (4,572) $ (1,370) $ (218) $ (216)
OPERATING DATA:
Box office margin(5)...................... 52.1% 52.2% 53.5% 54.5% 52.3% 51.2% 53.2%
Concession margin(6)...................... 85.5% 85.6% 83.5% 83.6% 83.8% 85.0% 82.2%
Number of theatres........................ 43 40 16 43 31 16 7
Number of screens......................... 203 193 64 203 148 60 21
Attendance................................ 2,487,000 892,000 2,322,063 1,167,409 315,406
Average ticket price(7)................... $ 5.49 $ 5.28 $ 5.57 $ 5.31 $ 5.58
Average concession revenue per
patron(8)................................ $ 1.85 $ 1.50 $ 1.69 $ 1.59 $ 1.76
CASH FLOWS FROM:
Operating activities...................... $ 1,716 $ 538 $ 3,934 $ 1,147 $ 119
Investing activities...................... (18,128) (1,494) (33,647) (7,295) (1,239)
Financing activities...................... 36,005 963 30,608 6,723 853
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AS OF JUNE 30, 1998
-----------------------
HISTORICAL PRO FORMA
---------- ---------
(DOLLARS IN THOUSANDS)
BALANCE SHEET DATA:
Cash and cash equivalents................................... $21,240 $16,012
Total assets................................................ 97,273 96,523
Total long-term debt........................................ 80,000 80,000
Redeemable preferred shares................................. 750 --
Total stockholders' equity.................................. 10,240 10,240
- ---------------
(1) See Note 2 of the Notes to Consolidated Financial Statements of Clearview
Cinema Group, Inc. for the year ended December 31, 1997 with respect to its
acquisitions in 1996 and 1997.
(2) For a discussion of assumptions and adjustments underlying the unaudited pro
forma combined financial information, see "Unaudited Pro Forma Combined
Financial Information."
(3) Basic loss per share is calculated by dividing net loss available for Common
Stock by the weighted average number of shares of Common Stock outstanding
during the period. Diluted loss per share is calculated by dividing net loss
by the weighted average number of shares of Common Stock outstanding, while
also giving effect to all dilutive potential shares of Common Stock that
were outstanding during the period.
(4) The ratio of earnings to fixed charges is computed by dividing operating
income (loss) before fixed charges by fixed charges. Fixed charges is
calculated as interest expense, including capitalized interest, plus
one-third of rental expense. Management believes one-third of rental expense
represents an appropriate portion representative of the interest factor.
(5) Box office margin represents total box office revenues less film rental and
booking fees divided by total box office revenues.
(6) Concession margin represents total concession revenues less cost of
concession sales divided by total concession revenues.
(7) Average ticket price represents total box office revenue divided by
attendance.
(8) Average concession revenue per patron represents concession revenue divided
by attendance.
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RISK FACTORS
Prospective investors should consider carefully the risk factors set forth
below, as well as the other information appearing in this Prospectus, before
making any investment in the New Notes.
CONSEQUENCES OF FAILURE TO PROPERLY TENDER OLD NOTES PURSUANT TO THE EXCHANGE
OFFER
Issuance of the New Notes in exchange for the Old Notes pursuant to the
Exchange Offer will be made only after timely receipt by the Exchange Agent of
such Old Notes, a properly completed and duly executed Letter of Transmittal and
all other required documents. Therefore, holders of the Old Notes desiring to
tender such Old Notes in exchange for New Notes should allow sufficient time to
ensure timely delivery. The Company is under no duty to give notification of
defects or irregularities with respect to tenders of Old Notes for exchange. Old
Notes that are not tendered or that are tendered but not accepted by the Company
for exchange, will, following consummation of the Exchange Offer, continue to be
subject to the existing restrictions upon transfer thereof under the Securities
Act and, upon consummation of the Exchange Offer, certain registration rights
under the Registration Rights Agreement will terminate. If the Proposed
Amendments which are the subject of the Consent Solicitation become effective,
the Proposed Amendments will be binding on all Holders that did not tender Notes
in the Tender Offer, including Holders of New Notes as well as Old Notes. See
"Description of Notes--The Proposed Amendments" and "Description of
Notes--Registration Rights; Liquidated Damages."
Remaining Old Notes will continue to be subject to the following
restrictions on transfer: (i) the Remaining Old Notes may be resold only if
registered pursuant to the Securities Act, if any exemption from registration is
available thereunder, or if neither such registration nor such exemption is
required by law, and (ii) the Remaining Old Notes will bear a legend restricting
transfer in the absence of registration or an exemption therefrom. The Company
does not currently anticipate that it will register the Old Notes under the
Securities Act. To the extent that Old Notes are tendered and accepted in
connection with the Exchange Offer, any trading market for Remaining Old Notes
could be adversely affected.
SUBSTANTIAL LEVERAGE; RESTRICTIONS IMPOSED BY THE TERMS OF THE COMPANY'S
INDEBTEDNESS
The Company is, and will continue after the Exchange Offer to be, highly
leveraged. As of June 30, 1998, the Company had total consolidated indebtedness
of approximately $80.0 million and total stockholders' equity of approximately
$10.2 million. For the year ended December 31, 1997, on a pro forma basis after
giving effect to the 1997 Acquisitions, the 1998 Acquisitions and the
Transactions, the Company's earnings would have been insufficient to cover fixed
charges by $4,571,868. For the six months ended June 30, 1998, on a pro forma
basis after giving effect to the 1998 Acquisitions (other than the Cobble Hill
Acquisition and the Bala Cynwyd Acquisition) and the Transactions, earnings
would have been insufficient to cover fixed charges by $3,915,000. Clearview and
its subsidiaries will be permitted to incur additional indebtedness in the
future, including up to $15.0 million under the New Credit Facility. See
"Capitalization," "Management's Discussion and Analysis of Financial Condition
and Results of Operations," "Description of New Credit Facility" and
"Description of Notes."
The degree to which the Company is leveraged could have important
consequences to holders of the New Notes, including, but not limited to: (i)
making it more difficult for the Company to satisfy its obligations with respect
to the Notes, (ii) increasing the Company's vulnerability to general adverse
economic and industry conditions, (iii) limiting the Company's ability to obtain
additional financing to fund future working capital, acquisitions, capital
expenditures and other general corporate requirements, (iv) requiring the
dedication of a substantial portion of the Company's cash flow from operations
to the payment of principal of, and interest on, its indebtedness, thereby
reducing the availability of such cash flow to fund working capital,
acquisitions, capital expenditures or other general corporate purposes, (v)
limiting the Company's flexibility in planning for, or reacting to, changes in
its business and the industry and (vi) placing the Company at a competitive
disadvantage compared to less leveraged competitors. In addition, the degree to
which the Company is leveraged could prevent it from repurchasing all of the
Notes tendered to it upon the occurrence of a Change of Control. See
"--Repurchase of the Notes Upon a Change of Control," "Description of New Credit
Facility" and "Description of Notes--Repurchase at the Option of Holders--Change
of Control."
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22
The Company's ability to make scheduled payments of principal of, or to pay
interest on, its debt obligations, and its ability to refinance any such debt
obligations (including the Notes), or to fund acquisitions or planned capital
expenditures, will depend on its future performance, which, to a certain extent,
is subject to general economic, financial, competitive, regulatory and other
factors that are beyond its control. The Company's growth strategy contemplates
substantial expansion of its theaters and screens. Based on the Company's
current operations and anticipated revenue growth, management believes that cash
flow from operations and other available cash, including available borrowings
under the New Credit Facility, will be sufficient to fund the Company's growth
strategy through at least the end of 1998. Thereafter, however, or in the event
the Company exceeds its currently anticipated expansion plans, the Company
anticipates that it will need to seek additional equity or debt financing to
fund its growth strategy. Failure to obtain any such financing could have a
material adverse effect on the Company's ability to achieve its growth strategy.
In addition, the Company may need to refinance all or a portion of its
indebtedness (including the Notes) on or prior to its scheduled maturity. There
can be no assurance that the Company will generate sufficient cash flow from
operations in the future, that anticipated revenue growth will be realized or
that future borrowings, equity contributions or loans from affiliates will be
available in an amount sufficient to service its indebtedness, fund acquisitions
and make anticipated capital expenditures. In addition, there can be no
assurance that the Company will be able to effect any required refinancings of
its indebtedness (including the Notes) on commercially reasonable terms or at
all. See "--Expansion Plans" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations."
The Indenture and the New Credit Facility contain numerous restrictive
covenants, including but not limited to covenants that restrict the Company's
ability to incur indebtedness, pay dividends, create liens, sell assets and
engage in certain mergers and acquisitions. In addition, the New Credit Facility
requires the Company to maintain certain financial ratios. The ability of the
Company to comply with the covenants and other terms of the New Credit Facility
and the Indenture and to satisfy its respective debt obligations (including,
without limitation, borrowings and other obligations under the New Credit
Facility) will depend on the future operating performance of the Company. In the
event the Company fails to comply with the various covenants contained in the
New Credit Facility or the Indenture, as applicable, it would be in default
thereunder, and in any such case, the maturity of substantially all of its
long-term indebtedness could be accelerated. A default under the Indenture would
also constitute an event of default under the New Credit Facility. See
"Description of New Credit Facility" and "Description of Notes."
The Proposed Amendments will, among other things, modify or eliminate
certain so-called "restrictive covenants" contained in the Indenture. The
modification or elimination of restrictive covenants and other provisions
pursuant to the Proposed Amendments may permit the Company to take actions that
could increase the credit risks with respect to the Company faced by Holders not
tendering into the Tender Offer, adversely affect the market price of the Notes
that remain outstanding or otherwise be adverse to the interest of Holders not
tendering into the Tender Offer. Among other things, the Proposed Amendments
modify Section 4.9 (Incurrence of Indebtedness and Issuance of Preferred Stock)
to replace the Fixed Charge Ratio test with a Cash Flow Ratio test. Section 4.9
of the Indenture limits the Company's ability to incur additional Indebtedness
or issue Disqualified Stock, if after giving effect to such incurrence or
issuance, the Fixed Charge Coverage Ratio would be less than 2.0 to 1.0. Under
the proposed Cash Flow Ratio test, the Company's ability to incur Indebtedness
or issue Disqualified Stock would be limited if after giving effect to such
incurrence or issuance, the Cash Flow Ratio would be greater than 9.0 to 1.0.
The Proposed Amendments also increase the level of Permitted Debt (i.e., debt
which may be incurred without the requirement of satisfying the Cash Flow Ratio
test) that the Company may incur under Credit Facilities from $15 million to
$100 million. Accordingly, under the Cash Flow Ratio test the Company's ability
to incur additional Indebtedness would be increased.
Section 4.12 (Liens) limits the Company's ability to secure Indebtedness
with Liens on its assets except for certain Permitted Liens. Permitted Liens
include Liens securing Indebtedness under the Company's bank credit facility
that was permitted to be incurred under the terms of the Indenture. As a result,
one of the effects arising out of the replacement of the Fixed Charge Ratio test
with the Cash Flow Ratio test is to increase the Company's ability to incur
additional secured Indebtedness. Likewise, the Proposed Amendments replace the
Fixed Charge
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Ratio test included in Section 4.13 (Sale and Leaseback Transactions) with the
Cash Flow Ratio test described above, thereby increasing the Company's ability
to enter into Sale and Leaseback transactions.
The Proposed Amendments also modify Section 4.7 (Restricted Payments) to
(i) delete the restriction on Restricted Investments and (ii) amend the test
permitting certain Restricted Payments. The Proposed Amendments would add a $25
million base amount and take into account contributions of property in exchange
for equity in the Company in calculating the level of Restricted Payments that
would be permitted to be made under the Indenture. In addition, the existing
Indenture limits the Company's ability to make any Restricted Payments, if after
giving effect to such Restricted Payments, the Company would be unable to incur
an additional $1.00 of Indebtedness under the Fixed Charge Ratio test set forth
in Section 4.9. Under the Proposed Amendments, this Fixed Charge Ratio test
would be replaced with the Cash Flow Ratio test described above. Accordingly,
under the Proposed Amendments, the Company's ability to make Restricted Payments
would be increased.
The Proposed Amendments will also (a) delete certain definitions; (b) add
certain definitions; (c) amend certain reporting requirements; (d) eliminate the
requirement to obtain the approval of the Board of Directors and a fairness
opinion in certain circumstances; (e) delete the section related to certain
business activities; and (f) eliminate the Consolidated Net Worth and Fixed
Charge Ratio tests.
The Proposed Amendments will be set forth in a Supplemental Indenture. The
Supplemental Indenture will be executed by the Company and the Trustee as soon
as practicable after receipt of Consents from the Holders of a majority of the
principal amount of the outstanding Notes; however, the Proposed Amendments will
not become operative unless and until the Merger Conditions have been satisfied
or waived and certain other conditions are met. In addition, the Proposed
Amendments may be revised, modified, amended or supplemented after the date
hereof, and if required at that time, a supplement to this Prospectus will be
delivered.
RANKING OF THE NOTES; ASSET ENCUMBRANCES
The Notes represent general unsecured obligations of the Company and will
rank pari passu in right of payment with all future senior indebtedness of the
Company. The Notes will be effectively subordinated to all senior secured
indebtedness of the Company to the extent of such security, including
indebtedness under the New Credit Facility, which provides for revolving credit
borrowings of up to $15.0 million. The Company's obligations under the New
Credit Facility are secured by a pledge of substantially all of the capital
stock of the Company's subsidiaries, and the tangible and intangible assets of
the Company and its subsidiaries. If the Company becomes insolvent or is
liquidated, or if payment under the New Credit Facility is accelerated, the
lenders under the New Credit Facility will be entitled to exercise the remedies
available to a secured lender under applicable law pursuant to the New Credit
Facility. Accordingly, such lenders will have a prior claim with respect to such
assets. Further, to the extent the Company is permitted under the Indenture to
incur indebtedness in excess of $15.0 million under the New Credit Facility or
any refinancing or replacement thereof, the Indenture would permit such
additional borrowings to be secured. The Subsidiary Guarantees also will be
effectively subordinated to all senior secured indebtedness of the Subsidiary
Guarantors to the extent of such security, including the guarantees by such
Subsidiary Guarantors of indebtedness of the Company under the New Credit
Facility. As noted above, the Proposed Amendments increase the amount of secured
indebtedness that the Company can incur under credit facilities (including
future amendments to or replacements of the New Credit Facility) as Permitted
Debt from $15 million to $100 million. As a result, if the Proposed Amendments
are adopted, the Company will have the ability to incur an increased amount of
senior secured indebtedness to which the Notes will be effectively subordinated.
See "Capitalization," "Description of New Credit Facility" and "Description of
Notes."
LIMITED OPERATING HISTORY AND RESULTS; NET LOSSES
The Company was incorporated on November 23, 1994 and acquired the
leaseholds of four theaters with eight screens on December 21, 1994. Since that
time, Clearview has completed 16 acquisitions, representing 34 theaters with a
total of 170 screens, and entered into agreements to operate four theaters with
13 screens. Additionally, since early 1995 Clearview has added seven screens to
existing theaters and constructed a new five-screen theater in an existing
building, resulting in a total of 43 theaters and 203 screens in operation as of
September 30, 1998. As a result of this rapid growth in the number of screens
operated, the Company has a
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24
limited combined operating history. In addition, the Company had net losses of
$216,316, $218,328 and $1,328,938 for the years ended December 31, 1995, 1996
and 1997, respectively, and net losses of $597,699 and $4,712,246 for the six
months ended June 30, 1997 and 1998, respectively. For the year ended December
31, 1997, on a pro forma basis after giving effect to the 1997 Acquisitions, the
1998 Acquisitions and the Transactions, the Company would have had a net loss of
$4,530,636. For the six months ended June 30, 1998, on a pro forma basis after
giving effect to the 1998 Acquisitions (other than the Cobble Hill Acquisition
and the Bala Cynwyd Acquisition) and the Transactions, the Company would have
had a net loss of $3,914,975. There can be no assurance that the Company will
generate net income in the future. See "Unaudited Pro Forma Combined Financial
Data," "Management's Discussion and Analysis of Financial Condition and Results
of Operations" and the Company's consolidated financial statements, including
the notes thereto, appearing elsewhere in this Prospectus.
EXPANSION PLANS
The Company's growth strategy is to acquire or develop theaters and add
screens to its existing theaters where appropriate. The Company's ability to
implement its expansion plans will depend on a number of factors, including
obtaining any required financing, the selection and availability of suitable
locations, the hiring and training of sufficiently skilled management and other
personnel and other factors, such as general economic and demographic
conditions, that are beyond the control of the Company. There can be no
assurance that the Company will be able to execute this strategy or to operate
profitably the theaters that it develops or acquires. See "Business--Operating
Strategy" and "--Growth Strategy."
Need For Additional Financing. Clearview intends to continue to acquire
theaters and is pursuing the acquisition of additional locations. Based on the
Company's current operations and anticipated revenue growth, management believes
that cash flow from operations and other available cash, including available
borrowings under the New Credit Facility, will be sufficient to fund the
Company's growth strategy through at least the end of 1998. Thereafter, however,
or in the event the Company exceeds its currently anticipated expansion plans,
the Company anticipates that it will need to seek additional equity or debt
financing to fund its growth strategy. Failure to obtain any such financing
could have a material adverse effect on the Company's ability to achieve its
growth strategy. The Company's estimates of its cash requirements to develop or
acquire and renovate theaters and service any debts incurred in connection with
such development or acquisition and renovation are and will be based upon
certain assumptions, including assumptions as to the Company's revenues and cash
flows after any such acquisition or development. There can be no assurance that
such assumptions will prove to be accurate or that unforeseen costs will not be
incurred.
Dependence on Ability to Secure Favorable Locations and Lease Terms. The
success of the Company's growth strategy is dependent on its ability to acquire
or develop theaters in favorable locations, with advantageous lease terms in the
case of leased locations. There can be no assurance that the Company will be
able to locate or develop theaters in appropriate communities or, if it does
locate any such theaters, purchase or lease them on favorable terms. The failure
of the Company to acquire or develop theaters in favorable locations or to
purchase or lease theaters on advantageous terms could result in an inability to
achieve the objectives of its growth strategy.
Possible Risks in Theater Development and Renovation. In connection with
the development of new theaters, the Company either will enter into an agreement
with the property owner/developer who will oversee most of the construction and
completion of a theater or will oversee that construction and completion itself.
When acquiring the right to operate an existing theater (either by entering into
a lease or purchasing the theater and its underlying real estate), the Company
generally will take responsibility for the completion of any proposed
renovations or the construction of new screens. As a result, the Company will,
at times, be subject to the risks inherent in the development of real estate,
many of which are beyond its control. Such risks include changes in federal,
state or local laws or regulations, strikes, adverse weather, material
shortages, increases in the costs of labor and materials and adverse changes in
financial and economic conditions generally. There can be no assurance that any
such theater development or renovation will be successfully completed in a
timely manner.
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DEPENDENCE ON PRESIDENT AND CHIEF EXECUTIVE OFFICER
The Company's success depends upon the continued contributions of A. Dale
Mayo, its Chairman of the Board, President and Chief Executive Officer. The loss
or unavailability of Mr. Mayo to the Company for an extended period of time
could have a material adverse effect upon the Company's business and
development. To the extent that the services of Mr. Mayo are unavailable to the
Company for any reason, the Company will be required to hire other personnel to
manage and operate the Company. There can be no assurance that the Company will
be able to locate qualified personnel to manage and operate the Company or to
employ them on acceptable terms. The Company has entered into an employment
agreement with Mr. Mayo that provides for his employment through 2003. In
addition, the Company maintains key man life insurance in the amount of $2.5
million on the life of Mr. Mayo. See "Management."
GEOGRAPHIC CONCENTRATION
Substantially all of the Company's current theaters are presently located
in the New York/New Jersey metropolitan area and the theaters that it has agreed
to or is contemplating acquiring or developing are principally in the same area.
As a result, negative economic or demographic changes in that area could have a
disproportionately large and adverse effect on the success of the Company's
operations when compared to the effect of any such changes on its competitors
that have a wider geographic distribution of theaters.
CONFLICTS OF INTEREST
Brett E. Marks, who is a director of and a consultant to Clearview, is also
a licensed real estate salesman with First New York Realty Co. Inc. ("First New
York"), a New York City-based realty brokerage firm. Mr. Marks' main consulting
work for Clearview relates to the identification of theaters that could be
suitable acquisition candidates for the Company, because of their locations and
the demographics of their communities, and of communities that could be
appropriate for the development of new theaters, given their demographics and
the available locations in such communities, and the performance of due
diligence with respect thereto. If the Company decides to acquire any such
theater, First New York may be entitled to a commission, which Mr. Marks would
be entitled to share, from the owner of that theater, or Mr. Marks personally
may be entitled to a commission directly from the owner. In connection with
Clearview's acquisition of the UA I Theaters in September 1997, First New York
and Mr. Marks received approximately $259,500 and $77,850, respectively. In
connection with Clearview's acquisitions of a three-screen theater in Roslyn,
New York, the CJM Theaters, the Nelson Ferman Theaters, a six-screen theater in
Montclair, New Jersey, two three-screen theaters in Manhasset and Babylon, New
York, the Cobble Hill Acquisition and the Great Neck/Franklin Square
Acquisition, Mr. Marks received fees of approximately $100,200 in the aggregate.
In addition, in connection with the Company's lease of office space in Chatham,
New Jersey, Mr. Marks received a fee of approximately $5,000. See "Certain
Transactions."
COMPETITION
The motion picture exhibition industry is highly competitive, particularly
with respect to licensing films, attracting patrons and finding theater sites.
There are a number of well-established theater circuits with substantially
greater financial and other resources than the Company that operate in the New
York/New Jersey metropolitan area and in the Middle Atlantic and New England
states generally. Some of these theater operators have been in existence
significantly longer than the Company and may be better established in the
Company's markets and better capitalized. Moreover, alternative delivery systems
are available for the presentation of filmed entertainment, including cable
television, direct satellite delivery, video cassettes and pay-per-view
television. An expansion or increase in popularity of such delivery systems
could have a material adverse effect on movie theater attendance in general and
upon the Company's business and results of operations in particular. See
"Business--Industry Overview" and "--Competition."
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DEPENDENCE ON FILMS
The ability of the Company to operate successfully depends upon a number of
factors, the most important of which is the availability of marketable motion
pictures. Poor relationships with film distributors, a disruption in the
production of motion pictures or poor commercial success for motion pictures
could have a material adverse effect upon the Company. See "Business--Film
Licensing."
DEPENDENCE ON CONCESSION SALES
Concession sales accounted for approximately 23% of the Company's revenues
in each of the years ended December 31, 1996 and 1997. Accordingly, the
financial success of the Company depends, to a significant extent, on its
ability to successfully generate concession sales in the future. See
"Business--Concessions."
FLUCTUATIONS IN QUARTERLY RESULTS OF OPERATIONS
Generally, the most marketable motion pictures have been released during
the summer and the Thanksgiving through year-end holiday season. Thus, the
motion picture exhibition industry's revenues are seasonal, although the
emergence of hit films during other periods can alter this traditional trend. In
any case, the timing of releases is likely to have a substantial effect on the
Company's results of operations and the results for any one quarter may not
necessarily be indicative of results of operations for subsequent quarters. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Quarterly Results and Seasonality."
OWNERSHIP AND SIGNIFICANT INFLUENCE OF PRINCIPAL STOCKHOLDERS
As of September 30, 1998, the directors and executive officers of the
Company (the "Senior Management") collectively beneficially own approximately
58.8% of the outstanding Common Stock assuming the conversion of the outstanding
shares of Class A Preferred Stock (approximately 55.5% of the Common Stock
assuming the additional conversion of the outstanding shares of Class C
Preferred Stock), including approximately 24.3% of the outstanding Common Stock
which is subject to voting trusts for which Mr. Mayo is the trustee. As a result
of this ownership, if the directors and executive officers as a group or some
combination thereof act in concert, they will have the ability to exert
significant influence over the policies and affairs of the Company and corporate
actions requiring stockholder approval, including the composition of the Board
of Directors. This concentration of ownership could have the effect of delaying,
deferring or preventing a change of control of the Company, including a business
combination with an unaffiliated party. See "Management" and "Principal
Stockholders."
RISK OF FRAUDULENT CONVEYANCE LIABILITY
Various laws enacted for the protection of creditors may apply to the
Company's incurrence of indebtedness and other obligations in connection with
the Notes Offering, including the issuance of the Notes. If a court were to find
in a lawsuit by an unpaid creditor or representative of creditors of the Company
that the Company did not receive fair consideration or reasonably equivalent
value for incurring such indebtedness or obligation and, at the time of such
incurrence, the Company (i) was insolvent; (ii) was rendered insolvent by reason
of such incurrence; (iii) was engaged in a business or transaction for which the
assets remaining in the Company constituted unreasonably small capital; or (iv)
intended to incur or believed it would incur obligations beyond its ability to
pay such obligations as they mature, such court, subject to applicable statutes
of limitation, could determine to invalidate, in whole or in part, such
indebtedness and obligations as fraudulent conveyances or subordinate such
indebtedness and obligations to existing or future creditors of the Company.
The measure of insolvency for purposes of the foregoing will vary depending
on the law of the jurisdiction which is being applied. Generally, however, the
Company would be considered insolvent at a particular time if the sum of its
debts was then greater than all of its property at a fair valuation or if the
present fair saleable value of its assets was then less than the amount that
would be required to pay its probable liabilities on its existing debts as they
become absolute and matured. On the basis of its historical financial
information, its recent operating history as discussed in "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
other factors, the Company's management believes that, after giving effect to
the Notes Offering, the Company was not rendered insolvent, it has sufficient
capital for the businesses in which it will be
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engaged and it will be able to pay its debts as they mature. However, management
has not obtained any independent opinion regarding such issues. There can be no
assurance as to what standard a court would apply in making such determinations.
In addition, the Subsidiary Guarantees may be subject to review under
relevant federal and state fraudulent conveyance and similar statutes in a
bankruptcy or reorganization case or a lawsuit by or on behalf of creditors of
any of the Subsidiary Guarantors. In such a case, the analysis set forth above
would generally apply, except that the Subsidiary Guarantees could also be
subject to the claim that, since the Subsidiary Guarantees were incurred for the
benefit of the Company (and only indirectly for the benefit of the Subsidiary
Guarantors), the obligations of the Subsidiary Guarantors thereunder were
incurred for less than reasonably equivalent value or fair consideration. A
court could avoid a Subsidiary Guarantor's obligation under its Subsidiary
Guarantee, subordinate the Subsidiary Guarantee to other indebtedness of a
Subsidiary Guarantor or take other action detrimental to the holders of the
Notes.
REPURCHASE OF THE NOTES UPON A CHANGE OF CONTROL
Upon a Change of Control, the holders of the Notes will have the right to
require Clearview to repurchase such holders' Notes, in whole or in part, at a
price equal to 101% of the principal amount thereof, plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date of purchase. If a
Change of Control were to occur, Clearview might not have the financial
resources to repurchase all of the Notes and repay any other indebtedness that
would become payable upon the occurrence of such Change of Control. In
particular, a Change of Control may cause an acceleration of, or require the
repayment of loans under, the New Credit Facility, in which case such loans
would be required to be repaid in full prior to any repurchase of the Notes. The
inability to repay such indebtedness, if accelerated, and to purchase all of the
tendered Notes, would constitute an event of default under the Indenture. The
Change of Control purchase feature of the Notes may in certain circumstances
discourage or make more difficult a sale or takeover of the Company. If the
Merger is completed, a Change of Control will occur under the Indenture and each
Holder of the Notes will have the right to require the Company to purchase all
or any part (equal to $1,000 or an integral multiple thereof) of such Holder's
Notes at an offer price in cash equal to 101% of the aggregate principal amount
thereon plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the date of purchase. See "Business--Recent Developments" and "Description of
Notes--Repurchase at the Option of Holders--Change of Control."
ABSENCE OF PUBLIC MARKET; RESTRICTIONS ON TRANSFER
The New Notes will constitute a new class of securities with no established
trading market. The New Notes are expected to be eligible for trading in the
PORTAL market by "qualified institutional buyers" ("QIBs"), as defined in Rule
144A under the Securities Act; however, there can be no assurance given as to
the liquidity of, or the trading market for, the New Notes, the ability of
holders of the New Notes to sell their New Notes or the price at which holders
would be able to sell their New Notes. The Company does not intend to list the
New Notes on any national securities exchange or to seek the admission thereof
to trading on the NASDAQ National Market System. Future trading prices of the
New Notes will depend on many factors, including, among other things, prevailing
interest rates, the Company's operating results and the market for similar
securities. The Initial Purchaser has advised the Company that it currently
intends to make a market in the New Notes. The Initial Purchaser is not
obligated to do so, however, and any market-making activities will be subject to
the limits imposed by the Securities Act and the Exchange Act, and may be
limited during the Exchange Offer and the pendency of any Shelf Registration
Statement.
YEAR 2000
The Year 2000 issue is the result of computer programs being written using
two digits (rather than four) to define the applicable year. Any of Clearview's
programs that have time-sensitive software may recognize a date using "00" as
the year 1900 rather than the year 2000, which could result in miscalculations
or system failures, causing disruption in operations, including, but not limited
to, an inability to send and receive electronic data, or to engage in routine
business activities and operations.
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This issue creates risk for Clearview from unforeseen problems in its own
computer systems and from third parties with whom Clearview deals on
transactions. Clearview is in the early stages of evaluating the potential
impact of the Year 2000 on the electronic data processing and other information
systems relevant to Clearview's business, and is developing a plan to resolve
this issue. As part of that plan, Clearview recently hired an outside consulting
firm to assist in the completion of the first phase of its Year 2000 project.
Those activities, which will occur in the fourth quarter of 1998, include the
compiling of a detailed inventory of Clearview's computer hardware and software
applications, the identification of imbedded chips in any non-IT equipment, the
development of detailed project plans to address each component, and the
development of an estimated cost for the remainder of the project.
Clearview has had formal discussions with certain of its major suppliers
concerning their Year 2000 compliance, and intends to continue such discussions
into the fourth quarter of 1998. However, there can be no assurance that the
systems of other companies that interact with Clearview will be sufficiently
Year 2000 compliant so as to avoid an adverse impact on Clearview's operations,
financial condition and results of operations.
Clearview anticipates that it will complete its Year 2000 project,
including contingency planning, during 1999 but there can be no assurance that
Clearview will be successful in meeting this schedule. It is currently unknown
what specific potential adverse consequences could result from failure to
properly mitigate the Year 2000 problem, and in addition, Clearview is currently
unable to estimate the overall cost associated with its Year 2000 project. No
costs have been incurred to date.
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THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
In connection with the sale of the Old Notes, the Company entered into the
Registration Rights Agreement with the Initial Purchaser, pursuant to which the
Company agreed to use its best efforts to file with the Commission a
registration statement with respect to the exchange of the Old Notes for a
series of registered debt securities with terms identical in all material
respects to the terms of the Old Notes, except for certain transfer
restrictions, registration rights and terms providing for an increase in the
interest rate on the Old Notes under certain circumstances relating to the
registration rights.
The Company is making the Exchange Offer in reliance on the position of the
staff of the Commission as set forth in Exxon Capital Holdings Corp., SEC
No-Action Letter (April 13, 1989), Morgan Stanley & Co. Inc., SEC No-Action
Letter (June 5, 1991) and Shearman & Sterling, SEC No-Action Letter (July 2,
1993). However, the Company has not sought its own no-action letter, and there
can be no assurance that the staff of the Commission would make a similar
determination with respect to the Exchange Offer as in such other circumstances.
Based upon these interpretations by the staff of the Commission, the Company
believes that New Notes issued pursuant to the Exchange Offer in exchange for
Old Notes may be offered for resale, resold and otherwise transferred by a
holder thereof other than (i) a broker-dealer who purchased such Old Notes
directly from the Company to resell pursuant to Rule 144A or any other available
exemption under the Securities Act or (ii) a person that is an "affiliate" (as
defined in Rule 405 of the Securities Act) of the Company without compliance
with the registration and prospectus delivery provisions of the Securities Act,
provided that such New Notes are acquired in the ordinary course of such
holder's business and that such holder is not participating, and has no
arrangement or understanding with any person to participate, in the distribution
of such New Notes. Holders of Old Notes accepting the Exchange Offer will
represent to the Company in the Letter of Transmittal that such conditions have
been met. Any holder who participates in the Exchange Offer for the purpose of
participating in a distribution of the New Notes may not rely on the position of
the staff of the Commission as set forth in these no-action letters and would
have to comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any secondary resale transaction. A secondary
resale transaction in the United States by a holder who is using the Exchange
Offer to participate in the distribution of New Notes must be covered by a
registration statement containing the selling securityholder information
required by applicable regulations promulgated under the Securities Act.
Each broker-dealer that receives New Notes for its own account pursuant to
the Exchange Offer must acknowledge that it acquired the Old Notes as a result
of market-making activities or other trading activities and will deliver a
prospectus in connection with any resale of such New Notes. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of New Notes received in exchange for
Old Notes where such Old Notes were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Letter of
Transmittal states that by acknowledging and delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. The Company has agreed that for a period of 90
days after the date of this Prospectus, it will make this Prospectus available
to broker-dealers for use in connection with any such resale. See "Plan of
Distribution."
Except as described above, this Prospectus may not be used for an offer to
resell, resale or other retransfer of New Notes.
The Exchange Offer is not being made to, nor will the Company accept
tenders for exchange from, holders of Old Notes in any jurisdiction in which the
Exchange Offer or the acceptance thereof would not be in compliance with the
securities or blue sky laws of such jurisdiction.
TERMS OF THE EXCHANGE
Upon the terms and subject to the conditions of the Exchange Offer, the
Company will, unless such Old Notes are withdrawn in accordance with the
withdrawal rights specified in "--Withdrawal of Tenders", accept any and all Old
Notes validly tendered prior to 5:00 p.m., New York City time, on the Expiration
Date. The date
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of acceptance for exchange of the Old Notes, and consummation of the Exchange
Offer, is the Exchange Date, which will be the first business day following the
Expiration Date (unless extended as described herein). The Company will issue,
on or promptly after the Exchange Date, an aggregate principal amount of up to
$80,000,000 of New Notes in exchange for a like principal amount of outstanding
Old Notes tendered and accepted in connection with the Exchange Offer. The New
Notes issued in connection with the Exchange Offer will be delivered on the
earliest practicable date following the Exchange Date. Holders may tender some
or all of their Old Notes in connection with the Exchange Offer. However, Old
Notes may be tendered only in integral multiples of $1,000.
The terms of the New Notes are identical in all material respects to the
terms of the Old Notes, except for certain transfer restrictions, registration
rights and terms providing for an increase in the interest rate on the Old Notes
under certain circumstances relating to the registration rights. The New Notes
will evidence the same debt as the Old Notes and will be issued under and be
entitled to the same benefits under the Indenture as the Old Notes. As of the
date of this Prospectus, $80,000,000 aggregate principal amount of the Old Notes
is outstanding.
In connection with the issuance of the Old Notes, the Company arranged for
the Old Notes originally purchased by qualified institutional buyers to be
issued and transferable in book-entry form through the facilities of The
Depository Trust Company ("DTC"), acting as depositary. Except as described
under "Description of Notes--Book-Entry, Delivery and Form," the New Notes will
be issued in the form of a global note registered in the name of DTC or its
nominee and each holder's interest therein will be transferable in book-entry
form through DTC. See "Description of Notes--Book-Entry, Delivery and Form."
Holders of Old Notes do not have any appraisal or dissenters' rights in
connection with the Exchange Offer. Old Notes which are not tendered for
exchange or are tendered but not accepted in connection with the Exchange Offer
will remain outstanding and be entitled to the benefits of the Indenture, but
will be entitled to registration rights under the Registration Rights Agreement
only in limited circumstances.
The Company shall be deemed to have accepted validly tendered Old Notes
when, as and if the Company has given oral or written notice thereof to the
Exchange Agent. The Exchange Agent will act as agent for the tendering holders
for the purposes of receiving the New Notes from the Company.
If any tendered Old Notes are not accepted for exchange because of an
invalid tender, the occurrence of certain other events set forth herein or
otherwise, certificates for any such unaccepted Old Notes will be returned,
without expense, to the tendering holder thereof as promptly as practicable
after the Expiration Date.
Holders who tender Old Notes in connection with the Exchange Offer will not
be required to pay brokerage commissions or fees or, subject to the instructions
in the Letter of Transmittal, transfer taxes with respect to the exchange of Old
Notes in connection with the Exchange Offer. The Company will pay all charges
and expenses, other than certain applicable taxes described below, in connection
with the Exchange Offer. See "--Fees and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" shall mean 5:00 p.m., New York City time, on
December 22, 1998, unless extended by the Company in its sole discretion (in
which case the Expiration Date shall be the latest date and time to which the
Exchange Offer is extended).
The Company reserves the right, in its sole discretion (i) to delay
accepting any Old Notes, to extend the Exchange Offer or to terminate the
Exchange Offer and to refuse to accept Old Notes not previously accepted, if any
of the conditions set forth below under "Conditions to the Exchange Offer" shall
not have been satisfied and shall not have been waived by the Company (if
permitted to be waived by the Company) and (ii) to amend the terms of the
Exchange Offer in any manner. Any such delay in acceptance, extension,
termination or amendment will be followed as promptly as practicable by oral or
written notice thereof to the registered holders. If the Exchange Offer is
amended in a manner determined by the Company to constitute a material change,
the Company will promptly disclose such amendment by means of a prospectus
supplement that will be distributed to the registered holders of the Old Notes,
and the Company will extend the Exchange Offer for a period of five to
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ten business days, depending upon the significance of the amendment and the
manner of disclosure to the registered holders, if the Exchange Offer would
otherwise expire during such five to ten business day period.
If the Company determines to make a public announcement of any delay,
extension, amendment or termination of the Exchange Offer, the Company shall
have no obligation to publish, advertise or otherwise communicate any such
public announcement, other than by making a timely release to an appropriate
news agency.
INTEREST OF THE NEW NOTES
Each New Note will bear interest at the rate of 10 7/8% per annum from the
most recent date to which interest has been paid or duly provided for on the Old
Note surrendered in exchange for such New Note or, if no interest has been paid
or duly provided for on such Old Note, from June 12, 1998. Interest on the New
Notes will be payable semiannually on June 1 and December 1 of each year,
commencing on the first such date following the original issuance date of the
New Notes.
Holders of Old Notes whose Old Notes are accepted for exchange will not
receive accrued interest on such Old Notes for any period from and after the
last Interest Payment Date to which interest has been paid or duly provided for
on such Old Notes prior to the original issue date of the New Notes or, if no
such interest has been paid or duly provided for, will not receive any accrued
interest on such Old Notes, and will be deemed to have waived the right to
receive any interest on such Old Notes accrued from and after such Interest
Payment Date or, if no such interest has been paid or duly provided for, from
and after June 12, 1998.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other term of the Exchange Offer, the Company will not
be required to accept for exchange, or to exchange, any Old Notes for any New
Notes, and may terminate or amend the Exchange Offer before the acceptance of
any Old Notes for exchange, if:
(a) any action or proceeding is instituted or threatened in any court
or by or before any governmental agency with respect to the Exchange Offer
which, in the Company's reasonable good faith judgment, would be expected
to impair the ability of the Company to proceed with the Exchange Offer, or
(b) any law, statute, rule or regulation is adopted or enacted, or any
existing law, statute, rule or regulation is interpreted by the Commission
or its staff, which, in the Company's reasonable good faith judgment, would
be expected to impair the ability of the Company to proceed with the
Exchange Offer.
If the Company determines in its reasonable good faith judgment that either
of the foregoing conditions exist, the Company may (i) refuse to accept any Old
Notes and return all tendered Old Notes to the tendering holders, (ii) extend
the Exchange Offer and retain all Old Notes tendered prior to the expiration of
the Exchange Offer, subject, however, to the rights of holders who tendered such
Old Notes to withdraw their tendered Old Notes which have not been withdrawn. If
such waiver constitutes a material change to the Exchange Offer, the Company
will promptly disclose such waiver by means of a prospectus supplement that will
be distributed to the registered holders, and the Company will extend the
Exchange Offer for a period of five to ten business days, depending upon the
significance of the waiver and the manner of disclosure to the registered
holders, if the Exchange Offer would otherwise expire during such five to ten
business days.
CONSENT SOLICITATION AND TENDER OFFER
The Company is soliciting Consents to the Proposed Amendments and to the
execution of the Supplemental Indenture to, among other things, modify or
eliminate certain restrictive covenants contained in the Indenture. The Company
is also offering to purchase any and all of the Notes for cash upon the terms
and subject to the conditions set forth in the Tender Offer. If on December 10,
1998, the Consent Time shall have occurred under the Consent Solicitation and
the Tender Offer Expiration Time shall not have occurred, Holders who have
tendered Old Notes in the Tender Offer may participate in the Exchange Offer by
complying with the procedures for withdrawal of tendered Old Notes from the
Tender Offer set forth in the Consent Solicitation and Tender Offer
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materials and described herein under "The Exchange Offer--Procedures for
Tendering," and tendering such withdrawn Old Notes in the Exchange Offer.
PROCEDURES FOR TENDERING
Only a holder of record of Old Notes on October 28, 1998 may tender such
Old Notes in connection with the Exchange Offer. To tender in connection with
the Exchange Offer, a holder must complete, sign and date the Letter of
Transmittal, or a facsimile thereof, have the signatures thereon guaranteed if
required by the Letter of Transmittal and deliver such Letter of Transmittal or
such facsimile, together with the Old Notes (unless such tender is being
effected pursuant to the procedure for book-entry transfer described below) and
any other required documents, to the Exchange Agent prior to 5:00 p.m., New York
City time, on the Expiration Date.
If on December 10, 1998, the Consent Time for the Consent Solicitation
shall have occurred and the Tender Offer Expiration Time shall not have
occurred, Holders who have tendered Old Notes in the Tender Offer may
participate in the Exchange Offer by complying with the procedures for
withdrawal of tendered Old Notes from the Tender Offer set forth in the Consent
Solicitation and Tender Offer materials and described below and tendering such
withdrawn Old Notes in the Exchange Offer. Whether or not Holders have
previously tendered Old Notes in the Tender Offer, Holders may instruct the
Exchange Agent in the accompanying Letter of Transmittal to automatically tender
New Notes issued in the Exchange Offer into the Tender Offer after consummation
of the Exchange Offer. The Exchange Agent also is acting as the Depositary in
the Consent Solicitation and Tender Offer.
WITHDRAWAL OF NOTES FROM TENDER OFFER
For a withdrawal of Notes from the Tender Offer to be effective, a written
or facsimile transmission notice of withdrawal must be timely received by the
Depositary at one of the following addresses: by mail--The Bank of New York, 101
Barclay Street, New York, New York 10286, Attention: Marcia Brown,
Reorganization Section; by overnight courier/hand--The Bank of New York, 101
Barclay Street, New York, New York 10286, Corporate Trust Services Window,
Ground Level, Attention: Marcia Brown, Reorganization Section; or by facsimile
for Eligible Institutions--only: (212) 571-3080 and confirm by telephone: (212)
815-6333.
The withdrawal notice must:
(a) specify the name of the Holder who tendered the Notes to be
withdrawn (and, if different, the name of the registered Holder and record
Holder of such Notes) or, in the case of Notes tendered by book-entry
transfer, the name of the DTC participant for whose account such Notes were
tendered and such DTC participant's account number at DTC to be credited
with the withdrawn Notes,
(b) contain a description of the Notes to be withdrawn (including the
principal amount to be withdrawn and, in the case of the Notes tendered by
delivery of certificates rather than book-entry transfer, the certificate
numbers thereof), and
(c) be signed by the Holder of such Notes (and, if different, the
record Holder of such Notes) in the same manner as the original signature
on the Letter of Transmittal and Consent (for the Consent Solicitation and
Tender Offer), including any required signature guarantees (or, in the case
of Notes tendered by a DTC participant through DTC's Automated Tender Offer
Program ("ATOP"), be signed by such participant in the same manner as the
participant's name listed on the applicable Agent's Message), or be
accompanied by evidence satisfactory to the Company that the person
withdrawing the tender has succeeded to the beneficial ownership of such
Notes.
The signature on the notice of withdrawal must be guaranteed by an Eligible
Institution unless such Notes have been tendered for the account of an Eligible
Institution. If certificates for the Notes to be withdrawn have been delivered
or otherwise identified to the Depositary, a signed notice of withdrawal will be
effective immediately upon receipt by the Depositary of written or facsimile
transmission notice of withdrawal even if physical release is not yet effected.
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Withdrawal of tendered Notes may not be rescinded, and any Notes properly
withdrawn will thereafter be deemed not validly tendered for purposes of the
Tender Offer. Properly withdrawn Notes may, however, be retendered by again
following one of the procedures described above at any time prior to the
Expiration Time.
Withdrawals of tendered Notes and revocation of the related Consents in the
Consent Solicitation and Tender Offer can only be accomplished in accordance
with the foregoing procedures.
TENDERS OF OLD NOTES IN EXCHANGE OFFER
Any financial institution that is a participant in DTC's Book-Entry
Transfer Facility system may make book-entry delivery of the Old Notes by
causing DTC to transfer such Old Notes into the Exchange Agent's account in
accordance with DTC's procedure for such transfer. Although delivery of Old
Notes may be effected through book-entry transfer into the Exchange Agent's
account at DTC, the Letter of Transmittal (or facsimile thereof), with any
required signature guarantees and any other required documents, must, in any
case, be transmitted to and received or confirmed by the Exchange Agent at its
addresses set forth under the caption "Exchange Agent," below, prior to 5:00
p.m., New York City time, on the Expiration Date. DELIVERY OF DOCUMENTS TO DTC
IN ACCORDANCE WITH ITS PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE
AGENT.
The tender by a holder of Old Notes will constitute an agreement between
such holder and the Company in accordance with the terms and subject to the
conditions set forth herein and in the Letter of Transmittal.
The method of delivery of Old Notes and the Letter of Transmittal and all
other required documents to the Exchange Agent is at the election and risk of
the holders. Instead of delivery by mail, it is recommended that holders use an
overnight or hand delivery service. In all cases, sufficient time should be
allowed to assure delivery to the Exchange Agent before the Expiration Date. No
Letter of Transmittal or Old Notes should be sent to the Company. Holders may
request their respective brokers, dealers, commercial banks, trust companies or
nominees to effect the tenders for such holders.
Any beneficial owner whose Old Notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact the registered holder promptly and instruct such
registered holder to tender on such beneficial owner's behalf. If such
beneficial owner wishes to tender on such owner's own behalf, such owner must,
prior to completing and executing the Letter of Transmittal and delivery of such
owner's Old Notes, either make appropriate arrangements to register ownership of
the Old Notes in such owner's name or obtain a properly completed bond power
from the registered holder. The transfer of registered ownership may take
considerable time.
Signature on a Letter of Transmittal or a notice of withdrawal, as the case
may be, must be guaranteed by an Eligible Institution (as defined below) unless
the Old Notes tendered pursuant thereto are tendered (i) by a registered holder
who has not completed the box entitled "Special Payment Instructions" or
"Special Delivery Instructions" on the Letter of Transmittal, or (ii) for the
account of an Eligible Institution. In the event that signatures on a Letter of
Transmittal or a notice of withdrawal, as the case may be, are required to be
guaranteed, such guarantee must be by a member firm of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.,
a commercial bank or trust company having an office or correspondent in the
United States or an "eligible guarantor institution" within the meaning of Rule
17Ad-15 under the Exchange Act (an "Eligible Institution").
If the Letter of Transmittal is signed by a person other than the
registered holder of any Old Notes listed therein, such Old Notes must be
endorsed by such registered holder or accompanied by a properly completed bond
power, in each case signed or endorsed in blank by such registered holder as
such registered holder's name appears on such Old Notes.
If the Letter of Transmittal or any Old Notes or bond powers are signed or
endorsed by trustees, executors, administrators, guardians, attorney-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and unless waived by the
Company, evidence satisfactory to the Company of their authority to so act must
be submitted with the Letter of Transmittal.
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34
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance and withdrawal of tendered Old Notes will be determined
by the Company in its sole discretion, which determination will be final and
binding. The Company reserves the absolute right to reject any and all Old Notes
not properly tendered or any Old Notes whose acceptance by the Company would, in
the opinion of counsel to the Company, be unlawful. The Company also reserves
the right to waive any defects, irregularities or conditions of tender as to any
particular Old Notes either before or after the Expiration Date. The Company's
interpretation of the terms and conditions of the Exchange Offer (including the
instructions in the Letter of Transmittal) will be final and binding on all
parties. Unless waived, any defects or irregularities in connection with tenders
of Old Notes must be cured within such time as the Company shall determine.
Although the Company intends to request the Exchange Agent to notify holders of
defects or irregularities with respect to tenders of Old Notes, neither the
Company, the Exchange Agent nor any other person shall have any duty or incur
any liability for failure to give such notification. Tenders of Old Notes will
not be deemed to have been made until such defects or irregularities have been
cured or waived. Any Old Notes received by the Exchange Agent that are not
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned by the Exchange Agent to the tendering holders,
unless otherwise provided in the Letter of Transmittal, as soon as practicable
following the Expiration date.
In addition, the Company reserves the right, as set forth above under the
caption "Conditions to the Exchange Offer," to terminate the Exchange Offer.
By tendering, each holder represents to the Company that, among other
things, the New Notes acquired in connection with the Exchange Offer are being
obtained in the ordinary course of business of the person receiving such New
Notes, whether or not such person is the holder, that neither the holder nor any
such other person has an arrangement or understanding with any person to
participate in the distribution of such New Notes and that neither the holder
nor any such other person is an "affiliate" (as defined in Rule 405 under the
Securities Act) of the Company. If the holder is a broker-dealer that will
receive New Notes for its own account in exchange of Old Notes, it will
acknowledge that it acquired such Old Notes as the result of market-making
activities or other trading activities and that it will deliver a prospectus in
connection with any resale of such New Notes. See "Plan of Distribution."
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available, or (ii) who cannot deliver their Old Notes, the Letter of
Transmittal or any other required documents to the Exchange Agent, or cannot
complete the procedure for book-entry transfer, prior to the Expiration Date,
may effect a tender of their Old Notes if:
(a) The tender is made through an Eligible Institution;
(b) Prior to the Expiration Date, the Exchange Agent receives from
such Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by facsimile transmission, mail or hand delivery)
setting forth the name and address of the holder, the certificate number or
numbers of such Old Notes and the principal amount of Old Notes tendered,
stating that the tender is being made thereby and guaranteeing that, within
five business days after the Expiration Date, the Letter of Transmittal (or
facsimile thereof) together with the certificate or certificates
representing the Old Notes to be tendered in proper form for transfer (or
confirmation of a book-entry transfer into the Exchange Agent's account at
DTC of Old Notes delivered electronically) and any other documents required
by the Letter of Transmittal will be deposited by the Eligible Institution
with the Exchange Agent; and
(c) Such properly completed and executed Letter of Transmittal (or
facsimile thereof) as well as the certificate or certificates representing
all tendered Old Notes in proper form for transfer (or confirmation of a
book-entry transfer into the Exchange Agent's account at DTC of Old Notes
delivered electronically) and all other documents required by the Letter of
Transmittal are received by the Exchange Agent within five business days
after the Expiration Date.
29
35
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of Old Notes may be withdrawn
at any time prior to 5:00 p.m., New York City time, on the Expiration Date.
To withdraw a tender of Old Notes in connection with the Exchange Offer, a
written facsimile transmission notice of withdrawal must be received by the
Exchange Agent at its address set forth herein prior to 5:00 p.m., New York City
time, on the Expiration Date. Any such notice of withdrawal must (i) specify the
name of the person who deposited the Old Notes to be withdrawn (the
"Depositor"), (ii) identify the Old Notes to be withdrawn (including the
certificate number or numbers and principal amount of such Old Notes), (iii) be
signed by the Depositor in the same manner as the original signature on the
Letter of Transmittal by which such Old Notes were tendered (including any
required signature guarantees) or be accompanied by documents of transfer
sufficient to have the trustee register the transfer of such Old Notes into the
name of the person withdrawing the tender, and (iv) specify the name in which
any such Old Notes are to be registered, if different from that of the
Depositor. All questions as to the validity, form and eligibility (including
time of receipt) of such withdrawal notices will be determined by the Company,
whose determination shall be final and binding on all parties. Any Old Notes so
withdrawn will be deemed not to have been validly tendered for purposes of the
Exchange Offer and no New Notes will be issued with respect thereto unless Old
Notes so withdrawn are validly re-tendered. Any Old Notes which have been
tendered but which are not accepted for exchange or which are withdrawn will be
returned to the holder thereof without cost to such holder as soon as
practicable after withdrawal, rejection of tender or termination of the Exchange
Offer. Properly withdrawn Old Notes may be retendered by following one of the
procedures described above under the caption "Procedures for Tendering" at any
time prior to the Expiration Date.
EXCHANGE AGENT
The Bank of New York has been appointed as Exchange Agent for the Exchange
Offer. Questions and requests for assistance and requests for additional copies
of this Prospectus or of the Letter of Transmittal and requests for Notice of
Guaranteed Delivery should be directed to the Exchange Agent address as follows:
By Mail: By Facsimile Transmission: By Hand:
The Bank of New York (For Eligible Institutions The Bank of New York
101 Barclay Street Only) 101 Barclay Street
Floor 7 East (212) 815-6339 New York, New York 10286
New York, New York 10286 Attention: Ground Level
Attention: Christopher Confirm by Telephone: Corporate Trust
Davis, (212) 815-4997 Services Window
Reorganization Section
By Overnight Delivery:
The Bank of New York
101 Barclay Street
Floor 7 East
New York, New York 10286
Attention: Christopher
Davis,
Reorganization Section
The Bank of New York also serves as Trustee under the Indenture.
FEES AND EXPENSES
The Company will not make any payment to brokers, dealers or others
soliciting acceptances of the Exchange Offer. The Company will pay certain other
expenses to be incurred in connection with the Exchange Offer, including the
fees and expenses of the Exchange Agent, accounting fees and certain legal fees.
Holders who tender their Old Notes for exchange will not be obligated to
pay any transfer taxes in connection therewith. If, however, New Notes are to be
delivered to, or are to be issued in the name of, any person other than the
registered holder of the Old Notes tendered, or if tendered Old Notes are
registered in the
30
36
name of any person other than the person signing the Letter of Transmittal, or
if a transfer tax is imposed for any reason other than the exchange of Old Notes
in connection with the Exchange Offer, then the amount of any such transfer
taxes (whether imposed on the registered holder or any other persons) will be
payable by the tendering holder. If satisfactory evidence of payment of such
taxes or exemption therefrom is not submitted with the Letter of Transmittal,
the amount of such transfer taxes will be billed directly to such tendered
holder.
ACCOUNTING TREATMENT
The New Notes will be recorded at the same carrying value as the Old Notes
as reflected in the Company's accounting records on the date of the exchange.
Accordingly, no gain or loss for accounting purposes will be recognized by the
Company upon the consummation of the Exchange Offer. Any expenses of the
Exchange Offer that are paid by the Company will be amortized by the Company
over the term of the New Notes in accordance with generally accepted accounting
principles.
CONSEQUENCES OF FAILURE TO PROPERLY TENDER OLD NOTES IN THE EXCHANGE
Issuance of the New Notes in exchange for the Old Notes pursuant to the
Exchange Offer will be made only after timely receipt by the Exchange Agent of
such Old Notes, a properly completed and duly executed Letter of Transmittal and
all other required documents. Therefore, holders of the Old Notes desiring to
tender such Old Notes in exchange for New Notes should allow sufficient time to
ensure timely delivery. The Company is under no duty to give notification of
defects or irregularities with respect to tenders of Old Notes for exchange. Old
Notes that are not tendered or that are tendered but not accepted by the
Company, will, following consummation of the Exchange Offer, continue to be
subject to the existing restrictions upon transfer thereof under the Securities
Act and, upon consummation of the Exchange Offer, certain registration rights
under the Registration Rights Agreement will terminate. If the Proposed
Amendments which are the subject of the Consent Solicitation become effective,
the Proposed Amendments will be binding on all Holders that did not tender Notes
in the Tender Offer, including Holders of New Notes as well as Old Notes. See
"Description of Notes--The Proposed Amendments" and "Description of
Notes--Registration Rights; Liquidated Damages."
In the event the Exchange Offer is consummated, the Company will be
required to register the Remaining Old Notes only in limited circumstances.
Remaining Old Notes will continue to be subject to the following restrictions on
transfer: (i) the Remaining Old Notes may be resold only if registered pursuant
to the Securities Act, if any exemption from registration is available
thereunder, or if neither such registration nor such exemption is required by
law, and (ii) the Remaining Old Notes will bear a legend restricting transfer in
the absence of registration or an exemption therefrom. The Company does not
currently anticipate that it will register the Remaining Old Notes under the
Securities Act. To the extent that Old Notes are tendered and accepted in
connection with the Exchange Offer, any trading market for Remaining Old Notes
could be adversely affected.
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of the New
Notes offered hereby. In consideration for issuing the New Notes as described in
this Prospectus, the Company will receive in exchange Old Notes in like
principal amount, the terms of which are identical in all material respects to
those of the New Notes, except for certain transfer restrictions, registration
rights and terms providing for an increase in the interest rate on the Old Notes
under certain circumstances relating to the registration rights. The Old Notes
surrendered in exchange for the New Notes will be retired and canceled and
cannot be reissued. Accordingly, the issuance of the New Notes will not result
in any change in indebtedness of the Company.
31
37
CAPITALIZATION
The following table sets forth as of June 30, 1998 the historical
capitalization of the Company and the capitalization of the Company as adjusted
to give effect to the Subsequent Transactions. The following table should be
read in conjunction with "Unaudited Pro Forma Combined Financial Information",
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the Company's consolidated financial statements, including the
notes thereto, appearing elsewhere in this Prospectus. See also
"Business--Existing Theaters."
JUNE 30, 1998
------------------------
PRO FORMA
HISTORICAL AS ADJUSTED
---------- -----------
(IN THOUSANDS)
Cash and cash equivalents, including escrow deposit(1)...... $21,240 $16,012
======= =======
Debt (including current maturities):
Senior Notes due 2008..................................... $80,000 $80,000
Class B Redeemable Preferred Stock.......................... 750
Stockholders' equity:
Undesignated Preferred Stock, 2,475,697 shares
authorized.............................................
Class A Convertible Preferred Stock, par value $.01, 1,303
shares authorized, 779 shares issued and outstanding... -- --
Class C Convertible Preferred Stock, par value $.01, 3,000
shares authorized, issued and outstanding.............. -- --
Common Stock, par value $.01, 10,000,000 shares
authorized, 2,304,802 issued and outstanding........... 23 23
Additional paid-in-capital................................ 18,231 18,231
Accumulated deficit....................................... (8,014) (8,014)
------- -------
Total stockholders' equity............................. 10,240 10,240
------- -------
Total capitalization................................... $90,990 $90,240
======= =======
- ---------------
(1) For a reconciliation of Historical and Pro Forma As Adjusted cash and cash
equivalents, see Note 1 of Notes to Unaudited Pro Forma Combined Balance
Sheet.
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UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION
The following Unaudited Pro Forma Combined Financial Information presents
the Pro Forma Combined Balance Sheet of Clearview at June 30, 1998 and the Pro
Forma Combined Statements of Operations of Clearview for the year ended December
31, 1997 and the six months ended June 30, 1998.
The Unaudited Pro Forma Combined Balance Sheet is based on the historical
consolidated balance sheet of Clearview as of June 30, 1998, and gives effect to
the Subsequent Transactions as if they had been consummated by June 30, 1998.
The Unaudited Pro Forma Combined Statement of Operations for the year ended
December 31, 1997 is based on the historical combined statements of operations
of Clearview, the UA I Theaters, the CJM Theaters, the Nelson Ferman Theaters,
the Other 1997 Acquisitions, and the 1998 Acquisitions and gives effect to the
Transactions, the 1997 Acquisitions and the 1998 Acquisitions as if they had
been consummated at January 1, 1997.
The Unaudited Pro Forma Combined Statement of Operations for the six months
ended June 30, 1998 is based on the historical combined statements of operations
of Clearview and the 1998 Acquisitions and gives effect to the Transactions and
the 1998 Acquisitions as if they had been consummated at January 1, 1997.
In the opinion of Clearview's management, all adjustments necessary to
present fairly such unaudited pro forma combined financial information have been
made.
The pro forma acquisition adjustments give effect to the acquisitions under
the purchase method of accounting and the assumptions and adjustments (which
Clearview believes to be reasonable) described in the accompanying Notes to
Unaudited Pro Forma Combined Financial Information. Under the purchase method of
accounting, assets acquired and liabilities assumed will be recorded at their
estimated fair value at the date of acquisition. The pro forma adjustments set
forth in the following Unaudited Pro Forma Combined Financial Information are
estimated and may differ from the actual adjustments when they become known.
In connection with the Merger, Cablevision will account for the Merger
using the purchase method of accounting in accordance with the provisions of
Accounting Principles Board Opinion No. 16, "Business Combinations."
Accordingly, Cablevision will record at its cost the acquired assets less
liabilities assumed, with the excess of such cost over the estimated fair value
of such net assets reflected as goodwill. Additionally, certain costs directly
related to the acquisition will be reflected as additional purchase price in
excess of the net assets acquired. Cablevision has not yet determined whether
the new basis of the net assets of Clearview will be recorded on Clearview's
separate financial statements. Should Cablevision record such amounts on such
separate financial statements, the increase in net assets would result
principally in the recording of goodwill, which would be amortized over future
periods.
The Pro Forma Combined Financial Information is provided for comparative
purposes only. It does not purport to be indicative of the results that actually
would have occurred if the acquisitions of the UA I Theaters, the CJM Theaters,
the Nelson Ferman Theaters, the Other 1997 Acquisitions and the 1998
Acquisitions had been consummated on the dates indicated or that may be obtained
in the future. The Unaudited Pro Forma Combined Financial Information should be
read in conjunction with the notes thereto, the financial statements of the UA I
Theaters, the CJM Theaters, and the Nelson Ferman Theaters and the notes
thereto, included elsewhere herein, and Clearview's consolidated financial
statements and the notes thereto, included elsewhere herein.
33
39
UNAUDITED PRO FORMA COMBINED BALANCE SHEET
AS OF JUNE 30, 1998
(DOLLARS IN THOUSANDS)
PRO FORMA
-----------------------------
HISTORICAL PRO FORMA PRO FORMA
CLEARVIEW ADJUSTMENTS AS ADJUSTED
---------- ------------ -----------
ASSETS
Current assets:
Cash and cash equivalents, including escrow deposit...... $21,240 $ (5,228)(1) $16,012
Inventories.............................................. 187 187
Other current assets..................................... 559 559
------- ---------- -------
Total current assets.................................. 21,986 (5,228) 16,758
Property, equipment and leaseholds, net.................... 41,283 2,535(2) 43,818
Intangible assets, net..................................... 33,200 2,456(2) 35,656
Other non-current assets................................... 804 (513)(3) 291
------- ---------- -------
$97,273 $ (750) $96,523
======= ========== =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued expenses.................... 6,283 6,283
------- -------
Total current liabilities............................. 6,283 6,283
Senior Notes............................................... 80,000 80,000
Class B Redeemable Preferred Shares........................ 750 (750)(4)
Stockholders' equity:
Undesignated Preferred Shares, 2,475,697 shares
authorized............................................ -- --
Class A Preferred Shares, par value $.01, 1,303 shares
authorized, 779 shares issued and outstanding......... -- --
Class C Preferred Shares, par value $.01, 3,000 shares
authorized, issued and outstanding.................... -- --
Common Stock, par value $.01, 10,000,000 shares
authorized 2,304,802 shares issued and outstanding.... 23 23
Additional paid-in capital............................... 18,231 18,231
Accumulated deficit...................................... (8,014) (8,014)
------- ---------- -------
Total stockholders' equity............................ 10,240 10,240
------- ---------- -------
$97,273 $ (750) $96,523
======= ========== =======
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NOTES TO UNAUDITED PRO FORMA COMBINED BALANCE SHEET
AS OF JUNE 30, 1998
(1) Cash and cash equivalents, including escrow deposit, has been adjusted for
the following (in thousands):
- Redemption of Class B Preferred Shares.................. (750)
- Purchase price of the Subsequent Acquisitions........... (2,213)
- Purchase of real estate formerly under lease............ (1,150)
- Long Island Purchase.................................... (1,115)
-------
Net change in cash.......................................... $(5,228)
=======
Cash and cash equivalents includes $750,000 which is restricted and which
is held in escrow to fund the contingent additional consideration to be
paid to a seller in connection with the acquisition of the CJM Theaters.
(2) Reflects the allocation of purchase price paid (or to be paid in the case of
the Long Island Purchase) in connection with the following, based on the
estimated fair values of the assets acquired (or to be acquired), which
includes only land, buildings and improvements or leasehold interests,
furniture and equipment and intangible assets.
BALA WEST LONG
CYNWYD MILLBURN LIVINGSTON MILFORD ISLAND TOTAL
------- -------- ---------- ------- ------ ------
Land..................... $ 150 $ 150 $ 300
Buildings and
improvements........... 600 600 1,200
Leasehold interest and
improvements........... $ 29 $ 39 68
Furniture and
equipment.............. 207 118 175 128 $ 339 967
---- ------- ------ ---- ------ ------
Total property,
equipment and
leaseholds, net... 236 868 925 167 339 2,535
Covenant non-compete..... 10 60 70
Goodwill................. 467 282 125 283 1,229 2,386
---- ------- ------ ---- ------ ------
Total intangible
assets............ 477 282 125 283 1,289 2,456
---- ------- ------ ---- ------ ------
Total purchase price..... $713 $ 1,150 $1,050 $450 $1,628 $4,991
==== ======= ====== ==== ====== ======
(3) Reflects the elimination of escrow deposit relating to the Long Island
Purchase which will be applied against the purchase price and allocated to
property, equipment, leasehold and intangible assets for these theaters.
(4) Reflects the application of the proceeds from the Notes Offering to repay
indebtedness and to redeem Class B Preferred Stock of $750,000.
35
41
UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1997
(DOLLARS IN THOUSANDS)
HISTORICAL PRO FORMA
---------------------------------------------------------- -----------
OTHER
NELSON COMPLETED PRO FORMA PRO FORMA
CLEARVIEW UA I(1) CJM(2) FERMAN(3) ACQUISITIONS(4) ADJUSTMENTS COMBINED
--------- ------- ------ --------- --------------- --------------- -----------
Theater revenues
Box office................... $12,926 $2,599 $4,382 $4,594 $11,203 $35,704
Concession................... 3,914 759 1,259 1,095 3,207 $1,264(5) 11,498
Other........................ 422 178 15 96 464 1,175
------- ------ ------ ------ ------- ------- ---------
17,262 3,536 5,656 5,785 14,874 1,264 48,377
------- ------ ------ ------ ------- ------- ---------
Operating expenses
Film rental and booking
fees....................... 6,168 1,167 1,999 1,990 5,201 (278)(6) 16,247
Cost of concession sales..... 635 126 241 433 446(5) 1,881
Theater operating expenses... 6,591 1,288 2,101 1,768 6,400 13(7) 18,161
General and administrative
expenses................... 1,131 181 145 820 647 (75)(8) 2,849
Depreciation and
amortization............... 2,051 132 242 356 988 2,276(9) 6,045
------- ------ ------ ------ ------- ------- ---------
16,576 2,894 4,728 4,934 13,669 2,382 45,183
------- ------ ------ ------ ------- ------- ---------
Operating income (loss)........ 686 642 928 851 1,205 (1,118) 3,194
Interest expense, net.......... 2,015 306 191 176 324 3,307(10) 6,319
Provision for income taxes..... 26 (26)
------- ------ ------ ------ ------- ------- ---------
Net income (loss).............. $(1,329) $ 336 $ 711 $ 675 $ 881 $(4,399) $ (3,125)
======= ====== ====== ====== ======= ======= =========
Basic and diluted loss per
share(11).................... $ (1.03)
PRO FORMA
------------------------
PRO FORMA
NOTES PRO FORMA
OFFERING AS
ADJUSTMENT ADJUSTED
---------- ----------
Theater revenues
Box office................... $35,704
Concession................... 11,498
Other........................ 1,175
---------- -------
48,377
---------- -------
Operating expenses
Film rental and booking
fees....................... 16,247
Cost of concession sales..... 1,881
Theater operating expenses... 18,161
General and administrative
expenses................... 2,849
Depreciation and
amortization............... 6,045
---------- -------
45,183
---------- -------
Operating income (loss)........ 3,194
Interest expense, net.......... 1,406(10) 7,725
Provision for income taxes.....
---------- -------
Net income (loss).............. $ (1,406) $(4,531)
========== =======
Basic and diluted loss per
share(11).................... $ (2.79)
36
42
NOTES TO UNAUDITED PRO FORMA
COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1997
(1) Derived from the unaudited financial statements of United Artists Theaters
at Bronxville, Larchmont, Wayne, New City and Mamaroneck for the period
from January 1, 1997 through September 12, 1997, the date of acquisition of
the UA I Theaters.
(2) Derived from the audited combined financial statements of the CJM Theaters
at Kin-Mall, Middlebrook, Cedar Grove and Bellevue for the period from
January 1, 1997 through September 30, 1997 and the unaudited results for
the period from October 1, 1997 through December 11, 1997.
(3) Derived from the audited combined financial statements of Nelson Ferman
Theaters at Parsippany and Roxbury for the period from January 1, 1997
through September 30, 1997 and the unaudited combined financial statements
for the period from October 1, 1997 through the acquisition date of
November 21, 1997.
(4) Other Completed Acquisitions includes combined results of the Other 1997
Acquisitions and the 1998 Acquisitions. The historical results were derived
from:
(a) Unaudited historical financial information of the Roslyn Cinemas in
Roslyn, NY for the period from January 1, 1997 through the acquisition
date of November 3, 1997.
(b) Unaudited historical financial information for Edison Cinemas in
Edison, NJ and Woodbridge Cinemas in Woodbridge, NJ for the period
from January 1, 1997 through the acquisition dates of December 12,
1997.
(c) Unaudited historical financial information for Clairidge Cinemas in
Montclair, NJ; Manhasset Cinemas in North Hempstead, NY; Babylon
Cinemas in Babylon, NY; and Cobble Hill Cinemas in Brooklyn, NY for
the year ended December 31, 1997.
(d) Unaudited historical financial information of the Great Neck Squire
Cinemas in Great Neck, NY for the twelve month period from February
14, 1997 through February 11, 1998.
(e) Unaudited historical financial information of the Franklin Square
Cinemas in Franklin Square, NY for the year ended December 31, 1997.
(f) Unaudited historical financial information of the Headquarters 10
Cinemas in Morristown, NJ for the fiscal year period from March 28,
1997 through March 27, 1998.
(g) Unaudited historical financial information of the Colony Cinemas in
Livingston, NJ and the West Milford Cinemas in West Milford, NJ for
the year ended December 31, 1997.
(h) Unaudited historical financial information of the Bala Theater in Bala
Cynwyd, PA for the year ended December 31, 1997.
(5) Reflects an increase in historical concession revenue of approximately
$1,264,000, representing revenues that were not recognized by the sellers
for the Nelson Ferman Theaters, Clairidge Cinemas, Franklin Square Cinemas
and Great Neck Squire Cinemas because each of the sellers operated the
respective concession stands through independent third party
concessionaires. The cost of concession sales of approximately $446,000 is
estimated based on the historical costs of the concession sales of
Clearview. Upon acquisition of such theaters by Clearview, theater
management began operating the concession stands, and the respective
agreements with the independent third party concessionaires were
terminated.
(6) In February 1998, Clearview employed three professionals to perform film
booking services in-house for all screens operated by Clearview and, in
March 1998, terminated its arrangements for third party film booking
services. The pro forma adjustment of approximately $278,000 in film rental
and booking fees represents amounts paid for third party film booking
services by Clearview, the Nelson Ferman Theaters and the CJM Theaters
during 1997. The pro forma adjustment to general and administrative
expenses includes an
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43
NOTES TO UNAUDITED PRO FORMA
COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1997
increase of approximately $190,000 representing costs of Clearview's three
film booking professionals assuming that such professionals were hired on
January 1, 1997. See note (8) below.
(7) Reflects a reduction of rent of $50,000 for the Roslyn Cinemas as the
application of net proceeds from the Notes Offering includes the
acquisition of the underlying fee real estate of this theater and an
increase in rent of $62,800 for the Bala Theater as the former owners owned
the property and did not charge rent to the theater.
(8) The former owners of the Franklin Square Cinemas, the Cobble Hill Cinemas
and the CJM Theaters provided management advisory services to the theaters
and received compensation for such services of approximately $100,000,
$100,000 and $70,000, respectively during the year ended December 31, 1997.
Upon acquisition of these theaters, the owner/manager of each no longer
provides such services to the theaters as Clearview is able to support the
operations of these seven theaters under its current management structure.
These decreases in expenses have been offset by $190,000 in general and
administrative expenses related to the employment of the three film booking
professionals referred to in note (6) above.
(9) Reflects an increase in depreciation and amortization expense of $2,276,000
for property and equipment, leasehold interests and intangible assets
acquired or to be acquired in the 1997 Acquisitions, the 1998 Acquisitions,
and the Long Island Purchase, including amortization of the excess of the
purchase price (or expected purchase price) over the estimated fair values
of the assets acquired. Clearview estimates the useful lives to be 40 years
for buildings and improvements and five to seven years for furniture and
equipment. Leasehold interests represent acquired rights to operate
theaters under previously existing operating leases. The fair value
assigned to these leasehold interests is amortized over the term of the
lease. Goodwill represents the excess of the purchase price, including
acquisition costs, over the fair value of the tangible and identifiable
intangible assets acquired which is amortized over fifteen years.
(10) Pro forma interest expense is calculated as follows:
Historical combined interest expense, net (pre-acquisition
basis)................................................. $3,012
Interest expense adjustment assuming all acquisitions were
consummated on January 1, 1997 under the Old Credit
Facility............................................... 3,307
------
Pro forma combined interest expense....................... 6,319
------
Less: amounts in historical combined interest expense for
refinanced debt........................................ (6,267)
Add: interest expense on the Notes at 10.875%............. 7,303
Amortization of debt issuance costs....................... 370
------
Pro forma Notes Offering adjustment....................... 1,406
------
Pro forma interest expense................................ $7,725
======
Pro forma interest expense has been calculated based on the amount of the
Notes which was or will be used to repay the Old Credit Facility, repay
other indebtedness, redeem the Class B Preferred Stock, pay the escrow
deposit, close the Subsequent Acquisitions and pay estimated fees and
expenses of the Notes Offering of $67.2 million. Pro forma interest expense
is not indicative of results that will actually occur upon issuance of the
$80 million of Notes as it does not include interest expense of
approximately $1,397,000 on $12.8 million of the Notes to be used for
general corporate purposes.
38
44
NOTES TO UNAUDITED PRO FORMA
COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1997
(11) Basic loss per share is calculated by dividing net loss by the weighted
average number of shares outstanding during the period. Diluted loss per
share is calculated by dividing net loss by the weighted average number of
common shares outstanding, while also giving effect to all dilutive
potential common shares that were outstanding during the period. Unaudited
pro forma basic and diluted loss per share has been calculated for the year
ended December 31, 1997 by dividing unaudited pro forma net loss available
to common shareholders by the weighted average number of shares outstanding
during the period. Unaudited pro forma net loss available to common
shareholders is computed as unaudited pro forma net loss less preferred
stock dividends. Unaudited pro forma net loss available to common
shareholders, includes recognition of non-cash preferred stock dividends on
the Class C Preferred Stock issued on April 23, 1998. The non-cash
preferred stock dividend of $1.7 million represents the amount that will be
reflected in stockholders' equity during 1998 (the period from issuance to
earliest conversion date in July 1998) based on the fair value of the
conversion feature as measured on the date of issuance. The pro forma
weighted average number of common shares outstanding used to calculate pro
forma basic and diluted loss per share for the year ended December 31, 1997
is 2,304,802 shares.
39
45
UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1998
(DOLLARS IN THOUSANDS)
HISTORICAL PRO FORMA
--------------------------- --------------------------------------------------
PRO FORMA PRO FORMA
1998 ACQUISITION PRO FORMA OFFERING PRO FORMA
CLEARVIEW ACQUISITIONS(1) ADJUSTMENTS COMBINED ADJUSTMENT AS ADJUSTED
--------- --------------- ----------- --------- ---------- -----------
Theater revenues
Box office..................... $13,645 $2,698 $16,343 $16,343
Concession..................... 4,591 737 137(2) 5,465 5,465
Other.......................... 590 23 613 613
------- ------ ----- ------- ----- -------
18,826 3,458 137 22,421 22,421
------- ------ ----- ------- ----- -------
Operating expenses
Film rental and booking fees... 6,529 1,346 (46)(3) 7,829 7,829
Cost of concession sales....... 660 91 44(2) 795 795
Theater operating expenses..... 7,140 1,695 (28)(4) 8,807 8,807
General and administrative
expenses.................... 1,670 109 (89)(5) 1,690 1,690
Depreciation and
amortization................ 2,883 148 397(6) 3,428 3,428
------- ------ ----- ------- ----- -------
18,882 3,389 278 22,549 22,549
------- ------ ----- ------- ----- -------
Operating income (loss).......... (56) 69 (141) (128) (128)
Interest expense, net............ 2,626 117 449(7) 3,192 595(7) 3,787
------- ------ ----- ------- ----- -------
Net loss from continuing
operations(8).................. $(2,682) $ (48) $(590) $(3,320) $(595) $(3,915)
------- ------ ----- ------- ----- -------
Basic and diluted loss per
share(9)....................... $ (2.71) $ (1.67)
40
46
NOTES TO UNAUDITED PRO FORMA
COMBINED STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1998
(1) The historical results of the 1998 Acquisitions were derived from:
(a) Unaudited historical financial information for Clairidge Cinemas in
Montclair, NJ for the period from January 1, 1998 through the
acquisition date of February 12, 1998.
(b) Unaudited historical financial information for Manhasset Cinemas in
North Hempstead, NY and Babylon Cinemas in Babylon, NY for the period
from January 1, 1998 through the acquisition date of March 6, 1998.
(c) Unaudited historical financial information for the period from January
1, 1998 through the acquisition date of June 17, 1998 for Franklin
Square Cinemas in Franklin Square, NY and the Great Neck Squire Cinemas
in Great Neck, NY.
(d) Historical financial information for Cobble Hill Cinemas in Brooklyn,
NY for the period from January 1, 1998 through the acquisition date of
March 23, 1998 has not been included as no financial information was
available.
(e) Unaudited historical financial information for the period from January
1, 1998 through the acquisition date of June 24, 1998 for the
Headquarters 10 Cinemas in Morristown, NJ.
(f) Unaudited historical financial information for the six months ended
June 30, 1998 of the Colony Cinemas in Livingston, NJ, and the West
Milford Cinemas in West Milford, NJ.
(g) Historical financial information for the Bala Theater in Bala Cynwyd,
PA for the six months ended June 30, 1998 has not been included as no
financial information was available.
(2) Reflects an increase in historical concession revenue of approximately
$137,000, representing revenues that were not recognized by the sellers, for
the Clairidge Cinemas, Franklin Square Cinemas and Great Neck Squire Cinemas
because each of the sellers operated the respective concession stands
through independent third party concessionaires. The cost of concession
sales of approximately $44,000 is estimated based on the historical costs of
the concession sales of Clearview. Upon acquisition of such theaters by
Clearview, theater management began operating the concession stands and the
respective agreements with the independent third party concessionaires have
been terminated.
(3) In February 1998, Clearview employed three professionals to perform film
booking services in-house for all screens operated by Clearview and, in
March 1998, terminated its arrangements for third party film booking
services. The pro forma adjustment of approximately $46,000 in film rental
and booking fees represents amounts paid for third party film booking
services by Clearview during 1998. The pro forma adjustment to general and
administrative expenses includes an increase of approximately $48,000
representing costs of Clearview's three film booking professionals assuming
that such professionals were hired on January 1, 1997.
(4) Reflects a reduction of rent of $28,000 for the Roslyn Cinemas as the
application of net proceeds of the Offering includes the acquisition of the
underlying fee real estate of this theater.
(5) The net decrease in general and administrative expenses is due to management
advisory services provided by the former owner of the Franklin Square
Cinemas, offset by the addition of film booking professionals for the six
months ended June 30, 1998 as more fully described in note (3) above and in
note (8) to the Unaudited Pro Forma Combined Statement of Operations for the
year ended December 31, 1997.
(6) Reflects an increase in depreciation and amortization expense of $397,000
for property and equipment, leasehold interests and intangible assets
acquired in connection with the 1998 Acquisitions and the Long Island
Purchase, including amortization of the excess of the purchase price over
the estimated fair values of the assets acquired. Clearview estimates the
useful lives to be 40 years for buildings and improvements and five to seven
years for furniture and equipment. Leasehold interests represent acquired
rights to operate
41
47
NOTES TO UNAUDITED PRO FORMA
COMBINED STATEMENT OF OPERATIONS--(CONTINUED)
FOR THE SIX MONTHS ENDED JUNE 30, 1998
theaters under previously existing operating leases. The fair value assigned
to these leasehold interests is amortized over the term of the lease.
Goodwill represents the excess of the purchase price, including acquisition
costs, over the fair value of the tangible and identifiable intangible
assets acquired which is amortized over fifteen years.
(7) Pro forma interest expense is calculated as follows:
Historical combined interest expense, net (pre-acquisition
basis).................................................... $2,743
Interest expense adjustment assuming all acquisitions were
consummated on January 1, 1997 under the Old Credit
Facility.................................................. 449
------
Pro forma combined interest expense, net.................... 3,192
------
Less: amounts in historical combined interest expense for
refinanced debt........................................... (2,835)
Add: interest expense on the Notes at 10.875%............... 3,266
Amortization of debt issuance costs......................... 164
------
Pro forma Notes Offering adjustment......................... 595
------
Pro forma interest expense.................................. $3,787
======
Pro forma interest expense has been calculated based on the amount of the
Notes which was or will be used to repay the Old Credit Facility, repay other
indebtedness, redeem the Class B Preferred Stock, pay the escrow deposit,
close the Great Neck/Franklin Square Acquisition, the AMC Acquisition and the
Subsequent Acquisitions, purchase the underlying leases of five theaters
formerly operated under agreements with the previous owners and pay fees and
expenses of the Notes Offering of $67.2 million. Pro forma interest expense
is not indicative of results that will actually occur upon issuance of the
$80 million of Notes as it does not include interest expense of approximately
$699,000 on the $12.8 million of the Notes to be used for general corporate
purposes.
(8) The historical results of operations of Clearview does not include an
extraordinary loss of approximately $2,030,000 resulting from the repayment
of the Old Credit Facility. The extraordinary loss includes a prepayment
penalty of $410,000 and write-off of unamortized debt discount and debt
issuance costs of approximately $242,000 and $1,378,000, respectively.
(9) Basic loss per share is calculated by dividing net loss by the weighted
average number of shares outstanding during the period. Diluted loss per
share is calculated by dividing net loss by the weighted average number of
common shares outstanding, while also giving effect to all dilutive
potential common shares that were outstanding during the period. Unaudited
pro forma basic and diluted loss per share has been calculated for the six
months ended June 30, 1998 by dividing unaudited pro forma net loss
available to common shareholders by the weighted average number of shares
outstanding during the period. Unaudited pro forma net loss available to
common shareholders is computed as unaudited pro forma net loss less
preferred stock dividends. The pro forma weighted average number of common
shares outstanding used to calculate pro forma basic and diluted loss per
share for the six month period ended is 2,304,802 shares of Common Stock.
42
48
SELECTED HISTORICAL FINANCIAL DATA
The following summary financial data should be read in conjunction with
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the historical consolidated financial statements, including the
notes thereto, appearing elsewhere in this Prospectus. The Statement of
Operations Data for the year ended December 31, 1997 presented below are derived
from Clearview's consolidated financial statements audited by
PricewaterhouseCoopers, independent accountants, whose report covering
Clearview's consolidated financial statements as of December 31, 1997 and for
the year then ended and the related financial statements are included elsewhere
herein. The Statement of Operations Data for the years ended December 31, 1996
and 1995 presented below are derived from Clearview's consolidated financial
statements audited by Wiss & Company, LLP, independent accountants, whose report
covering Clearview's consolidated financial statements as of December 31, 1996
and 1995 and for the years then ended and the related financial statements are
included elsewhere herein. The Statement of Operations Data for the periods
ended as of June 30, 1998 and 1997 included in the following selected historical
financial data have been derived from financial statements of Clearview that
have not been audited, but that, in the opinion of the management of Clearview,
reflect all adjustments necessary for the fair presentation of such data for the
interim periods. Operating Data presented below have been derived from other
records of the Company.
SIX MONTHS ENDED JUNE 30, YEAR ENDED DECEMBER 31,
------------------------- ------------------------------------
1998 1997 1997(1) 1996(1) 1995
---------- ----------- ---------- ---------- --------
(DOLLARS IN THOUSANDS EXCEPT OPERATING DATA AND PER SHARE DATA)
STATEMENT OF OPERATIONS DATA:
Theatre revenues:
Box office................. $ 13,645 $ 4,709 $ 12,926 $ 6,195 $ 1,759
Concession................. 4,591 1,338 3,914 1,861 555
Other...................... 590 141 422 142 31
---------- -------- ---------- ---------- --------
Total...................... 18,826 6,188 17,262 8,198 2,345
---------- -------- ---------- ---------- --------
Operating expenses:
Film rental and booking
fees.................... 6,529 2,189 6,168 3,022 824
Cost of concession sales... 660 221 635 279 99
Theatre operating
expenses................ 7,140 2,449 6,591 3,298 1,078
General and administrative
expenses................ 1,670 405 1,131 590 375
Depreciation and
amortization............ 2,883 798 2,051 635 100
---------- -------- ---------- ---------- --------
Total...................... 18,882 6,062 16,576 7,824 2,476
---------- -------- ---------- ---------- --------
Operating income (loss)...... (56) 126 686 374 (131)
Interest expense............. 2,626 724 2,015 592 85
---------- -------- ---------- ---------- --------
Loss before extraordinary
item....................... $ (2,682) $ (598) $ (1,329) $ (218) $ (216)
Extraordinary item--loss on
redemption of debt......... (2,030) -- -- -- --
---------- -------- ---------- ---------- --------
Net loss..................... (4,712) (598) (1,329) (218) (216)
========== ======== ========== ========== ========
Basic and diluted loss per
share(2)................... $ (2.71) $ (.33) $ (1.03) $ (.29) $ (.36)
========== ======== ========== ========== ========
Ration of earnings to fixed
charges(3)................. -- -- -- --
Deficiency of earnings
available to cover fixed
charges.................... $ (2,683) $ (1,370) $ (218) $ (216)
43
49
SIX MONTHS ENDED JUNE 30, YEAR ENDED DECEMBER 31,
------------------------- ------------------------------------
1998 1997 1997(1) 1996(1) 1995
---------- ----------- ---------- ---------- --------
(DOLLARS IN THOUSANDS EXCEPT OPERATING DATA AND PER SHARE DATA)
OPERATING DATA:
Box office margin(4)......... 52.2% 53.5% 52.3% 51.2% 53.2%
Concession margin(5)......... 85.6% 83.5% 83.8% 85.0% 82.2%
Number of theatres........... 40 16 31 16 7
Number of screens............ 193 64 148 60 21
Attendance................... 2,487,000 892,000 2,322,063 1,167,409 315,406
Average ticket price(6)...... $ 5.49 $ 5.28 $ 5.57 $ 5.31 $ 5.58
Average concession revenue
per patron(7).............. $ 1.85 $ 1.50 $ 1.69 $ 1.59 $ 1.76
CASH FLOWS FROM:
Operating activities......... $ 1,716 $ 538 $ 3,934 $ 1,147 $ 119
Investing activities......... (18,128) (1,494) (33,647) (7,295) (1,239)
Financing activities......... 36,005 963 30,608 6,723 853
AS OF JUNE 30, 1998
-------------------
HISTORICAL
-------------------
(UNAUDITED)
BALANCE SHEET DATA:
Cash and cash equivalents................................... $21,240
Total assets................................................ 97,273
Total long-term debt, including current maturities.......... 80,000
Redeemable preferred stock.................................. 750
Total stockholders' equity.................................. 10,240
- ---------------
(1) See Note 2 of the Notes to Consolidated Financial Statements of Clearview
Cinema Group, Inc. for the year ended December 31, 1997 with respect to its
acquisitions in 1996 and 1997.
(2) Basic loss per share is calculated by dividing net loss available for common
stock by the weighted average number of common shares outstanding during the
period. Diluted loss per share is calculated by dividing net loss by the
weighted average number of common shares outstanding, while also giving
effect to all dilutive potential common shares that were outstanding during
the period.
(3) The ratio of earnings to fixed charges is computed by dividing operating
income (loss) before fixed charges by fixed charges. Fixed charges is
calculated as interest expense, including capitalized interest, plus
one-third of rental expense. Management believes one-third of rental expense
represents an appropriate portion of the interest factor.
(4) Box office margin represents total box office revenues less film rental and
booking fees divided by total box office revenues.
(5) Concession margin represents total concession revenues less cost of
concession sales divided by total concession revenues.
(6) Average ticket price represents total box office revenue divided by
attendance.
(7) Average concession revenue per patron represents concession revenue divided
by attendance.
44
50
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of Clearview's results of operations
and financial condition should be read in conjunction with the information set
forth in the financial statements and the notes thereto included elsewhere in
this Proxy Statement/Prospectus.
OVERVIEW
Since the inception of its business in December 1994, when Clearview
acquired the right to operate four theaters with eight screens, through June 30,
1998, Clearview had acquired the right to operate an additional 35 theaters with
173 screens, had added seven screens to three existing theaters and had
constructed a new five-screen theater in an existing building, resulting in a
total of 40 theaters and 193 screens operated by Clearview at June 30, 1998.
Clearview operated 16 theaters with 64 screens as of June 30, 1997. Clearview
expects that its future revenue growth will be derived primarily from the
acquisition of additional theaters, the addition of screens to existing theaters
and the development of new theaters. In order to fund its plans for continued
growth, Clearview may need to seek additional debt or equity financing. Failure
to obtain any such financing could require Clearview to significantly curtail
its acquisition activities. Clearview has had no theater closings since
inception.
On August 13, 1998, the Company announced that it had entered into the
Merger Agreement pursuant to which Clearview would be acquired by Cablevision.
Clearview's revenues are predominantly generated from box office receipts,
concession sales and on-screen advertising. Direct theater costs include film
rental and the cost of concessions. Other theater operating expenses consist
primarily of theater labor and related fringe benefit costs and occupancy costs
(including rent and/or real estate taxes, utilities, repairs and maintenance,
cleaning costs and supplies). Film rental costs are directly related to the
popularity of a film and the number of weeks the film has run. Film rental costs
generally decline as a percentage of box office receipts the longer a film has
been showing. Because certain concession items, such as fountain drinks and
popcorn, are purchased in bulk and not prepackaged for individual servings,
Clearview has significant gross profit margins on those items.
General and administrative expenses consist primarily of corporate overhead
costs, such as management and office salaries and related fringe benefits costs,
professional fees, insurance costs and general office expenses. Clearview
believes that its current internal controls and management information system
will allow Clearview to expand its number of screens significantly without
incurring proportionate increases in general and administrative expenses.
Clearview's management information system has on-line capabilities to collect
information concerning box office receipts, ticketing, concession sales,
inventory control and booking. This system allows Clearview to closely track and
manage box office and concession revenues.
During the six months ended June 30, 1998, Clearview purchased the
Clairidge Cinemas in Montclair, New Jersey (6 screens) for $2.1 million in cash
and 14,782 shares of Common Stock; the Manhasset Cinemas in North Hempstead, NY
(3 screens) and the Babylon Cinemas in Babylon, NY (3 screens) for an aggregate
of $1.5 million in cash; the Cobble Hill Cinemas in Brooklyn, NY (5 screens) for
$2.2 million in cash; the Great Neck Squire Cinemas in Nassau, NY (7 screens)
and the Franklin Square Cinemas in Suffolk, NY (6 screens) for $6.5 million in
cash; and the Headquarters 10 Cinema in Morristown, NJ (10 screens) for $2.8
million in cash. In the first three months of 1998, Clearview also leased the
Millburn Twin Cinemas in Millburn, New Jersey (2 screens) and The Screening Zone
in Montclair, New Jersey (2 screens). The acquisition and lease of these
additional theaters increased Clearview's total number of theaters to 40 and its
screen count to 193, as of June 30, 1998.
RESULTS OF OPERATIONS
COMPARISON OF SIX MONTHS ENDED JUNE 30, 1998 AND JUNE 30, 1997
Total Revenues. Total revenues for the six months ended June 30, 1998 and
1997 were $18,825,637 and $6,187,810, respectively. The increase in revenues of
204.2% was primarily due to the operation of the theaters acquired in the third
and fourth quarters of 1997 and in the first two quarters of 1998. Box office
receipts for the
45
51
six months ended June 30, 1998 were $13,644,849 and $4,708,854, respectively.
The increase in box office receipts of 189.8% resulted primarily from the
increase in attendance of 178.8% to approximately 2,487,000 for the six months
ended June 30, 1998 from 892,000 attendees in the comparable 1997 period. Total
concession sales for the six months ended June 30, 1998 and 1997 were $4,591,268
and $1,337,821, respectively. The increase in concession sales of 243.2% was
primarily due to the increase in the number of theaters operated. Other
revenues, which consist primarily of advertising revenue and rental income on
fee-owned properties, were $589,520 and $141,135 for the six months ended June
30, 1998 and 1997, respectively. The increase in other revenues of 317.7% is the
result of operating additional theaters during 1998, and an increase in
Clearview's on-screen advertising, which provided for increased commission rates
in 1998.
Film Rental Fees. Film rental fees increased by 198.3% to $6,529,384 for
the six months ended June 30, 1998 from $2,188,700 for the six months ended June
30, 1997. The increase was principally due to the operation of additional
theaters, as previously discussed. Film rental fees as a percentage of box
office receipts was 47.9% for the six months ended June 30, 1998, as compared to
46.5% for the same 1997 period. The increase was due to weak film product in the
second quarter, along with high rental costs for that product and unusually high
film settlements in the second quarter.
Cost of Concession Sales. Cost of concession sales increased by 198.3% to
$660,148 for the six months ended June 30, 1998 from $221,278 for the six months
ended June 30, 1997. This increase was attributable primarily to the operation
of the theaters acquired in the third and fourth quarters of 1997 and in the
first two quarters of 1998. As a percentage of concession revenues, the cost of
concession sales were 14.4 % for the six months ended June 30, 1998 compared to
16.5% for the six months ended June 30, 1997. The decrease was primarily
attributable to the concession purchasing efficiencies made as a result of
achieving greater economies of scale from Clearview's growth and the
participation in a vendor rebate program.
Theater Operating Expenses. Theater operating expenses increased by 191.6%
to $7,140,267 for the six months ended June 30, 1998 from $2,448,960 for the six
months ended June 30, 1997. This increase was attributable primarily to the
operation of the theaters acquired as previously discussed. Theater operating
expenses as a percentage of total revenues decreased to 37.9% for the six months
ended June 30, 1998 compared to 39.6% for the six months ended June 30, 1997.
This decrease was attributable to Clearview's efficient management of its
controllable operating costs, and in particular, direct theater labor costs.
General and Administrative Expenses. General and administrative expenses
increased by 312.5% to $1,669,519 for the six months ended June 30, 1998 from
$404,718 for the six months ended June 30, 1997. The increase was due
principally to the hiring of personnel and related increases in salaries to
support Clearview's growth. As a percentage of total revenues, general and
administrative expenses increased to 8.9% for the six months ended June 30, 1998
compared to 6.5% for the six months ended June 30, 1997. The increase was due to
the increased expenses attributable to the establishment of in-house film buying
and legal departments in the first quarter of 1998 to support Clearview's growth
and future expansion plans, and the incurrence of outside professional costs in
connection with Clearview's first fiscal year-end since becoming a publicly
traded company.
Depreciation and Amortization. Depreciation and amortization expense
increased by 261.4% to $2,882,568 for the six months ended June 30, 1998 from
$797,707 for the six months ended June 30, 1997. The increase is a direct result
of the addition of 24 theaters through acquisition or build-out in the second
half of 1997 and first half of 1998, which significantly increased Clearview's
depreciable and amortizable assets.
Operating Income (Loss). Clearview had an operating loss of $56,249 for
the six months ended June 30, 1998, compared with operating income of $126,447
for the six months ended June 30, 1997. As a percentage of total revenues,
operating income (loss) was (0.3%) for the six months ended June 30, 1998 and
2.0% for the six months ended June 30, 1997. The increase in operating loss as a
percentage of total revenues is due to the increase in depreciation and
amortization, as a direct result of the increase in theaters, the aforementioned
increase in film rental fees, and the first quarter 1998 increase in general and
administrative expenses as explained above.
Interest Expense. Interest expense increased by 262.7% to $2,626,348 for
the six months ended June 30, 1998 from $724,146 for the six months ended June
30, 1997. The increase is due to the significant increase in
46
52
total debt outstanding during the first half of 1998 as compared to the
corresponding 1997 period, primarily to fund acquisitions. The increase in
outstanding debt was partially offset by a decrease in the interest rate under
Clearview's credit facility, from Prime + 2% to Prime + 1.5% in September 1997.
All of Clearview's debt was retired and replaced in June 1998 by the issuance of
Senior Notes bearing interest at 10.875%.
Extraordinary Item. The extraordinary item of $2,029,649 relates to the
early extinguishment of the debt under Clearview's then-existing credit facility
in June 1998.
Net Loss. Net loss increased to $4,712,246 for the six months ended June
30, 1998 from $597,699 for the six months ended June 30, 1997. The increase in
net loss was attributable primarily to substantial increases in both
depreciation and amortization expense, interest expense, and general and
administrative expenses resulting from Clearview's growth through acquisitions
and related borrowings, and the above-mentioned extraordinary item.
Loss Available for Shares. Loss Available for Common Shares reflects the
net loss, the components of which are explained above, and preferred shares
dividends of $1,392,915 for the six months ended June 30, 1998. The preferred
shares dividend is primarily a result of the April 1998 issuance of 3,000 shares
of Class C Preferred Stock, and the resulting non-cash dividend recorded through
June 30, 1998. In accordance with Emerging Issues Task Force Abstract D-60
("EITF Abstract D-60"), "Accounting for the Issuance of Convertible Preferred
Stock with a Nondetachable Conversion Feature," the intrinsic value of the
beneficial conversion feature of the Class C Preferred Stock, which is measured
as the difference between the conversion price and fair value of the common
shares on the date of issuance, is recognized as a non-cash preferred shares
dividend over the period from issuance to earliest conversion (90 days) in the
statement of changes in shareholders' equity. Based on Clearview's share price
on April 23, 1998 (issuance date), the fair value of the conversion feature is
$1,714,286, which will be reflected as a preferred share dividend over the
period from issuance through July 20, 1998, the earliest conversion date. The
amount recorded from issuance through June 30, 1998 was $1,295,238, with the
remainder to be recorded in July 1998.
YEARS ENDED DECEMBER 31, 1997 AND 1996
Total Revenues. Total revenues for 1997 increased 110.6% to $17,261,977
from $8,197,974 in 1996. The increase in box office receipts resulted primarily
from an increase in attendance of 98.9% to approximately 2,322,000 attendees in
1997 from approximately 1,167,000 attendees in 1996. This increase in attendance
is attributable primarily to Clearview's operation of the nine theaters acquired
during 1996 for a full year in 1997, as well as the operation of the 14 theaters
acquired and the one theater developed during 1997. Additionally, the average
ticket price increased from $5.31 in 1996 to $5.57 in 1997. Total concession
sales increased 110.3% for 1997 to $3,914,416 from $1,861,155 in the comparable
1996 period, primarily due to the increase in the number of theaters operated.
Film Rental and Booking Fees. Film rental and booking fees for 1997
increased 104.1% to $6,168,380 in 1997 from $3,022,377 in 1996, principally due
to the operation of additional theaters as discussed above. Film rental and
booking fees, as a percentage of box office receipts, decreased to 47.7% for the
year ended December 31, 1997 compared to 48.8% for 1996.
Cost of Concession Sales. Cost of concession sales for 1997 increased
126.9% to $634,395 from $279,549 for 1996. This increase was attributable
primarily to the operation of the additional theaters acquired in 1997 and 1996.
As a percentage of concession revenues, the cost of concession sales increased
to 16.2% in 1997 from 15.0% in 1996. This increase was attributable to the
number of theaters Clearview added at the height of the 1997 holiday season when
the majority of the concession sales are lower-margin candy sales.
Theater Operating Expenses. Theater operating expenses for 1997 increased
99.8% to $6,590,703 from $3,297,825 for 1996. This increase was attributable
primarily to the operation of the additional theaters acquired in 1997 and 1996.
As a percentage of total revenues, theater operating expenses decreased to 38.2%
in 1997 from 40.2% in 1996. The decrease, as a percentage of total revenues, was
primarily due to Clearview's ability to control and manage its variable costs,
such as labor, and the lower average per-theater fixed costs, such as
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occupancy costs, property taxes and utilities, of the theaters acquired in 1997
as compared to Clearview's other theaters.
General and Administrative Expenses. General and administrative expenses
for 1997 increased 91.7% to $1,130,855 from $589,822 in 1996. This increase was
due principally to the hiring of additional personnel and related increases in
salaries resulting from the transition from seven locations and 21 screens at
January 1, 1996 to 16 locations and 60 screens at January 1, 1997 and to 31
theaters and 148 screens at December 31, 1997. The increase was also due to the
increase in certain costs in 1997, such as professional fees, which are
typically associated with the transition from a private company to a public
company. As a percentage of total revenues, however, general and administrative
expenses for 1997 decreased to 6.6% from 7.2% for 1996. This decrease was
primarily due to Clearview's internal controls and management information system
which allowed Clearview to expand its number of screens without incurring
proportionate increases in general and administrative expenses.
Depreciation and Amortization. Depreciation and amortization expense for
1997 increased 223.0% to $2,051,163 from $635,007 in 1996. This increase was a
direct result of the 14 additional theaters acquired in 1997, which
significantly increased Clearview's depreciable and amortizable assets, as well
as the effect of a full year of depreciation and amortization on the assets of
the nine theaters acquired in 1996.
Operating Income. Operating income for 1997 increased 83.8% to $686,481
from $373,394 for 1996. As a percentage of total revenues, operating income
decreased to 4.0% for the year ended December 31, 1997, compared to 4.6% for the
year ended December 31, 1996. Operating income decreased as a percentage of
total revenues primarily due to the substantial increase in depreciation and
amortization expense, which more than tripled in 1997 over 1996, compared to
total revenues, which approximately doubled over the same period. Excluding
depreciation and amortization, increases in Clearview's other operating expenses
were less, on a percentage basis, than the growth in total revenues, as
summarized below:
PERCENTAGE
INCREASE OVER
1996
-------------
Total theater revenues................................ 110.6%
Film rental and booking fees.......................... 104.1%
Other theater operating expenses...................... 99.8%
General and administrative expenses................... 91.7%
Depreciation and amortization......................... 223.0%
Interest Expense. Interest expense increased 240.6% in 1997 to $2,015,419
from $591,722 in 1996. Clearview's borrowing rate on its credit facility
decreased from Prime +2% to Prime +1.5% in September 1997. This decrease was
offset by a significant increase in total debt outstanding during 1997 as a
result of the funding of Clearview's acquisitions.
Net Loss. Net loss for the year ended December 31, 1997 increased to
$1,328,938 from $218,328 in the comparable 1996 period. This increase in net
loss was attributable primarily to the substantial increases in both
depreciation and amortization ($1,416,156) and interest expense ($1,423,697),
together totaling over $2,800,000. These increases were due to the additional
screens operated by Clearview in 1997 and their related acquisition financing
costs, which were offset by reduced film rental costs, theater operating
expenses and general and administrative expenses, which were less, on a
percentage basis, than the growth in total revenues.
YEARS ENDED DECEMBER 31, 1996 AND 1995
Total Revenues. Total revenues for 1996 increased 249.5% to $8,197,974
from $2,345,697 for 1995. This increase in total revenues was primarily a result
of an increase in attendance of 270% to approximately 1,167,000 attendees in
1996 from approximately 315,000 attendees in 1995. The increase in attendance
occurred principally because of the addition of 39 screens during 1996 and the
first full year of operation of the 11 screens added during 1995. Revenues from
those theaters operated by Clearview throughout 1995 and 1996 increased 15.7%
from $1,541,843 to $1,783,260. This increase in same-theater revenues was
attributable primarily to an overall increase in attendance at two theaters and
the conversion from a single-screen to a triplex at another theater
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location. Average ticket prices for Clearview's theaters remained relatively
constant during 1995 and 1996. Total concession sales increased 235.5% in 1996
to $1,861,155 from $554,671 in 1995 principally for the same reasons.
Film Rental and Booking Fees. Film rental and booking fees for 1996
increased 266.9% to $3,022,377 from $823,791 for 1995. As a percentage of box
office receipts, film rental and booking fees increased to 48.8% from 46.8% for
the years ended December 31, 1996 and 1995, respectively. This increase was
primarily attributable to Clearview's acquisition of the six theaters acquired
in May and July of 1996 (film rental and booking fees as a percentage of box
office receipts are generally higher during the summer months than most of the
rest of the year).
Cost of Concession Sales. Cost of concession sales for 1996 increased
181.6% to $279,549 from $99,261 for 1995. As a percentage of concession
revenues, the cost of concession sales decreased to 15.0% from 17.9% for the
years ended December 31, 1996 and 1995, respectively. Clearview's gross margin
on concession revenues improved in 1996 when compared to 1995 as a result of
obtaining volume discounts.
Theater Operating Expenses. Theater operating expenses for 1996 increased
205.8% to $3,297,825 from $1,078,370 for 1995 primarily due to Clearview's
acquisitions during 1996. As a percentage of total revenues, theater operating
expenses decreased to 40.2% from 46.0% for the years ended December 31, 1996 and
1995, respectively. This reduction was due to Clearview's careful management of
its theater labor and fringe benefit costs and the lower average per-theater
fixed costs, such as occupancy costs, taxes and common area maintenance costs,
of the theaters acquired in 1996 as compared to Clearview's other theaters. As a
percentage of box office receipts, theater labor and fringe benefit costs
decreased to 20.9% from 23.2% for the years ended December 31, 1996 and 1995,
respectively.
General and Administrative Expenses. General and administrative expenses
for 1996 increased 57.2% to $589,822 from $375,262 for 1995. This increase was
due principally to the hiring of additional personnel and increases in salaries
resulting from the transition from seven locations and 21 screens at the
beginning of 1996 to 16 locations and 60 screens by the end of 1996. As a
percentage of total revenues, however, general and administrative expenses
decreased to 7.2% from 16.0% for the years ended December 31, 1996 and 1995,
respectively. This decrease was primarily due to Clearview's internal controls
and management information system which allowed Clearview to expand its number
of screens without incurring proportionate increases in general and
administrative expenses.
Depreciation and Amortization. Depreciation and amortization expense for
1996 increased 537.4% to $635,007 from $99,632 for 1995. This increase was
primarily a result of the acquisition of the nine theaters acquired in 1996,
which significantly increased Clearview's depreciable and amortizable assets.
Operating Income. Operating income for 1996 increased to $373,394 from an
operating loss of $130,619 for 1995. This increase in Clearview's operating
income was primarily due to certain improvements in operating efficiency, the
lower average occupancy costs per theater of the theaters acquired in 1996 as
compared to Clearview's other theaters, and an increase in general and
administrative expenses which was less, on a percentage basis, than the growth
in total revenues, offset by higher depreciation and amortization expense.
Interest Expense. Interest expense for 1996 increased 590.5% to $591,722
from $85,697 for 1995. The increase was primarily attributable to the
significant increase in Clearview's total debt during 1996, which was primarily
incurred to finance Clearview's acquisitions during that year.
Net Loss. Net loss for 1996 increased 1.0% to $218,328 from a net loss of
$216,316 for 1995. The increase in net loss was primarily due to Clearview's
acquisitions during 1996 that resulted in a significant increase in depreciation
and amortization expense, which is a non-cash expense, and a large increase in
interest expense, offset by better operating efficiencies indicated above.
LIQUIDITY AND CAPITAL RESOURCES
Clearview receives substantially all of its revenues in cash from box
office receipts and concession sales and, therefore, benefits from minimal
accounts receivable and inventory requirements. Clearview's most significant
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operating expense, film rental fees, continues to be paid to distributors 30 to
45 days following the receipt of the applicable cash ticket payments. In
addition, nearly all of Clearview's other operating expenses such as concession
purchases, theater payroll and theater rents, are paid bi-weekly or monthly,
respectively. The period between the receipt of cash from operations and the use
of that cash to pay the related expenses provides certain operating capital to
Clearview.
Since Clearview is in an industry which is capital intensive, substantially
all of its assets are non-current. Clearview's primary current asset is cash,
while inventories are relatively insignificant throughout the fiscal year.
Clearview had positive working capital of $15,702,761 at June 30, 1998 and
negative working capital of $1,766,222 at June 30, 1997, respectively. Clearview
had negative working capital of $5,334,136 at December 31, 1997 and $1,710,825
at December 31, 1996, respectively. The increase in working capital from June
30, 1997 to June 30, 1998 was attributable to an increase in cash due to the
proceeds from the Notes and Class C Preferred Stock Offerings, partially offset
by an increase in accounts payable and film rent payable to support Clearview's
additional theaters. The increases in negative working capital from 1996 to 1997
were attributable to the increase in the current portion of long-term debt used
to finance Clearview's theater acquisitions during such periods, and the
increase in film rental fees payable due to the increase in the number of
screens.
Clearview has financed its day-to-day operations principally from the cash
flow generated by its operating activities. Such cash flow totaled $1,715,484
for the six months ended June 30, 1998, as compared to $537,526 for the
comparable 1997 period, and $3,934,204 in 1997 as compared to $1,147,062 in
1996. The difference between Clearview's net losses and its cash flows from
operating activities for these periods was principally due to non-cash
depreciation and amortization expenses and increases in accounts payable and
accrued expenses. In addition, the 1998 period was impacted by the extraordinary
item related to the early extinguishment of debt.
Clearview's primary capital requirements are to fund additional theater
acquisitions and for remodeling, expansion and maintenance of existing theaters.
While Clearview has acquired fee-owned theaters from time to time, Clearview
prefers to acquire theaters as leasehold properties in order to preserve
capital. Clearview also has historically developed, and plans to continue
developing, new theaters principally by entering into long-term leases, which
provide an opportunity to share construction and development costs with the
lessor. All of Clearview's landlords are unaffiliated third parties. As of June
30, 1998, the aggregate annualized minimum lease payments for all Clearview's
theaters over the next five years after giving effect to the Subsequent
Acquisitions are as follows: 1998: $3,991,672; 1999: $4,290,069; 2000:
$4,239,306; 2001: $4,049,198; and 2002: $4,109,480.
Capital expenditures, exclusive of theater acquisitions, totaled
approximately $2,871,487 in the first six months of 1998 and $1,392,692 in the
first six months of 1997. The 1998 amount includes $700,000 related to the
purchase of the underlying real estate of a theater previously leased, and
$445,117 of construction costs related to the Mansfield Theater. During 1998
Clearview funded its capital expenditures, other than theater acquisitions,
through cash flow from operations.
Clearview's capital requirements in 1997 arose principally in connection
with theater acquisitions ($37.9 million), the renovation of acquired and
existing theaters ($2.4 million), the development of a new theater ($866,000)
and the addition of screens to an existing theater ($258,000). Capital
expenditures, exclusive of theater acquisitions, totaled approximately
$3,486,000 in 1997 and $318,000 in 1996. During 1997, Clearview funded its
capital expenditures, including theater acquisitions, through the net proceeds
of its initial public offering of approximately $7.1 million, approximately $24
million of bank borrowings, issuance of $6.0 million of subordinated debt, the
issuance of 750 Class B Preferred Stock valued at $750,000 and the issuance of
104,297 Shares, valued at approximately $1.2 million.
On June 12, 1998, Clearview received $80.0 million in aggregate gross
proceeds before fees and expenses from the Notes Offering, repaid the $40.2
million outstanding under the Old Credit Facility, and entered into the New
Credit Facility providing for a secured revolving line of credit in the
aggregate principal amount of $15.0 million. The New Credit Facility will mature
on June 12, 2003. The New Credit Facility is collateralized by substantially all
of the assets of Clearview and contains various restrictive covenants.
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In April 1998, Clearview designated a new series, consisting of 3,000
shares of its preferred stock, $.01 par value, as the Class C Preferred Stock.
Concurrently, Clearview entered into a Securities Purchase Agreement and issued
the 3,000 shares of its Class C Preferred Stock for $2.97 million in cash, net
of offering costs.
Clearview's future capital expenditures for planned maintenance will be
funded through cash flow from operations. In accordance with Clearview's
strategic plan, Clearview intends to continue to acquire theaters and is
pursuing the acquisition of additional locations. Based on Clearview's current
operations and anticipated revenue growth, management believes that cash flow
from operations and other available cash (including from the Notes Offering),
together with available borrowings under the New Credit Facility, will be
sufficient to fund Clearview's growth strategy through at least the end of 1998.
Thereafter, however, or in the event Clearview exceeds its currently anticipated
expansion plans, Clearview anticipates that it will need to seek additional debt
or equity financing to fund its growth strategy. Failure to obtain any such
financing could have a material adverse effect on Clearview's ability to achieve
its growth strategy. In the absence of additional financing, Clearview believes
that it is capable of funding its current operations (including principal and
interest payments as they come due) through internally-generated cash flow from
operations and existing debt financing.
On August 13, 1998, Clearview announced that it had entered into the Merger
Agreement among Cablevision, CCG Holdings Inc., a wholly-owned subsidiary of
Cablevision, and Clearview pursuant to which Clearview would be merged with and
into CCG Holdings, Inc. Each issued and outstanding share of common shares of
Clearview would be acquired at $24.25 per share, payable in a combination of
cash and Cablevision Class A Common Stock on the basis of 55% cash and 45%
Cablevision Class A Common Stock. The gross value of the transaction is
estimated at approximately $160 million, based on the acquisition of
approximately 3.3 million shares of Clearview Common Stock on a fully diluted
basis and the assumption of the $80 million of Notes outstanding as of August
13, 1998. Clearview made a tender offer to repurchase its 10 7/8% Senior Notes
with the funding for such repurchase to be made by Cablevision. The tender offer
expired September 17, 1998, with no holders electing to tender their Notes.
QUARTERLY RESULTS AND SEASONALITY
Historically, the most successful films have been released during the
summer months (July and August) and Thanksgiving through the year-end holiday
season. Consequently, motion picture exhibitors generally have had
proportionally higher revenues during such periods, although seasonality of
motion picture exhibition revenues has become less pronounced in recent years as
studios have begun to release major motion pictures more evenly throughout the
year. Clearview believes that its regular exhibition of first-run independent
films has contributed to a moderation in the seasonality of its own revenues as
compared to the seasonality of the revenues of some of its competitors.
Nevertheless, Clearview's revenues and income in any particular quarter will be
substantially the result of the commercial success of the particular films being
exhibited during such quarter.
EFFECTS OF INFLATION
Inflation has not had a significant impact on Clearview's operations to
date.
YEAR 2000
The Year 2000 issue is the result of computer programs being written using
two digits (rather than four) to define the applicable year. Any of Clearview's
programs that have time-sensitive software may recognize a date using "00" as
the year 1900 rather than the Year 2000, which could result in miscalculations
or system failures, causing disruption in operations, including, but not limited
to, an inability to send and receive electronic data, or to engage in routine
business activities and operations.
This issue creates risk for Clearview from unforeseen problems in its own
computer systems and from third parties with whom Clearview deals on
transactions. Clearview is in the early stages of evaluating the potential
impact of the Year 2000 on the electronic data processing and other information
systems relevant to Clearview's business, and is developing a plan to resolve
this issue. As part of that plan, Clearview recently hired an outside consulting
firm to assist in the completion of the first phase of its Year 2000 project.
Those activities, which will occur in the fourth quarter of 1998, include the
compiling of a detailed inventory of Clearview's computer
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hardware and software applications; the identification of imbedded chips in any
non-IT equipment, the development of detailed project plans to address each
component, and the development of an estimated cost for the remainder of the
project.
Clearview has had formal discussions with certain of its major suppliers
concerning their Year 2000 compliance, and intends to continue such discussions
into the fourth quarter of 1998. However, there can be no assurance that the
systems of other companies that interact with Clearview will be sufficiently
Year 2000 compliant so as to avoid an adverse impact on Clearview's operations,
financial condition and results of operations.
Clearview anticipates that it will complete its Year 2000 project,
including contingency planning, during 1999 but there can be no assurance that
Clearview will be successful in meeting this schedule. It is currently unknown
what specific potential adverse consequences could result from failure to
properly mitigate the Year 2000 problem, and in addition, Clearview is currently
unable to estimate the overall cost associated with its Year 2000 project. No
costs have been incurred to date.
BUSINESS
Clearview is a major regional first run motion picture exhibitor that
operates primarily community-based multiplex theaters in affluent suburban
communities in the New York/New Jersey metropolitan area. Clearview offers a
broad mix of first run films with a particular focus on films designed to appeal
to sophisticated moviegoers and families with younger children residing in these
communities. As of September 30, 1998, the Company had 43 theaters with a total
of 203 screens. Through additions of screens to existing theaters and new
theater development, the Company also plans to add a total of 60 new screens by
May 31, 1999. Based on the number of screens currently operated, the Company
believes that it is one of the largest motion picture exhibitors in the New
York/New Jersey metropolitan region and the second largest in New Jersey, thus
enabling it to compete effectively with the major national theater circuits in
its markets. As of September 30, 1998, approximately 70.0% of the Company's
theaters were the sole exhibitors in their film zones, and approximately 16.0%
were the leading exhibitors in their film zones.
Clearview operates clean, comfortable, visually appealing and
service-oriented theaters predominantly located in affluent towns and
communities rather than in shopping malls or near highways. The Company believes
that, in many suburban communities in the Middle Atlantic and New England
states, theaters located in town or in community-based retail centers serve
audiences that prefer the convenience and familiarity of such theaters to the
larger out-of-town megaplex theaters that appear to be the focus of the major
theater circuits. Many of the Company's target markets are in densely populated,
affluent areas consisting of numerous small municipalities with local business
districts that are well-suited to the Company's strategy of operating
community-based theaters. In many of these areas it can be difficult for theater
circuit operators to build or expand theaters into large multiplexes or
megaplexes due to a lack of affordable real estate, zoning laws and community
resistance.
Founded in 1994 with four theaters and eight screens, the Company has grown
through both acquisitions and theater development. Since that time, the Company
has completed 16 acquisitions, representing 34 theaters with a total of 170
screens, and entered into agreements to operate an additional four theaters with
a total of 13 screens. Management has successfully integrated these theaters
into its operations by reducing operating expenses and implementing new
operating standards, management controls and information systems. The Company
has also upgraded the seating, improved the sound and projection equipment,
refurbished the interior furnishings and broadened the concession offerings in
most locations. Additionally, since early 1995 the Company has added seven
screens to existing theaters and constructed a new five-screen theater in an
existing building, resulting in an aggregate of 43 theaters with a total of 203
screens as of September 30, 1998. See "Business--Existing Theaters and Pending
Acquisitions."
During the past ten years, overall movie theater attendance in the United
States has grown from 1,089 million in 1987 to 1,388 million in 1997. Admission
revenue increased from a total of approximately $4.3 billion in 1987 to
approximately $6.4 billion in 1997, or a compound annual growth rate of 4.1%.
The theatrical
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exhibition industry is fragmented. Although the eleven largest theater circuits
operated approximately 60% of the screens at May 1, 1997, 268 of the
approximately 478 remaining exhibitors operated four or fewer screens. There is
also a strong trend toward consolidation in the motion picture exhibition
industry. Two recent major transactions combined Cineplex (approximately 1,729
screens) with Sony/Loews (approximately 1,020 screens), and combined Act III
(approximately 832 screens) with Regal (approximately 2,337 screens). The
Company believes that it has an opportunity to acquire additional theaters as
the major circuits seek to divest theaters which do not fit into their strategic
plans and independent theater operators find it increasingly difficult to
compete with larger circuits.
RECENT DEVELOPMENTS
On August 13, 1998, Clearview announced that it had entered into the Merger
among Agreement Cablevision Holdings and the Company, upon the terms and subject
to the conditions of which the Company will be merged with CCG Holdings, and the
Surviving Corporation will be a wholly-owned subsidiary of Cablevision. Subject
to certain allocation and proration provisions contained in the Merger
Agreement, the Merger Agreement provides, among other things, that at the
Effective Time, (i) each outstanding share of Clearview Common Stock will be
converted into the right to receive, at the option of the holder thereof, (A)
$24.25 per share in cash or (B) the Share Conversion Number; provided, that if
such average price for Cablevision Class A Common Stock is less than $36.00, no
holders of Common Stock will have the right to elect to receive Cablevision
Class A Common Stock; (ii) each outstanding share of Class A Preferred Stock
will be converted into the right to receive, at the option of the holder
thereof, the cash consideration or the stock consideration described above, as
if the outstanding shares of Class A Preferred Stock had been converted into
shares of Common Stock; provided, that if the average price for Cablevision
Class A Common Stock described above is less than $36.00, no holders of Class A
Preferred Stock will have the right to elect to receive Cablevision Class A
Common Stock; and (iii) each outstanding share of Class C Preferred Stock will
be converted into the right to receive, at the option of the holder thereof, (A)
the amount in cash equal to $24.25 per share multiplied by the Class C
Conversion Number or (B) that number of shares of Cablevision Class A Common
Stock equal to the amount derived by multiplying the Class C Conversion Number
and the Share Conversion Number; provided, that if the average price for
Cablevision Class A Common Stock described above is less than $36.00, no holders
of Class C Preferred Stock will have the right to elect to receive Cablevision
Class A Common Stock.
Cablevision will account for the Merger using the purchase method of
accounting in accordance with the provisions of Accounting Principles Board
Opinion No. 16, "Business Combinations." Accordingly, Cablevision will record at
its cost the acquired assets less liabilities assumed, with the excess of such
cost over the estimated fair value of such net assets reflected as goodwill.
Additionally, certain costs directly related to the acquisition will be
reflected as additional purchase price in excess of the net assets acquired.
Cablevision has not yet determined whether the new basis of the net assets of
Clearview will be recorded on Clearview's separate financial statements. Should
Cablevision record such amounts on such separate financial statements, the
increase in net assets would result principally in the recording of goodwill,
which would be amortized over future periods.
Contemporaneously with the execution and delivery of the Merger Agreement,
and as a condition and inducement to Cablevision's and CCG Holdings' willingness
to enter into the Merger Agreement, the Selling Stockholders, holding shares
representing 54.7% of the total number of votes entitled to be cast by the
holders of Clearview Securities at the Special Meeting, entered into the
Stockholders Agreement with Cablevision pursuant to which such selling
Stockholders have agreed, among other things, to vote in favor of adoption of
the Merger Agreement and to deliver an irrevocable proxy to that effect to
Cablevision at its request.
The execution and delivery of the Stockholders Agreement constituted a
change in control under the Indenture pursuant to which the Notes were issued.
The Indenture provides that upon the occurrence of a Change of Control each
holder of the Notes has the right to require the Company to purchase all or any
part (equal to $1,000 or an integral multiple thereof) of such holder's Notes at
an offer price in cash equal to 101% of the aggregate principal amount thereon
plus accrued and unpaid interest and Liquidated Damages (as defined in the
Indenture) thereof, if any, to the date of purchase. Pursuant to the Merger
Agreement, Cablevision had agreed with the Company, subject to certain
conditions, to purchase any Notes required to be purchased by the Company. On
August 19, 1998, the Company mailed a Notice of Change of Control to all holders
of the Notes,
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informing such holders of their right to require the Company to purchase the
Notes. The change of control offer expired September 17, 1998, and no holders
requested that the Company purchase their Notes. If the Merger is completed, a
Change of Control will occur under the Indenture and each Holder of the Notes
will have the right to require the Company to purchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes at an offer price
in cash equal to 101% of the aggregate principal amount thereon plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the date of purchase.
On October 29, 1998, the Company commenced the Consent Solicitation to the
Proposed Amendments and to the execution of the Supplemental Indenture effecting
such Proposed Amendments to, among other things, modify or eliminate certain
restrictive covenants contained in the Indenture and pursuant to which the
Company will make a Consent Payment equal to $20 for each $1,000 of principal
amount of Notes in respect of which a Consent is validly delivered prior to the
Consent Time. The Company is also offering to purchase any and all of the Notes
for cash upon the terms and subject to the conditions set forth in the Tender
Offer. Any tender of Notes pursuant to the Tender Offer prior to the Consent
Time will also constitute the delivery of a Consent with respect to such Notes.
For Notes tendered prior to the Consent Time, the Total Consideration will be
$1,100 for each $1,000 of principal amount of the Notes, plus accrued and unpaid
interest to but excluding the settlement date, which includes the Consent
Payment. For Notes tendered after the Consent Time, no Consent Payment will be
made and the Tender Purchase Price will be $1,080 for each principal amount of
the Notes, plus accrued and unpaid interest to but excluding the settlement
date. The Consent Solicitation and Tender Offer are being made in connection
with the proposed Merger involving Cablevision. The Consent Solicitation, the
Company's obligation to pay the Consent Payments, the Proposed Amendments, the
Tender Offer and the Company's obligation to pay the Total Consideration and the
Tender Purchase Price are conditioned on, among other things, (a) the
satisfaction or waiver of all the Merger Conditions and (b) the receipt by The
Bank of New York as the Depositary of valid and unrevoked Consents from record
Holders of a majority in principal amount of the outstanding Notes. The Merger,
however, is not conditioned on the successful completion of the Consent
Solicitation or the Tender Offer or the adoption of the Proposed Amendments. The
Merger may be consummated without the adoption of the Proposed Amendments. The
Tender Offer will expire on the Tender Offer Expiration Time.
Any Consent delivered may be revoked, and any Notes tendered pursuant to
the Tender Offer may by withdrawn, at any time prior to the Consent Time. A
valid withdrawal of tendered Notes prior to the Consent Time will constitute the
concurrent valid revocation of such record Holder's related Consent. In
addition, if on December 10, 1998, the Consent Time shall have occurred and the
Tender Offer Expiration Time shall not have occurred, Holders who have tendered
Old Notes in the Tender Offer may participate in the Exchange Offer by complying
with the procedures for withdrawal of tendered Old Notes from the Tender Offer
set forth in the Consent Solicitation and Tender Offer materials and described
herein under "The Exchange Offer--Procedures for Tendering," and tendering such
withdrawn Old Notes in the Exchange Offer. Whether or not Holders have
previously tendered Old Notes in the Tender Offer, Holders may instruct the
Exchange Agent in the accompanying Letter of Transmittal to automatically tender
New Notes issued in the Exchange Offer into the Tender Offer after consummation
of the Exchange Offer. The Exchange Agent also is acting as the Depositary in
the Consent Solicitation and Tender Offer.
If the Proposed Amendments become effective, the Proposed Amendments will
be binding on all Holders that did not tender Notes in the Tender Offer,
including Holders of New Notes as well as Old Notes. Holders who do not tender
their Notes in the Tender Offer will hold their Notes under the Indenture as
modified by the Supplemental Indenture and such Holders will no longer be
entitled to the benefits of the covenants modified or eliminated by the Proposed
Amendments. The modification or elimination of restrictive covenants and other
provisions pursuant to the Proposed Amendments may permit the Company to take
actions that could increase the credit risks with respect to the Company faced
by non-tendering Holders, adversely affect the market price of the Notes that
remain outstanding or otherwise be adverse to the interest of non-tendering
Holders. For a description of the Proposed Amendments, see "Description of
Notes--the Proposed Amendments" and "Description of Notes--Indenture
Comparison." The Proposed Amendments may be revised, modified, amended or
supplemented after the date hereof, and if required at that time, a supplement
to this Prospectus will be delivered.
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OPERATING STRATEGY
The Company's objective is to expand its position as a major regional first
run motion picture exhibitor operating multiplex theaters based on strict
operating controls, principally at in-town locations or in retail centers that
are the focus of community life. The following are the key elements of the
Company's operating strategy:
Maintain and Expand Strong Regional Focus. Based on the number of screens
currently operated, the Company believes that it is one of the largest motion
picture exhibitors in the New York/New Jersey metropolitan region and is the
second largest in New Jersey, thus enabling it to compete effectively with the
major national theater circuits in its markets. In addition, at September 30,
1998, based on the number of screens currently operated, the Company is the
leading motion picture exhibitor in such upscale suburban areas as Morris
County, New Jersey; Essex County, New Jersey; and the North Shore of Long
Island. The Company seeks to continue to acquire or develop theaters that are
close to the Company's existing theaters and to acquire or develop similar
clusters of theaters in other target markets in the Middle Atlantic and New
England states. Approximately 80% of the Company's theaters are within a 30 mile
radius and substantially all of the Company's theaters are within a 50 mile
radius. By developing clusters of theaters, the Company generally reduces its
operating expenses through the sharing of skilled personnel and management
oversight. Also, with a large number of screens in one area, the Company can
operate separate theaters as if they were a single larger multiplex, thereby
enabling the Company to offer a wide selection of films, play successful films
longer and play films with very strong demand on a number of screens at one
time.
Dominate Film Zones. The Company seeks to operate theaters that will be the
sole or leading exhibitors in their geographic film licensing zones. A
geographic film licensing zone or "film zone" is a geographic area (typically
having a three to five mile radius in suburban markets) customarily recognized
by film distributors, in which a film is licensed for exhibition at only one
theater. As of September 30, 1998, approximately 70.0% of the Company's theaters
were the sole exhibitors in their film zones and approximately 16.0% were the
leading exhibitors in their film zones. Being the sole or leading exhibitor in a
film zone allows the Company to choose which films to exhibit from among the
various films licensed by the production companies. Management believes that
this flexibility in film selection, combined with management's experience and
expertise in selecting films for its target markets, is an important factor in
the Company's success.
Pursue Community-Based Niche Strategy. Clearview operates clean,
comfortable, visually appealing and service-oriented theaters in predominantly
affluent towns and communities rather than in shopping malls or near highways.
The Company believes that, in many suburban communities in the Middle Atlantic
and New England states, theaters located in town or in community-based retail
centers serve audiences that prefer the convenience and familiarity of such
theaters to the larger out-of-town megaplex theaters that appear to be the focus
of the major theater circuits. By concurrently showing first run commercial, art
and family-oriented films, the Company seeks to appeal to three main groups in
affluent suburban communities: baby boomers, older moviegoers and families with
younger children (10 years of age and younger). Because of its community-based
focus, Clearview can adjust its mix of films based on its sensitivity to the
tastes of the audiences in each community. Examples of successful releases at
Clearview theaters during the past twelve months include One True Thing, The
Governor, Titanic, As Good As It Gets, L.A. Confidential, Good Will Hunting, The
Apostle, Spanish Prisoner, Parent Trap, Mousehunt and Paulie. Also as part of
its community-based strategy, Clearview encourages community interaction and
involvement through regular participation in local fund-raising and charity
functions and through the hiring of local employees. Clearview believes that its
community-based, niche strategy is exemplified by the Company's motto, "We Bring
Neighbors to the Movies."
Maintain Cost Controls and Pursue Margin Enhancement. The Company seeks to
improve the profitability of its theaters by: (i) controlling theater-level
costs through centralized management; (ii) increasing efficiencies in concession
purchasing; (iii) reducing general and administrative expenses as a percentage
of revenues; and (iv) selecting films that appeal to Clearview's target
audiences but result in relatively low aggregate film rental costs as a
percentage of box office receipts. For the year ended December 31, 1997,
Clearview's box office margin (total box office revenues less film rental and
booking fees divided by total box office revenues) was 52.3% and its concession
margin (total concession revenues less cost of concession sales divided by total
concession revenues) was 83.8%. For the six months ended June 30, 1998,
Clearview's box office margin was
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52.1% and its concession margin was 85.6%. The Company believes that such
percentages compared favorably with those of the five largest motion picture
exhibitors for the year ended December 31, 1997. The Company believes that its
regional focus, centralized management and emphasis on sophisticated management
information systems also create efficiencies and reduce operating and general
and administrative expenses as a percentage of revenues for most of the theaters
it acquires.
Operate Clean, Modern Theaters which Appeal to Customer Base. Clearview's
theaters generally are multiplexes located in towns and communities rather than
in shopping malls or near highways. Each of the Company's theaters has at least
one auditorium equipped with digital sound. Most locations are surrounded by
stores and restaurants, with available parking nearby. An important aspect of
Clearview's operating strategy is to provide a clean, comfortable and visually
appealing environment, which usually includes chandeliers, a decorative
fireplace and silk flower arrangements. When Clearview acquires a theater, it
typically refurbishes the existing seats and equips them with cup holders. In
addition, Clearview will generally redecorate the lobby, upgrade the concession
stand, provide a courtesy phone so that patrons can make free local telephone
calls and selectively add digital sound. The concession stand at each theater
offers high-margin snack and food items, such as fruit, bottled water, ice
cream, cappuccino and Swiss chocolates (items designed to appeal to the
Company's generally upscale customer base), as well as more traditional theater
concession items such as soft drinks, popcorn and an assortment of candy items.
The Company has adopted a set of procedures designed to keep its theaters clean
and to ensure proper film presentation.
GROWTH STRATEGY
The Company intends to increase revenues and cash flow by: (i) selectively
acquiring theaters in its target markets; (ii) adding screens to its existing
theaters; (iii) developing new theaters; and (iv) increasing other sources of
high margin revenues.
Selectively Acquire Theater Operations. The Company believes that one of
its strengths is its ability to identify available theaters at attractive prices
in appropriate locations. Clearview identifies many of its potential
acquisitions from the following two sources: (i) major circuits seeking to
divest theaters which do not fit into their strategic plans and (ii) independent
theater operators finding it increasingly difficult to compete with larger
circuits. In addition, Clearview believes it is able to acquire these theaters
at favorable prices as compared with prices for acquisitions of theaters that
fit more closely into the strategic plans of many of the larger theater
circuits. Potential acquisition candidates typically exhibit the following
characteristics: (i) location that strengthens Clearview's position in an
existing market or, when combined with other available acquisitions or new
theater development, provides a sufficient entree into a new market; (ii)
position as the sole or a leading exhibitor in a film zone; (iii) demographics
consistent with the Company's other locations; and (iv) availability at
favorable prices. The Company believes that it has improved the profitability of
its acquired theaters by aggressively implementing cost controls and other
measures to enhance margins.
Add Screens to Existing Theaters. The Company adds screens to existing
theaters when the Company believes that such additions will increase revenues
and cash flow and provide sufficient return on capital. By adding screens, the
Company is able to offer a larger selection of films that can attract more
patrons. Depending on the configuration of an existing theater, the Company may
add screens without necessarily increasing the overall dimensions of the theater
by dividing an individual auditorium into two or more smaller auditoriums.
Dividing an auditorium in this fashion can create additional revenue with only a
marginal increase in expense. In certain instances, the Company may also add
screens by expanding into adjacent space for the buildout of additional screens.
The Company currently plans to add 20 screens to existing theaters by March 31,
1999. See "--Theater Expansion and Development."
Develop New Theaters. The Company believes that it can successfully
identify locations in suitable communities that can be developed into theaters.
The Company currently plans to develop four theaters with a total of 40 screens
in the New York/New Jersey metropolitan area and the Philadelphia main line by
May 31, 1999. See "--Theater Expansion and Development." From time to time,
opportunities are presented to Clearview by real estate developers who wish to
enhance the value of their properties with the presence of a movie theater.
These opportunities often require limited direct investment by the Company. In
addition, due to its
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reputation for operating community-based theaters, Clearview has been approached
by local governments or community development agencies of towns in the New
York/New Jersey metropolitan area and the Philadelphia main line that are
interested in revitalizing parts of their communities and believe that a movie
theater could provide an impetus to such redevelopment.
Increase Other Sources of Revenues. Clearview seeks to increase revenues
and cash flow from sources other than admissions and concessions, including
party, theater rental and on-screen advertising revenues. For the year ended
December 31, 1997, Clearview had other revenues of approximately $420,000, or
2.4% of total revenues, and for the six months ended June 30, 1998, had other
revenues of approximately $590,000, or 3.1% of total revenues. Clearview intends
to increase these high margin revenue sources in the future. For example, in May
1998 the Company initiated a children's party program designed to maximize use
of its theaters at times when they otherwise would not be operating. In
addition, the Company has recently renegotiated its advertising contracts to
increase the rates for on-screen advertising. See "--Other Sources of Revenue."
EXISTING THEATERS
Founded in 1994 with four theaters and eight screens, Clearview has since
acquired 34 theaters, entered into agreements to operate four theaters and
developed one theater, resulting in an increase in the number of Clearview
theaters to 43 and the number of Clearview screens to 203. A list of the
theaters currently operated by Clearview is set forth in the following table:
NUMBER
DATE OF INITIAL COMMUNITY/ COUNTY/ OF
ACQUISITION THEATER NAME STATE SCREENS OCCUPANCY EXPIRATION
- ---------------------- ---------------------------- ------------------- ------- --------- ------------------
Dec. 21, 1994......... Bernardsville Somerset, NJ 3 Lease Dec. 31, 1999(1)
(Bernardsville Cinema 3)
Dec. 21, 1994......... Chester Morris, NJ 6 Lease Jan. 31, 2008(1)
(Chester Cinema 6)
Dec. 21, 1994......... Madison Morris, NJ 4 Lease Dec. 31, 2000(1)
(Madison Cinema 4)
Dec. 21, 1994......... Manasquan Monmouth, NJ 1 Lease Jan. 14, 2002
(Algonquin Arts Theater)
Sept. 8, 1995......... Baldwin Nassau, NY 2 Operating Aug. 31, 2015(2)
(Grand Avenue Cinema) Contract
Sept. 8, 1995......... New Hyde Park Nassau, NY 2 Operating Aug. 31, 2022(2)
(Herricks Cinemas) Contract
Sept. 8, 1995......... Port Washington Nassau, NY 7 Operating Jan. 31, 2010(2)
(Port Washington Cinemas) Contract
May 29, 1996.......... Clifton Passaic, NJ 6 Lease Jan. 14, 2007
(Allwood Cinemas)
May 29, 1996.......... Emerson Bergen, NJ 4 Lease Dec. 31, 2006
(Emerson Quad)
May 29, 1996.......... New City Rockland, NY 6 Lease Dec. 31, 2017
(New City Cinemas)
May 29, 1996.......... Washington Twp. Bergen, NJ 3 Lease Oct. 31, 2006
(Washington Twp. Cinemas)
July 18, 1996......... Bedford Westchester, NY 2 Lease Dec. 31, 2011
(Bedford Cinemas)
July 18, 1996......... Mount Kisco Westchester, NY 5 Lease Dec. 31, 2003
(Mt. Kisco Cinemas)
Dec. 13, 1996......... Bergenfield Bergen, NJ 5 Own (3)
(Bergenfield Cinema 5)
Dec. 13, 1996......... Closter Bergen, NJ 4 Lease Aug. 31, 1999(1)
(Closter Cinema 4)
Dec. 13, 1996......... Tenafly Bergen, NJ 4 Own (3)
(Tenafly Cinema 4)
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NUMBER
DATE OF INITIAL COMMUNITY/ COUNTY/ OF
ACQUISITION THEATER NAME STATE SCREENS OCCUPANCY EXPIRATION
- ---------------------- ---------------------------- ------------------- ------- --------- ------------------
July 2, 1997.......... Summit Union, NJ 5 Lease Dec. 31, 2007(1)
(Beacon Hill 5)
Sept. 12, 1997........ Bronxville Westchester, NY 3 Own (3)
(Bronxville Cinemas)
Sept. 12, 1997........ Larchmont Westchester, NY 1 Lease Sept. 30, 2016(1)
(Larchmont Cinemas)
Sept. 12, 1997........ Mamaroneck Westchester, NY 4 Own (3)
(Mamaroneck Playhouse)
Sept. 12, 1997........ New City Rockland, NY 2 Own (3)
(Cinema 304 New City)
Sept. 12, 1997........ Wayne Passaic, NJ 4 Lease Nov. 2006(1)
(Wayne Preakness Cinemas)
Nov. 7, 1997.......... Roslyn Nassau, NY 4 Own (3)(5)(6)
(Roslyn Cinemas)
Nov. 21, 1997......... Parsippany Morris, NJ 12 Lease Dec. 2015 (1)
(Parsippany Cinema 12)
Nov. 21, 1997......... Succasunna Morris, NJ 10 Lease Dec. 31, 2019(1)
(Succasunna Cinema 10)
Dec. 9, 1997.......... Edison Middlesex, NJ 8 Lease Dec. 31, 2004(1)
(Edison Cinemas )
Dec. 9, 1997.......... Woodbridge Middlesex, NJ 5 Lease Dec. 30, 2003
(Woodbridge Cinemas)
Dec. 12, 1997......... Upper Montclair Essex, NJ 4 Lease Nov. 30, 2017(1)
(Bellevue Theaters)
Dec. 12, 1997......... Cedar Grove Essex, NJ 5 Lease May 31, 2010
(Cinema 23)
Dec. 12, 1997......... Kinnelon Morris, NJ 8 Lease April 30, 2002(1)
(Kin Mall Cinemas)
Dec. 12, 1997......... Middlebrook Monmouth, NJ 10 Lease Oct. 31, 1999(1)
(Middlebrook Galleria
Cinemas)
Jan. 29, 1998......... Millburn Essex, NJ 2 Own (3)(4)
(Millburn Twin Cinemas)
Feb. 13, 1998......... Montclair Essex, NJ 6 Lease Dec. 31, 2016(1)
(Clairidge Cinemas)
Feb. 15, 1998......... Montclair Essex, NJ 2 Operating Feb. 15, 2008
(The Screening Zone) Contract
Mar. 6, 1998.......... Manhasset Nassau, NY 3 Own (3)
(Manhasset Cinemas)
Mar. 6, 1998.......... Babylon Suffolk, NY 3 Own (3)
(Babylon Cinemas)
Mar. 23, 1998......... Cobble Hill Kings, NY 5 Lease Mar. 23, 2003(1)
(Cobble Hill Cinema)
Jun. 17, 1998......... Great Neck Nassau, NY 7 Lease May 31, 2021(1)
(Great Neck Squire Cinemas)
Jun. 17, 1998......... Franklin Square Suffolk, NY 6 Lease Dec. 31, 2014(1)
(Franklin Square Cinemas)
Jun. 24, 1998......... Morristown Morris, NY 10 Lease July 31, 2007(1)
(Headquarters 10)
Aug. 13, 1998......... Bala Cynwyd Montgomery, PA 3 Lease Aug. 31, 2018(1)
(Bala Theater)
Aug. 20, 1998......... Livingston Essex, NJ 3 Own (3)
(Colony Cinemas)
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NUMBER
DATE OF INITIAL COMMUNITY/ COUNTY/ OF
ACQUISITION THEATER NAME STATE SCREENS OCCUPANCY EXPIRATION
- ---------------------- ---------------------------- ------------------- ------- --------- ------------------
Aug. 20, 1998......... West Milford Passaic, NH 4 Lease Mar. 31, 2000(1)
(West Milford Cinemas)
- ---------------
(1) Under these leases, Clearview has one or more renewal options.
(2) The Company has an option expiring in September 2000 to acquire the
operations and leaseholds of these theaters. The Company's right to operate
these theaters will terminate if the option is not exercised.
(3) Not applicable because the theater is owned by Clearview.
(4) In August 1998, Clearview exercised its option to acquire the operations and
fee real estate interest of this theater.
(5) During the second quarter of 1998, Clearview added a screen to their theater
to increase the number of screens from three to four.
(6) In June 1998, Clearview acquired the fee real estate interest of this
theater.
THEATER EXPANSION AND DEVELOPMENT
Part of Clearview's growth strategy is theater expansion and development.
When considering theater expansion and development opportunities, Clearview
typically analyzes the demographics, including population density and household
income data, admissions revenue data for existing theaters within a 10 to 15
mile radius of the proposed site, and projected return on investment, to assess
a location's desirability for a new theater or additional screens. Clearview
also researches existing and proposed development plans of its competitors for
this purpose.
Screen Additions. Since inception, Clearview has added a total of seven
screens to three existing theaters. The following table sets forth the screens
which Clearview currently plans to add to existing theaters. There can be no
assurance that all or any of such additions will be made.
PROJECTED SCREEN ADDITIONS
NUMBER OF TOTAL
PROJECTED OPENING DATE COMMUNITY SCREENS TO BE ADDED RESULTING SCREENS
- --------------------------- --------- ------------------- -----------------
March 1999................. Mamaroneck, NY 1 5
December 1998.............. Millburn, NJ 2 4
February 1999.............. Kinnelon, NJ 3 11
December 1998.............. Larchmont, NY 2 3
January 1999............... Succasunna, NJ 6 16
March 1999................. Bronxville, NY 1 4
January 1999............... New Hyde Park, NY 2 4
January 1999............... Baldwin, NY 3 5
-- --
20 52
New Theater Development. Clearview has constructed one five-screen theater
in an existing building (the Beacon Hill 5 in Summit, New Jersey), and currently
plans to develop four theaters with a total of 40 screens in the New York/New
Jersey metropolitan area and the Philadelphia main line by May 31, 1999. The
following table sets forth Clearview's planned new theater development. There
can be no assurance that any or all of such projects will be completed or, if
completed, that the development ultimately will prove profitable.
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PLANNED NEW THEATER DEVELOPMENT
PROJECTED
NUMBER
PROJECTED OPENING DATE COMMUNITY NUMBER OF THEATERS OF SCREENS
- ---------------------- ----------------- ------------------ ----------------
December 1998......................... Anthony Wayne, PA 1 4
December 1998......................... Mansfield, NJ 1 15
March 1999............................ Carmel, NY 1 11
May 1999.............................. Bayonne, NJ 1 10
-- ---
4 40
In April 1998, Clearview issued approximately $1.5 million in Common Stock
to acquire the leasehold interest and related construction permit for the
Mansfield Theater. Construction began in May 1998 and is expected to be
completed by the end of December 1998. The estimated cost of development is $3.1
million. The Mansfield Theater will be located in Warren County, New Jersey and
currently is planned to be a 15-screen multiplex. Clearview began paying 50% of
the monthly rental payments of $29,167 as of May 1, 1998 and will become liable
for the full monthly rent on the earlier of the opening of the theater and
January 1, 1999. Currently, there is no multiplex in Warren County, New Jersey,
and Clearview is not aware of any other proposed development in that county.
In March 1998, Clearview entered into an agreement with a public real
estate investment trust, subject to obtaining certain approvals, to develop a
new 11-screen multiplex theater in the Carmel ShopRite Center in Putnam County,
New York. The agreement provides that after the theater is constructed Clearview
will add the seats, projection equipment and a concession stand at a cost of
approximately $1.1 million. Monthly rental payments of $22,500 are payable
beginning on the earlier of 120 days after the landlord completes construction
and the date that Clearview begins operating the theater. Construction is
expected to be completed by March 1999.
In February 1997, Clearview entered into an agreement with a private
developer to lease a new multiplex theater to be constructed by the landlord on
a 'turn key" basis. This theater project is currently planned to include at
least 10 screens in Bayonne, New Jersey. The landlord has agreed to install all
theater seats, projection and sound equipment, concession stands and final
finishes according to Clearview's specifications. Clearview does not expect to
incur any capital costs for this project. Currently there is no multiplex in
Bayonne, New Jersey, and the Clearview is not aware of any other proposed
development in that county. Construction is expected to be completed in May
1999, at which time a subsidiary of Clearview would be obligated to make monthly
rental payments of $41,667. The construction contract for this theater has not
yet been signed.
In June 1998, Clearview entered into an agreement with a private developer
to develop a new multiplex theater, subject to obtaining certain approvals, in
Anthony Wayne, Pennsylvania, along the Philadelphia main line. The estimated
cost of development is $750,000. The theater is expected to have four screens,
and construction is expected to be completed by December 1998. A subsidiary of
Clearview will be obligated to make monthly rental payments of $4,500 on the
earlier of 120 days after all permits have been obtained or the date that
Clearview begins operating the theater.
FILM LICENSING
Clearview's success depends to a significant extent on its knowledge of
movie-viewing trends. To augment its resources in this aspect of its business,
Clearview hired Mr. Craig Zeltner in February 1998 to serve as its Vice
President--Film. Mr. Zeltner has more than 20 years of experience as a film
buyer, particularly in film buying for Clearview's target market. Clearview also
employs two film "bookers" to assist Mr. Zeltner, and a recently hired a senior
film buyer. Clearview licenses films from distributors on a film-by-film and
theater-by-theater basis. Prior to negotiating for film licenses, senior
management of Clearview evaluates the prospects for upcoming films using many
factors, including cast, director, plot, performance of similar films, estimated
film rental costs and expected Motion Picture Association of America rating.
Clearview's success when licensing particular films depends in large part upon
its knowledge of trends, historical film preferences of the residents in the
markets
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served by its theaters, as well as on the availability of motion pictures that
Clearview believes will be successful in those markets.
Films are licensed either from film distributors owned by major film
production companies or from one of the independent film distributors that
generally distribute films for smaller production companies for exhibition at
only one theater in a particular film licensing zone. Film distributors
typically recognize geographic film licensing zones with radii of three to five
miles in suburban markets, depending primarily on population density. Of
Clearview's current theaters, approximately 70% are the sole exhibitors in their
film zones, permitting Clearview to choose which films it wishes to exhibit at
these theaters, and approximately 16% are the leading exhibitors in their film
zones.
In film zones where Clearview is the sole exhibitor, a film license is
generally obtained by Clearview after selecting a film from among those offered
and negotiating directly with its distributor. In film zones where there are
multiple exhibitors, a distributor will either require the exhibitors in the
film zone to bid for a film or will allocate films among the exhibitors in the
film zone. When films are licensed under the allocation process, a distributor
will choose which exhibitor is to be offered a movie and then that exhibitor
will negotiate film rental terms directly with that distributor. Over the past
several years, distributors have almost exclusively used the allocation process
rather than the bidding process to license their films in the New York/New
Jersey metropolitan area. When films are licensed through a bidding process,
exhibitors compete for licenses based upon the film rental fees to be paid.
Clearview currently does not bid for films in any of its film zones, although it
may be required to do so in the future.
Clearview predominantly licenses "first run" films. If Clearview believes
that a film has substantial remaining potential following its first run, it may
license that film for a "second run." Second runs enable Clearview to exhibit a
variety of films during periods in which there are few new releases and to offer
its target audience an opportunity to see a film that did not fit into
Clearview's first run schedule. Film distributors establish second run
availability on a national or market-by-market basis after a film's release from
first run theaters and generally permit each theater within a market to exhibit
that film.
Each film license typically specifies that the rental fee is based on
either a gross box office receipts formula or a theater admissions revenue
formula, depending upon which one results in the larger film rental fee. In
addition, if a distributor deems a film to be extremely promising, exhibitors
may be required to pay non-refundable guarantees of film rental fees or to make
refundable advance payments of film rental fees or both in order to obtain a
license for that film. Under a gross box office receipts formula, the
distributor receives a specified percentage of box office receipts from the
licensed film, with the percentage declining over the term of the film run.
First run commercial and family-oriented film rental fees typically begin at
approximately 70% to 50% of box office receipts for the licensed film (depending
on the type of film and its distributor) and gradually decline, over a period of
four to seven weeks, to as low as 30% of box office receipts. First run art film
rental fees and second run commercial and family-oriented film rental fees
typically begin at 35% to 40% of box office receipts for the licensed film and
often decline to 30% to 35% of box office receipts after the first week. Under a
theater admissions revenue formula (commonly known as a "90/10" clause), the
distributor receives a specified percentage (i.e., 90%) of the excess of box
office receipts for a given film over a negotiated allowance for theater
overhead expenses. Although generally not specifically contemplated by the
provisions of film licenses, the terms of a film license often are adjusted or
renegotiated subsequent to the initial release of the film.
Clearview's business is dependent upon the availability of marketable
first-run commercial, family-oriented and art motion pictures and its
relationships with distributors. Although many distributors provide first run
movies to the motion picture exhibition industry, distribution has been
dominated historically by a limited number of distributors (Warner Brothers,
Paramount, 20th Century Fox, Universal, Disney/Touchstone, MGM/ UA and
Columbia/Tri-Star) which, since 1989, have typically accounted for well over 75%
of domestic admission revenues and virtually every one of the top 25 grossing
films in a given year. No single major distributor dominates the market.
Disruption in the production of motion pictures by the major studios and/or
independent producers, poor commercial success of motion pictures or poor
relationships with distributors could have a material adverse effect upon
Clearview's business and results of operations.
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Clearview licenses films from each of the major distributors and believes
that it has good relationships with these distributors. Clearview also licenses
films from independent film distributors on a consistent basis. Because these
distributors often have difficulty licensing films at theaters that are
well-maintained and technologically up-to-date, these distributors have
generally cooperated with Clearview when it seeks to move prints, modify the
length of a film's run or change a film's rental fee. From year to year, the box
office revenues of Clearview attributable to individual distributors will vary
depending upon the films they distribute. Set forth below are the top 15 and 16
distributors to Clearview for 1996 and 1997, ranked by the number of films
shown.
DISTRIBUTORS RANKED BY NUMBER OF FILMS EXHIBITED
1996 1997
- ----------------------------------------------- -----------------------------------------------
NAME # OF FILMS NAME # OF FILMS
---- ---------- ---- ----------
Buena Vista........................ 31 Buena Vista........................ 29
Sony............................... 22 Sony............................... 27
Warner Brothers.................... 21 Warner Brothers.................... 25
Miramax............................ 20 Paramount.......................... 22
Paramount.......................... 17 20th Century Fox................... 21
20th Century Fox................... 16 Miramax............................ 18
MCA/Universal...................... 15 New Line........................... 14
MGM/UA............................. 13 MCA/Universal...................... 11
New Line........................... 9 MGM/UA............................. 7
Gramercy........................... 6 Gramercy........................... 6
Fine Line.......................... 4 Sony Classic....................... 5
Orion.............................. 4 October............................ 5
Samuel Goldwyn..................... 4 Fox Search Light................... 4
Sony Classic....................... 4 Orion.............................. 3
October............................ 3 Fine Line.......................... 3
Dream Works........................ 3
CONCESSIONS
Concession sales are generally the second largest source of revenue for
Clearview after box office receipts, representing approximately 22.7% of the
revenue for the year ended December 31, 1997 and 24.3% of revenue for the six
months ended June 30, 1998. Clearview has devoted considerable management effort
to increasing concession sales and improving concession margins. Clearview's
concession margin was 83.8% for the year ended December 31, 1997 and 85.6% for
the six months ended June 30, 1998. Clearview's efforts include implementing the
following strategies:
Tailoring product mix to customer base. Clearview's mix of concession
items reflects the preferences of its customer base. While Clearview's theaters
provide the traditional concession items such as popcorn, soda and candy,
Clearview also offers items which appeal to more upscale moviegoers. Examples of
these products include cappuccino, Swiss chocolates, fruit and bottled water.
Clearview varies its concessions by theater based on preferences of the
particular community. Clearview believes its product mix further enhances the
appeal of its theaters to its patrons by differentiating its theaters from those
of larger circuits.
Cost control. Clearview negotiates its concession supplies on a bulk rate
basis for all of its theaters. Clearview often realizes improvements in the
concession margins of acquired theaters by integrating their concession
purchasing with Clearview's existing theaters. Clearview believes that
acquisitions of additional theaters would further increase Clearview's ability
to obtain more favorable pricing from concession distributors.
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OTHER SOURCES OF REVENUE
Clearview also seeks to increase revenues and cash flow from sources other
than admissions and concessions, including party, theater rental and on-screen
advertising revenues. For the year ended December 31, 1997, Clearview had other
revenues of approximately $420,000, or 2.4% of total revenues, and for the six
months ended June 30, 1998 had other revenues of approximately $590,000, or 3.1%
of total revenues. Clearview intends to increase these high margin revenue
sources in the future. For example, in May 1998 Clearview initiated a children's
party program which is designed to maximize use of its theaters at times when
they otherwise would not be operating. Clearview also rents certain of its
theaters to special interest groups, receiving a fixed payment for the screen
rental and incremental concession income. In addition, the special interest
groups supply the films and pay the film rental costs. With respect to on-screen
advertising, Clearview sells advertising space on its screens prior to the
exhibition of films in both slide form, which typically promotes local area
businesses, and rolling stock form, which focuses more on national promotions.
The slide and rolling stock promotions are sold through third parties. Clearview
has recently renegotiated its contracts to increase the rates for slide and
rolling stock promotions.
The following table shows Clearview's other revenues for each of the last
three years and for the six months ended June 30, 1998:
YEAR ENDED DECEMBER 31,
------------------------------------------------
SIX MONTHS
ENDED
1995 1996 1997 JUNE 30, 1998
------- -------- -------- -------------
Other Revenues................. $31,895 $141,420 $421,427 $589,520
Other Revenues as a % of Total
Revenues..................... 1.4% 1.7% 2.4% 3.1%
INDUSTRY OVERVIEW
Theatrical exhibition is the primary initial distribution channel for new
motion picture releases. Clearview believes that the successful theatrical
release of a movie abroad and in "downstream" distribution channels, such as
home video and pay-per-view, network, syndicated and satellite television, is
largely dependent upon its successful theatrical release in the United States.
Clearview further believes that the emergence of new motion picture distribution
channels has not adversely affected attendance at theaters and that these
distribution channels do not provide an experience comparable to the out-of-home
experience of viewing a movie in a theater. Clearview also believes that the
public will continue to recognize the advantages of viewing a movie on a large
screen with superior audio and visual quality, while enjoying a variety of
concessions and sharing the experience with a large audience. In addition, when
compared with other forms of entertainment, such as many sporting events and
cultural events, movies remain one of the best entertainment values for
families.
The theatrical exhibition industry is fragmented. Although the 10 largest
theater circuits operated approximately 60% of the screens at May 1, 1997, 268
of the remaining approximately 478 exhibitors operated four or fewer screens.
From 1987 through 1997, the net number of indoor screens increased from
approximately 21,048 to approximately 30,825. There is a strong trend toward
consolidation in the motion picture exhibition industry. Two recent major
transactions combined Cineplex (approximately 1,729 screens) with Loews Theater
Exhibition Group (approximately 1,020 screens), and combined Act III
(approximately 832 screens) with Regal (approximately 2,337 screens).
The multiplex theater was introduced to the movie going public in the
1960's and multiplexes are now considered the industry standard. The advantages
of a multiplex format include the following: (i) the ability to play a range of
movies to fit the various tastes of the movie-going public; (ii) the ability to
accommodate the expected size of the audience for a particular movie; (iii) the
ability to run a popular movie for a longer period of time and to exhibit newer
films immediately upon their release; and (iv) the ability to show a single film
in two or more auditoriums simultaneously, thereby effectively increasing the
viewing capacity for a popular film.
Revenues for the theatrical exhibition industry are a function of theater
attendance, ticket prices, trends in movie releases and concession sales.
According to data released by the Motion Picture Association of America,
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overall movie theater attendance in the United States has grown from 1,089
million in 1987 to 1,388 million in 1997. Clearview believes that the primary
reason for year-to-year variances in attendance is the overall audience appeal
of the films released and, to a lesser extent, general economic conditions.
Admissions revenues increased from a total of approximately $4.3 billion in 1987
to approximately $6.4 billion in 1997, or a compound annual growth rate of 4.1%.
Over the same period, the average ticket price increased at a compound annual
growth rate of approximately 1.6%, whereas the U. S. Consumer Price Index
increased at a compound annual growth rate of approximately 3.4%. The following
table represents the results of a survey by the Motion Picture Association of
America outlining the historical trends in U. S. theater attendance, average
ticket prices and box office sales for the last eleven years.
YEAR ATTENDANCE AVERAGE TICKET PRICE U.S. BOX OFFICE SALES
- ---- ---------- -------------------- ---------------------
(MILLIONS) (DOLLARS IN BILLIONS)
1987.. 1,089 $3.91 $4.25
1988.. 1,085 4.11 4.46
1989.. 1,263 3.99 5.03
1990.. 1,189 4.23 5.02
1991.. 1,141 4.21 4.80
1992.. 1,173 4.15 4.87
1993.. 1,244 4.14 5.15
1994.. 1,292 4.18 5.40
1995.. 1,263 4.35 5.49
1996.. 1,339 4.42 5.91
1997.. 1,388 4.59 6.37
- ---------------
Sources: MPAA; 1989-1997 figures for attendance and average ticket prices based
on Ernst & Young survey; previous years based on CPI-W index.
From 1987 to 1997, the number of movies released remained relatively
constant, and Clearview expects that trend to continue, with some annual
variability. Clearview also believes that movies generally are being released to
a wider number of screens as studios seek to recover higher costs. Historically,
the motion picture industry was somewhat seasonal, as major film distributors
generally released the films expected to have the greatest commercial appeal
during the summer and during the Thanksgiving through year-end holiday season.
The seasonality of motion picture exhibition has become less pronounced in
recent years as studios have begun to release major motion pictures somewhat
more evenly throughout the year.
Clearview believes that certain demographic trends favor the theater
exhibition industry. Information obtained from the U.S. Bureau of Census
indicates that the number of 10 to 20 year olds in the United States, the
largest movie-going segment of the population, was projected to grow an
aggregate of 5.8% from 1996 through the year 2000. Furthermore, of particular
significance for Clearview's target audiences, according to the Motion Picture
Association of America, the number of patrons over 40 years old as a percentage
of the total movie audience has increased from approximately 20% in 1987 to
approximately 33% in 1997. According to American Demographics, film attendance
by the age groups 45-54 and 55-64 is expected to grow 14.5% and 12.2%,
respectively, in years 1996-2000 and 14.1% and 28.5% in years 2000-2006. Also
according to American Demographics, based on 1996 data, the percentage of adults
who attend movies at least once a month rises with household income.
COMPETITION
The motion picture exhibition industry is highly competitive, particularly
with respect to licensing films, attracting patrons and acquiring or developing
theaters to operate. Clearview's theaters compete with theaters operated by
national and regional circuits and by smaller independent exhibitors. Clearview
believes that the principal competitive factors with respect to film licensing
include licensing terms, seating capacity, location and reputation of an
exhibitor's theaters, quality of projection and sound equipment at an
exhibitor's theaters and an exhibitor's ability and willingness to promote
films. Competition for patrons is dependent upon factors such as
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the availability of popular films, the location of theaters, the comfort and
quality of theaters and ticket prices. Clearview believes that it competes
favorably with respect to each of these factors.
There were approximately 489 domestic motion picture exhibitors as of May
1, 1997. Motion picture exhibitors vary substantially in size, from small
independent operators of single-screen theaters to large national chains of
multi-screen theaters. Many of Clearview's larger competitors have been in
existence significantly longer than Clearview and may be better established in
the markets where Clearview's theaters are, or may in the future be, located.
Certain of Clearview's larger competitors have sought to increase the number of
theaters and screens in operation in particular markets. Such increases may
cause those markets or portions of those markets to become overscreened, which
could negatively impact the earnings of Clearview's theaters, if any, in those
markets.
Clearview analyzes the level of competition in a geographic area prior to,
and in the early stages of, the negotiation of any development or acquisition of
a theater. This analysis is critical, as many of Clearview's potential theater
locations are in well-established communities that have previously experienced
the building of large out-of-town multiplexes and the addition of screens to
in-town theaters.
Clearview's theaters also face competition from a number of other
motion-picture delivery systems, such as cable television, direct satellite
delivery, video cassettes and pay-per-view television. The impact of such
delivery systems on the motion picture exhibition industry is difficult to
determine precisely, and there can be no assurance that existing or future
delivery systems will not have an adverse impact on attendance at movie
theaters. Clearview, however, believes that the public will continue to
recognize the advantages of viewing a movie on a large screen with superior
audio-visual quality as a shared experience in a public forum and that
alternative delivery systems do not provide an experience comparable to the
out-of-home entertainment experience of attending a movie in a theater.
Clearview believes that movie theaters also face competition from other forms of
outside-the-home entertainment that compete for the public's leisure time and
disposable income. Clearview believes that movie exhibition is priced
competitively relative to other out-of-home entertainment options, such as music
concerts, sporting events and live theater.
EMPLOYEES
As of June 30, 1998, Clearview had 960 employees, of whom 22 were employed
at the corporate headquarters, 6 were district managers, 15 were salaried
theater managers and 917 were hourly employees, including 205 theater managers
and/or projectionists. Clearview employs one primary manager and one or more
relief managers at each of its theaters. In most of its theaters, each shift
(which is five to six hours) has a manager and a projectionist or a single
manager/projectionist. Generally, the theater manager serves as the
projectionist if the applicable theater has four or fewer screens. In the larger
theaters there are separate managers and projectionists. In addition,
Clearview's six district managers, each of whom also manages a theater within
his district, have certain supervisory obligations. Clearview has entered into
an agreement with the International Alliance of Theatrical Stage Employees union
that provides for a skilled projectionist for every shift at a substantial
number of its theaters. Clearview believes that it has a positive working
relationship with the union.
REGULATORY ENVIRONMENT
The distribution of motion pictures is in large part regulated by U.S.
federal and state antitrust laws and has been the subject of numerous antitrust
cases. Clearview has never been a party to any of such cases or the resulting
decrees, but its licensing operations are subject to those decrees. The consent
decrees resulting from such cases bind certain major motion picture distributors
and require the films of those distributors to be offered and licensed to
exhibitors, including Clearview, on a film-by-film and theater-by-theater basis.
Consequently, exhibitors such as Clearview cannot assure themselves of a supply
of films by entering into long-term arrangements with major distributors, but
must negotiate for licenses on a film-by-film and theater-by-theater basis.
The U.S. Americans With Disabilities Act (the "Disabilities Act") prohibits
discrimination on the basis of disability in public accommodations and
employment. The Disabilities Act became effective as to public accommodations in
January 1992 and as to employment in July 1992. Clearview will have new theaters
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constructed to be accessible to the disabled and believes that it is otherwise
in substantial compliance with all current applicable regulations relating to
accommodations for the disabled. Clearview intends to comply with any future
regulations relating to accommodating the needs of the disabled, and Clearview
currently does not anticipate that such compliance will require Clearview to
expend substantial funds.
Clearview's theater operations are also subject to U.S. federal, state and
local laws governing such matters as wages and working conditions, health and
sanitation requirements and licensing. A significant portion of Clearview's
employees are paid just above the federal minimum wage and, accordingly, further
increases in that minimum wage could increase Clearview's labor costs.
In connection with the construction, renovation and operation of its
theaters, Clearview and its contractors and landlords are required to obtain
proper building and operating permits and to comply with the other requirements
of local zoning and other laws and regulations. Clearview does not anticipate
that compliance with such laws and regulations will have a material adverse
effect on its business.
PROPERTIES
Clearview leases or otherwise operates under contract all of its theaters
other than ten theaters located in Livingston, Millburn, Tenafly and
Bergenfield, New Jersey, and Bronxville, Mamaroneck, New City, Manhasset,
Babylon and Roslyn, New York. Those ten theaters are owned by Clearview. The
theaters located in Baldwin, New Hyde Park and Port Washington, New York are
being operated under agreements pursuant to which Clearview pays rent to the
landlords and has the right to acquire the underlying leaseholds and theater
operations upon payment of an amount to be calculated based on the operating
cash flow of the theaters. This option will expire in September 2000 if not
exercised, and Clearview's right to lease the theaters would terminate in such
event. For a discussion of the Long Island Purchase, see "--Recent Financing
Transactions."
When Clearview develops a theater or negotiates directly with a landlord,
the term of the relevant lease, including all renewal options, is usually more
than 25 years. If a lease is acquired from an exhibitor, typically the lease is
assigned to Clearview and still has a substantial term. Most of Clearview's
current leases have terms, including all renewal options, of at least ten years
and provide for periodic rent increases. Only one theater that is leased by the
Clearview has a lease that expires in the next five years under which Clearview
does not have one or more renewal options or an option to purchase the theater,
and that theater is not material to Clearview's business and future operations.
All of Clearview's landlords are unaffiliated third parties. As of June 30,
1998, the aggregate annual minimum lease payments for all of Clearview's
theaters over the next five years are as follows: 1998: $4,086,000;1999:
$4,385,000; 2000: $4,334,000; 2001: $4,144,000; and 2002: $4,205,000. After
giving effect to the Subsequent Acquisitions, such aggregate annual minimum
lease payments would be: 1998: $3,991,672; 1999: $4,290,069; 2,000: $4,239,306;
2001: $4,049,198; and 2002: $4,109,480.
Clearview's corporate office is located in approximately 4,000 square feet
of space in Chatham, New Jersey, and is subject to a lease agreement, the term
of which expires on December 31, 2002.
LEGAL PROCEEDINGS
From time to time Clearview is involved in litigation in the ordinary
course of its business. Currently, Clearview does not have pending any
litigation that management believes would have a material adverse effect upon
Clearview.
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MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
Under the Company's Amended and Restated Certificate of Incorporation and
Amended and Restated Bylaws, the members of the Board of Directors are divided
into two groups; one group (the "Common Directors") is elected by the holders of
the Common Stock and the other group (the "Preferred Directors") is elected by
the holders of the Class A Preferred Stock. Further, the Common Directors are
divided into three classes, with the classes as equal in number as possible. At
each annual meeting of stockholders, Common Directors are elected for three-year
terms to succeed the Common Directors of the class whose terms are expiring. The
Preferred Directors are elected for one-year terms.
Set forth below is certain information concerning the Company's directors
and executive officers.
NAME AGE POSITION
---- --- --------
A. Dale Mayo 57 Chairman of the Board, President,
Chief Executive Officer and
Director
Paul Kay 58 Senior Vice President--Operations
Craig L. Zeltner 47 Vice President--Film, and
President--Cinema Services
Division
Sueanne Hall Mayo 51 Vice President--Management
Information Systems, Assistant
Secretary and Director
Joan M. Romine 47 Vice President--Finance, Chief
Financial Officer and Treasurer
Robert D. Lister 29 Vice President, General Counsel
and Secretary
Wayne L. Clevenger 55 Director
Robert G. Davidoff 70 Director
Philip M. Getter 61 Director
Brett E. Marks 36 Director
Denis Newman 68 Director
A. DALE MAYO has been the Chairman of the Board, President and Chief
Executive Officer and a director of the Company since its incorporation in 1994.
He was the President of Clearview Cinema Corp. from 1987 to 1993. Mr. Mayo
founded and was President of Clearview Leasing Corporation, a lessor of computer
peripherals for larger scale computer systems, from 1981 to 1987. Mr. Mayo is a
member of the Foundation of Motion Picture Pioneers and the Motion Picture Club.
He is the spouse of Sueanne Hall Mayo. Mr. Mayo is a Class III Common Director,
with a term expiring in 2000.
Clearview Cinema Corp. was formed in 1987 by Mr. Mayo and two other persons
to operate one theater and it acquired an additional three theaters over the
next several years. It was sold in 1993, after Mr. Mayo and his then-partners
were unable to agree on its future, with Mr. Mayo retaining the rights to the
Clearview name and trademark and one of those theaters through 1994.
PAUL KAY was appointed Senior Vice President--Operations on February 23,
1998 and had been the Vice President--Operations of the Company since its
incorporation. He was the vice president and general manager of Clearview Cinema
Corp. from 1987 to 1993. Prior to joining Clearview, Mr. Kay was an independent
theater owner and had held various management positions with Universal Pictures
and Paramount Pictures. Mr. Kay has over 30 years of experience in the film
industry.
CRAIG ZELTNER was appointed Vice President--Film and President of the
Company's Cinema Services Division on February 23, 1998. Prior to joining
Clearview, Mr. Zeltner was the President of Cinema Services,
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Inc., an independent film buying service, for more than 20 years. Prior to that,
Mr. Zeltner held various positions as a film buyer and in the advertising and
publicity divisions of Loews Theater, Esquire Theaters and Mid-States Theaters.
SUEANNE HALL MAYO has been the Vice President--Management Information
Systems and Assistant Secretary of the Company since 1997, and a director of the
Company since its incorporation. She joined the Company in 1994 as its Vice
President--Finance and Treasurer. Ms. Mayo was the Treasurer of Clearview Cinema
Corp. from 1987 to 1993. Ms. Mayo has more than 25 years of experience in
computerized accounting systems. She is married to A. Dale Mayo. Ms. Mayo is a
Class II Common Director, with a term expiring in 1999.
JOAN M. ROMINE has been the Vice President--Finance, Chief Financial
Officer and Treasurer of the Company since September 1998. From 1997 through
September 1998, she served as Treasurer and Chief Financial Officer of the
Company. Prior to joining the Company in 1996 as its Controller, she was the
Controller of Magic Cinemas, L.L.C. from 1995 through 1996 and Controller and
Treasurer of Hanita Cutting Tools, Inc., a U.S. subsidiary of an international
metalworking company, from 1988 through 1994.
ROBERT D. LISTER has been the Vice President, General Counsel and Secretary
of the Company since September 1998. From March 1998 to September 1998, he
served as General Counsel and Secretary of the Company. From September 1993
through March 1996, Mr. Lister was an attorney with Kelley Drye & Warren, a New
York law firm, and served as associate general counsel of Merit Behavioral Care
Corporation, a behavioral healthcare company, from March 1996 until his
employment by the Company.
WAYNE L. CLEVENGER has been a director of the Company since 1996. He has
been a managing director of MidMark Advisors, Inc., the general partner of
MidMark Equity Partners, L.P., since 1994 and a managing director of MidMark
Associates, Inc. ("MidMark Associates"), the general partner of MidMark Capital,
L.P. ("MidMark"), a small business investment company registered with the Small
Business Administration, since 1994. Mr. Clevenger has been a managing director
of MidMark Management, Inc., ("MidMark Management") a private investment
management company, since 1989. Mr. Clevenger is a Preferred Director.
ROBERT G. DAVIDOFF has been a director of the Company since 1994. He has
been a managing director of Carl Marks & Co., Inc., a general partner of CMNY
Capital II, L.P. ("CMNY"), a small business investment company registered with
the Small Business Administration and a managing director of CMCO, Inc.
("CMCO"), a New York corporation, since 1982. Mr. Davidoff also serves on the
Boards of Directors of Marisa Christina, Inc., Rex Stores, Inc., Hubco
Exploration, Inc., SIDARI Corp., Consco Enterprises, Inc., Paging Partners Corp.
and Audio Network Communications, Inc. Mr. Davidoff is a Class II Common
Director, with a term expiring in 1999.
PHILIP M. GETTER has been a director of the Company since October 1997. He
has been a Managing Director of Prime Charter Ltd. ("Prime Charter") since April
1996, and was Senior Vice President of Prime Charter for more than five years
prior thereto. Mr. Getter is a member of the League of American Theater Owners
and Producers. Mr. Getter is a Class III Common Director, with a term expiring
in 2000.
BRETT E. MARKS has been a director of the Company since its incorporation
and was its Vice President-- Department of Development from such date to 1997.
He has been an executive vice president of First New York, a realty brokerage
firm specializing in commercial leasing and investment sales, since 1987, and
the president of Marks Capital Management, a real estate management company,
since 1989. Mr. Marks is a Class I Common Director, with a term expiring in
2001.
DENIS NEWMAN has been a director of the Company since 1996. He has been a
managing director of MidMark Advisors, Inc., the general partner of MidMark
Equity Partners, L.P., since 1994; a managing director of MidMark Associates,
the general partner of MidMark, since 1994; and a managing director of MidMark
Management since 1989. Mr. Newman also serves on the Board of Directors of First
Brands Corporation. Mr. Newman is a Preferred Director.
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DIRECTOR COMPENSATION
The Company does not currently compensate its directors or reimburse them,
as such, for their expenses incurred in connection with attendance at Board of
Directors' meetings and has no current plans to change this policy. See "Certain
Transactions."
THE BOARD OF DIRECTORS
During the fiscal year ended December 31, 1997 ("Fiscal 1997"), the Board
of Directors met on one occasion and acted by unanimous written consent fourteen
times. The Board has an Audit Committee, but does not have standing compensation
or nominating committees.
The members of the Audit Committee are Messrs. A. Dale Mayo, Robert G.
Davidoff and Philip M. Getter. The Audit Committee reviews matters relating to
the quality of financial reporting and internal accounting controls and the
nature, extent and results of the audits by the Company's independent auditors,
and maintains communications between the Company's auditors and the Board of
Directors. The Audit Committee held no meetings in Fiscal 1997, and last met
April 15, 1998.
EXECUTIVE COMPENSATION
The following table sets forth information concerning the compensation of
the Company's Chairman of the Board, President and Chief Executive Officer, the
only executive officer of the Company whose annual salary and bonus exceeded
$100,000 during Fiscal 1997.
SUMMARY COMPENSATION TABLE
The following table sets forth compensation information for each of the two
fiscal years ended December 31, 1997 for the Company's Chief Executive Officer.
LONG TERM
COMPENSATION
-------------------------
ANNUAL COMPENSATION SECURITIES
----------------------------------------------- UNDERLYING ALL OTHER
NAME AND OTHER ANNUAL OPTIONS COMPENSATION
PRINCIPAL POSITION (1) YEAR SALARY ($) BONUS ($) COMPENSATION($) (3) ($)
---------------------- ---- ---------- --------- --------------- ---------- ------------
A. Dale Mayo(2)
Chairman of the Board,
Chief Executive Officer
and President 1997 120,000 104,500 -- 50,000 --
1996 99,167 37,371 -- -- --
- ---------------
(1) No other officer earned more than $100,000 in total annual salary and bonus
for either of the two fiscal years ended December 31, 1997.
(2) Since May 29, 1996, Mr. Mayo's compensation has been determined in
accordance with his employment agreement (as described below). Prior to that
date, Mr. Mayo's annual compensation was equal to 2% of the first $5,000,000
in gross revenues of the Company, plus 1% of gross revenues in excess of
$5,000,000.
(3) Represents options granted pursuant to the Company's 1997 Stock Incentive
Plan.
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OPTION GRANTS IN LAST FISCAL YEAR
The table below sets forth information with respect to stock options
granted to Mr. Mayo during Fiscal 1997 under the Company's 1997 Stock Incentive
Plan. The options listed below are included in the Summary Compensation Table
above.
% OF TOTAL OPTIONS
NUMBER OF SECURITIES GRANTED TO EXERCISE
UNDERLYING OPTIONS EMPLOYEES IN PRICE EXPIRATION
NAME GRANTED(1) FISCAL YEAR ($/SH) DATE
---- -------------------- ------------------- -------- ----------
A. Dale Mayo 50,000 40.8% 8.00 8/18/2007
- ---------------
(1) The options were granted under the Company's 1997 Stock Incentive Plan. The
exercise price of the options was set at 100% of the fair market value of
the shares on the date of grant. The options have a ten-year term and become
exercisable over four years from the date of grant in installments of 5,000,
12,500, 15,000 and 17,500 shares, respectively, subject to earlier vesting
or termination in certain circumstances. In the event of a change in control
(as defined in the 1997 Stock Incentive Plan), options become fully
exercisable. The options will remain exercisable for one year following a
termination of employment by reason of death, disability or retirement but
will expire on the date of termination for any other reason. The exercise
price may be paid by delivery of cash or shares owned for more than six
months, and any income tax obligations related to exercise may be satisfied
by surrender of shares received upon exercise, subject to certain
conditions.
The table below sets forth information with respect to the number of
unexercised options held by Mr. Mayo on December 31, 1997 on a pre-tax basis.
FISCAL YEAR END OPTION VALUES
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING OPTIONS AT IN-THE-MONEY OPTIONS AT
FISCAL YEAR END FISCAL YEAR END ($)(1)
NAME EXERCISABLE/UNEXERCISABLE EXERCISABLE/UNEXERCISABLE
---- ------------------------------- -------------------------
A. Dale Mayo -0-/50,000 -0-/162,500
- ---------------
(1) Computed as the difference between the aggregate fair market value of the
shares subject to the options on December 31, 1997, based on the closing
price of the Common Stock on the AMEX on that date, and the aggregate
exercise price of the options.
EMPLOYMENT AGREEMENT
Pursuant to an Employment Agreement by and between the Company and Mr. Mayo
dated May 29, 1996 (the "Mayo Employment Agreement"), Mr. Mayo has agreed to
serve as Chairman of the Board, President and Chief Executive Officer of the
Company. As compensation, Mr. Mayo is to receive an annual base salary of not
less than $120,000, plus an annual bonus equal to one percent of the Company's
annual gross revenues in excess of $7,000,000; provided, however, that such
total compensation may not exceed $750,000 in any one year. The initial term of
the Mayo Employment Agreement expires on May 29, 2003. Thereafter, the term of
the Mayo Employment Agreement will be automatically extended for successive
one-year periods ending on May 29 of each year, unless terminated by either
party upon at least six months' advance notice. The Mayo Employment Agreement
also provides that, for a period of three years after its termination, Mr. Mayo
may not, directly or indirectly, engage, have a financial interest in or become
interested in any other businesses similar to or in competition with the Company
within a 50 mile radius of any theater owned or operated by the Company as of
the date of that termination.
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CERTAIN TRANSACTIONS
Pursuant to a Contribution and Exchange Agreement dated December 21, 1994,
the Company issued to Mr. Mayo and Mr. Marks 330,000 and 120,000 shares of
Common Stock, respectively, in exchange for (i) all of the outstanding shares of
capital stock of Clearview Theater Group, Inc., CCC Madison Triple Cinema Corp.,
CCC Chester Twin Cinema Corporation and CCC Manasquan Cinema Corporation
(collectively, the "Subsidiaries") and (ii) promissory notes of certain of the
Subsidiaries with an aggregate principal amount of $250,000. The principal
assets of the Subsidiaries were the leases for the Company's existing movie
theaters in Bernardsville, Chester, Madison and Manasquan, New Jersey and the
related leasehold improvements and equipment. Concurrent with that contribution
and pursuant to an Investment and Stockholders Agreement dated December 21, 1994
(the "Investment Agreement"), the Company sold 150,000 shares of Common Stock of
the Company to CMNY for an aggregate purchase price of $500,000 in cash. Mr.
Davidoff, a Common Director, is a general partner of CMNY and a managing partner
of CMCO.
Mr. Mayo had formed CCC Chester Twin Cinema Corporation in August 1993 to
be the lessee of the Chester Twin Theater. In September 1993, as part of the
consideration for the sale of Clearview Cinema Corp., Mayo acquired the capital
stock of Clearview Theater Group, Inc. The terms of that sale were negotiated at
arm's length between the owners of Clearview Cinema Corp. and the purchaser. In
February 1994, Mr. Mayo had sold to Mr. Marks 49% of the capital stock of CCC
Madison Triple Cinema Corp. and of CCC Chester Twin Cinema Corporation for
$10,000 and $5,000, respectively. Simultaneously, Mr. Marks had loaned CCC
Madison Triple Cinema Corp. $125,000 and received a promissory note in exchange.
In May 1994, Mr. Mayo had formed CCC Manasquan Cinema Corporation to be the
lessee of the Algonquin Theater in Manasquan, New Jersey.
No third party was retained by the Company, CMNY, Messrs. Mayo or Marks to
value the interests being exchanged by Messrs. Mayo and Marks for shares of
Common Stock or to determine the relationship between those values and the
purchase price paid by CMNY for its shares of Common Stock. The valuation to be
placed on those interests and that relationship was determined by arm's length
negotiations between Messrs. Mayo and Marks and a representative of CMNY. Under
the Investment Agreement, CMNY had the right to sell its shares of Common Stock
to the Company during a 30-day period commencing in 2002 at a price based upon a
formula set forth therein and, if CMNY did not exercise that right, the Company
had the right to purchase those shares of Common Stock from CMNY during the
90-day period commencing after the expiration of such 30-day period at a price
based upon the same formula. CMNY and the Company terminated such repurchase and
sale rights in connection with the Common Stock Offering.
As of June 1, 1997, Mr. Marks and the Company entered into a consulting and
confidentiality agreement pursuant to which Mr. Marks agreed to assist the
Company as a consultant in the identification of possible locations for the
development of theaters and of potential acquisition candidates and provide
other services as requested by the Company. Mr. Marks is also an executive vice
president of First New York. To the extent, if any, that Mr. Marks identifies
any person who is interested in leasing a site to the Company in his capacity as
an employee of First New York and Clearview determines to lease that site, First
New York could be entitled to a commission from that person and Mr. Marks could
then be entitled to a commission from First New York.
In connection with the acquisition of the UA I Theaters, First New York and
Mr. Marks received commissions of $259,500 and $77,850, respectively, paid by
United Artists. In connection with the Company's acquisition of a three-screen
theater in Roslyn, New York, the Nelson-Ferman Theaters, the CJM Theaters, a
six-screen theater in Montclair, New Jersey, two three-screen theaters in
Manhasset and Babylon, New York, the Cobble Hill Acquisition and the Great
Neck/Franklin Square Acquisition, NY, Mr. Marks received commissions of
approximately $10,000, $3,500, $5,000, $2,500, $34,200, $20,000, and $25,000,
respectively. In addition, in connection with the Company's lease of office
space in Chatham, New Jersey, Mr. Marks received a commission of approximately
$5,000. In order to formalize the relationships among the parties, First New
York, Mr. Marks and Clearview entered into an agreement on September 1, 1997. In
that agreement, First New York acknowledged that Mr. Marks, as a consultant to
Clearview, may from time to time engage in activities that may, under other
circumstances, result in commissions being earned by First New York and Mr.
Marks, but that Clearview has sole discretion to determine whether any such
activity will result in commissions being payable to First New York or Mr.
Marks.
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On August 31, 1995, CMNY, CMCO and Mr. Davidoff each purchased an 8% Note
in the principal amounts of $300,000, $50,000 and $50,000, respectively. In
connection with the sale of these 8% Notes, the Company issued to each purchaser
warrants ("A/B Warrants") to purchase 75 shares, 12.5 shares and 12.5 shares of
Common Stock, respectively. On October 11, 1995, Mr. Davidoff and CMCO each
purchased an additional 8% Note in the principal amount of $50,000. In
connection with the sale of these 8% Notes, the Company issued to each purchaser
A/B Warrants to purchase 12.5 shares of Common Stock. On December 13, 1996, Mr.
Davidoff and CMCO each purchased an additional 8% Note due December 13, 1998 in
the principal amount of $300,000. In connection with the sale of these 8% Notes,
the Company issued to each purchaser A/B Warrants to purchase 37.5 shares of
Common Stock. In connection with the Common Stock Offering, the holders of the
A/B Warrants exchanged 162.5 of the A/B Warrants for an aggregate of 66,000
shares of Common Stock.
In October 1997, the Company repaid the 8% Notes issued during 1995 from
borrowings under the Old Credit Facility. Pursuant to an agreement among the
Company, CMCO and Mr. Davidoff dated December 12, 1997, CMCO and Mr. Davidoff
each exchanged their 8% Notes issued in 1996 for 300 shares of Class B Preferred
Stock. In connection with this exchange, CMCO and Mr. Davidoff terminated the
remaining A/B Warrants.
The terms of the 8% Notes, the A/B Warrants and the agreements related to
the termination and exchange transactions described above were negotiated at
arm's length by Mr. Davidoff, for himself and as a representative of CMNY and
CMCO, and the Company.
Messrs. Clevenger and Newman, each a Preferred Director, are managing
directors of MidMark Associates, which is the general partner of MidMark.
MidMark acquired from the Company a total of 779 shares of Class A Preferred
Stock and two warrants (the "Preferred Warrants") to purchase a total of 471
shares of Class A Preferred Stock in two transactions in 1996. Pursuant to the
Purchase Agreements under which MidMark acquired its shares of Class A Preferred
Stock and the Preferred Warrants, MidMark acquired the right to sell to the
Company, under certain circumstances, those shares of Class A Preferred Stock or
those shares of Common Stock into which those shares were converted (the "Put
Right"). In connection with the Common Stock Offering, MidMark terminated the
Put Right in exchange for 60,000 shares of Common Stock of the Company and
exchanged its Preferred Warrants for a new Warrant ("Class A Warrant")
exercisable for 282,600 shares of Common Stock of the Company.
In accordance with a Consulting Agreement between MidMark Associates and
the Company dated May 23, 1997 (the "Consulting Agreement"), MidMark Associates
will provide the Company with business and organizational strategy and financial
and investment management services for a fee equal to $60,000 per year. The
Consulting Agreement terminates on August 22, 2003, unless sooner terminated
because no officer of MidMark Associates is on the Board of Directors and the
holders of the Class A Preferred Stock are no longer entitled to vote separately
for directors.
Mr. Getter, a Common Director, is a Managing Director of Prime Charter.
Prime Charter acted as the representative of the several underwriters
(collectively, the "IPO Underwriters") who purchased an aggregate of 1,150,000
shares (including 150,000 shares purchased solely to cover over-allotments) of
the Common Stock in the Common Stock Offering.
Pursuant to the terms of the Underwriting Agreement between the Company and
Prime Charter dated August 18, 1997 (the "IPO Underwriting Agreement"), the
Company paid Prime Charter on behalf of the IPO Underwriters $736,000 for
discounts and commissions and $276,940 for additional expenses incurred by Prime
Charter in connection with the Common Stock Offering. In addition, the Company
sold to Prime Charter for nominal consideration warrants to purchase an
aggregate of 100,000 shares of Common Stock (the "IPO Underwriter Warrants").
The IPO Underwriter Warrants are exercisable for a four-year period commencing
on August 12, 1998. Also commencing on August 12, 1998, the Company will (i) be
obligated for five years to register, pursuant to the Securities Act, the shares
of Common Stock issued or issuable upon exercise of the IPO Underwriter Warrants
and (ii) be obliged for seven years to include shares of Common Stock in any
appropriate registration statement which may be filed by the Company.
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Prime Charter has the right to send a representative to observe each
meeting of the Board of Directors until August 2002. At Prime Charter's
election, in lieu of such representative, Prime Charter may require the Company
to use its reasonable best efforts to elect one designee of Prime Charter to the
Board of Directors for the longer of (i) two years following the consummation of
the Common Stock Offering or (ii) up to five years following consummation of the
Common Stock Offering. Mr. Getter is Prime Charter's designee on the Board of
Directors. Prime Charter and its affiliates are the beneficial owners of at
least 50% of the IPO Underwriter Warrants and/or the underlying shares of Common
Stock.
Prior to the Common Stock Offering, there was no public market for the
Common Stock. Accordingly, the Common Stock Offering price was determined by
negotiation between the Company and Prime Charter.
All of the transactions described above were negotiated at arm's length
among the various parties thereto and the Company believes that each of these
transactions has terms that would be appropriate in a transaction between
unaffiliated parties and that are fair to the Company as a whole. It is the
policy of the Company to have any transaction with an affiliated party reviewed
and approved by the directors of the Company who have no relationship with that
party or that transaction.
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PRINCIPAL STOCKHOLDERS
The following table sets forth the beneficial ownership of the Common Stock
as of September 29, 1998 by each beneficial owner of more than 5% of the
outstanding Common Stock, each director, and all of the Company's directors and
executive officers as a group. All of the Class A Preferred Stock is owned by
MidMark. All of the Class C Preferred Stock is owned by Marshall Capital
Management, Inc., an affiliate of Credit Suisse First Boston Corporation. Unless
otherwise indicated, the holders of all shares shown in the table have sole
voting and investment power with respect to such shares.
SHARES OF
COMMON STOCK
BENEFICIALLY OWNED
--------------------
NAME AND ADDRESS(1) NUMBER PERCENT
------------------- --------- -------
A. Dale Mayo(2) 881,802 38.1%
MidMark Capital, L.P.(3) 527,400 19.0%
CMNY Capital II, L.P.(4) 184,080 8.0%
Marshall Capital Management, Inc.(5) 156,437 6.4%
Wayne L. Clevenger(3)(6) 527,400 19.0%
Robert G. Davidoff(5)(7) 216,000 9.4%
Philip M. Getter(8) -- --
Brett E. Marks(2)(9) 118,600 5.1%
Denis Newman(3)(6) 527,400 19.0%
Sueanne Hall Mayo(10) -- --
All directors and executive officers as a group(2) 1,626,202 58.8%
- ---------------
(1) The address of each person set forth above is 97 Main Street, Chatham, New
Jersey 07928, except as otherwise noted.
(2) Includes 5,000 shares of Common Stock subject to options that are
exercisable within 60 days of the date of the table set forth above. Mr.
Mayo owns directly 316,000 shares of Common Stock. The other 560,802 shares
are owned by other stockholders of the Company, including Emerson Cinema,
Inc. and Mr. Marks, subject to voting trust agreements for which Mr. Mayo
is the trustee. Under those agreements, Mr. Mayo has the right to exercise
all voting rights with respect to those shares for a period of 20 years or
until they are sold in a public offering under the Securities Act or in
accordance with Rule 144 under the Securities Act.
(3) The address for MidMark and Messrs. Clevenger and Newman is c/o MidMark
Associates, Inc., 466 Southern Boulevard, Chatham, New Jersey 07928.
MidMark beneficially owns 527,400 shares of Common Stock by means of its
ownership of (i) 60,000 shares of Common Stock and (ii) 779 shares of Class
A Preferred Stock, which represent all of the outstanding shares of Class A
Preferred Stock, and which are convertible into 467,400 shares of Common
Stock.
(4) The address for CMNY and Mr. Davidoff is c/o Carl Marks & Co., Inc., 135
East 57th Street, New York, New York 10022.
(5) Represents the shares of Common Stock into which the Class C Preferred
Stock was convertible at June 30, 1998. See "Description of Capital
Stock--Class C Preferred Stock." The address for Marshall Capital
Management, Inc. is 11 Madison Avenue, New York, New York 10010.
(6) Comprises the shares owned by MidMark. Both Mr. Clevenger and Mr. Newman
disclaim beneficial ownership of the shares of Common Stock beneficially
owned by MidMark.
(7) Includes 184,080 shares owned by CMNY and 15,960 shares owned by CMCO. Mr.
Davidoff disclaims beneficial ownership of the shares of Common Stock owned
by either CMNY or CMCO.
(8) The address for Philip M. Getter is 810 Seventh Avenue, 9th Floor, New
York, New York 10019.
(9) Includes 1,000 shares of Common Stock subject to options that are
exercisable within 60 days of the date of the table set forth above. The
address for Mr. Marks is c/o First New York, 310 Madison Avenue, New York,
New York 10017.
(10) Ms. Mayo disclaims beneficial ownership of all of the shares beneficially
owned by Mr. Mayo.
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DESCRIPTION OF NOTES
GENERAL
The Old Notes were issued and the New Notes will be issued pursuant to an
Indenture (the "Indenture") dated as of June 12, 1998 between the Company, the
Subsidiary Guarantors and The Bank of New York, as trustee (the "Trustee"), a
copy of which is included as an exhibit to the Registration Statement of which
this Prospectus forms a part. The terms of the New Notes will be identical in
all material respects with the terms of the Old Notes, except for certain
transfer restrictions, registration rights and terms providing for an increase
in the interest rate on the Old Notes under certain circumstances relating to
the registration of the New Notes. The New Notes and the Old Notes are deemed
the same series of Notes under the Indenture and are entitled to the benefits
thereof. Accordingly, unless specifically stated to the contrary, the following
is a summary of certain provisions of the Indenture and the Notes that is
equally applicable to the Old Notes and the New Notes. Such summary does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, all the provisions of the Indenture (including the definitions of
certain terms therein and those terms made apart thereof by the Trust Indenture
Act of 1939, as amended (the "Trusted Indenture Act")) and the Notes.
Capitalized terms used in the following description and not otherwise defined
therein shall have the meanings assigned to them in the Indenture. Copies of the
Indenture and the Registration Rights Agreement are available as set fourth
above under "Available Information." The definitions of certain terms used in
the following summary are set forth below under "--Certain Definitions." For
purposes of this summary, the term "Company" refers only to Clearview Cinema
Group, Inc. and not to any of its Subsidiaries.
The Notes are general unsecured obligations of the Company and rank pari
passu in right of payment with all future senior indebtedness of the Company. As
of June 30, 1998, the Company had $80.0 million of indebtedness outstanding, all
of which is represented by the Notes, and had up to $15.0 million of secured
revolving credit borrowings available under the New Credit Facility. The
Indenture permits the incurrence of additional senior indebtedness in the
future.
As of the date of the Indenture, all of the Company's Subsidiaries were
Restricted Subsidiaries. However, under certain circumstances, the Company is
able to designate future Subsidiaries as Unrestricted Subsidiaries. Unrestricted
Subsidiaries are subject to many of the restrictive covenants set forth in the
Indenture.
THE PROPOSED AMENDMENTS
If the Proposed Amendments become effective, the Proposed Amendments will
be binding on all Holders that did not tender Notes in the Tender Offer,
including Holders of New Notes. Holders who do not tender their Notes in the
Tender Offer will hold their Notes under the Indenture as modified by the
Supplemental Indenture and such Holders will no longer be entitled to the
benefits of the covenants modified or eliminated by the Proposed Amendments.
Accordingly, the description of Notes sent forth below is subject to
modification by the Proposed Amendments and will not represent a complete
description of the Notes if the Proposed Amendments become effective. The
modification or elimination of restrictive covenants and other provisions
pursuant to the Proposed Amendments may permit the Company to take actions that
could increase the credit risks with respect to the Company faced by Holders not
tendering into the Tender Offer, adversely affect the market price of the Notes
that remain outstanding or otherwise be adverse to the interest of Holders not
tendering into the Tender Offer. The Proposed Amendments may be revised,
modified, amended or supplemented after the date hereof, and if required at that
time, a supplement to this Prospectus will be delivered.
The Proposed Amendments will, among other things, modify or eliminate
certain so-called "restrictive covenants" contained in the Indenture. For a
comparison of the Proposed Amendments with the corresponding existing provisions
contained in the Indenture, see "Description of Notes--Indenture Comparison"
below. The following summary and indenture comparison are qualified in their
entirety by reference to the Supplemental Indenture and the Indenture, copies of
which may be obtained from the Information Agent. Capitalized terms used and not
defined in this section shall have the meaning ascribed to them in the Indenture
and the Supplemental Indenture.
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The Company is seeking approval of the Proposed Amendments in order to give
it greater operating flexibility after the Merger, when it will become a member
of the Cablevision group. The Proposed Amendments amend certain covenants
contained in the Indenture to more closely resemble the equivalent covenants
contained in Cablevision's senior debt indentures.
Among other things, the Proposed Amendments modify Section 4.9 (Incurrence
of Indebtedness and Issuance of Preferred Stock) to replace the Fixed Charge
Ratio test with a Cash Flow Ratio test. Section 4.9 of the Indenture limits the
Company's ability to incur additional indebtedness or issue Disqualified Stock,
if after giving effect to such incurrence or issuance, the Fixed Charge Coverage
Ratio would be less than 2.0 to 1.0. The Fixed Charge Coverage Ratio equals the
ratio of Consolidated Cash Flow to Fixed Charges, where Fixed Charges is defined
to include consolidated interest expense (including capitalized interest
expense), dividends (before tax) and certain other items. For the fiscal year
ending December 31, 1997, the Company's Fixed Charge Coverage Ratio was 1.2 to
1.0. Under the proposed Cash Flow Ratio test, the Company's ability to incur
Indebtedness or issue Disqualified Stock would be limited if after giving effect
to such incurrence or issuance, the Cash Flow Ratio would be greater than 9.0 to
1.0. The Cash Flow Ratio equals the ratio of (i) the aggregate principal amount
of outstanding Indebtedness (excluding Hedging Obligations) plus the aggregate
undrawn face amount of letters of credit to (ii) Annualized Operating Cash Flow.
For the fiscal year ending December 31, 1997, the Company's Cash Flow Ratio was
8.7 to 1.0, excluding any pro forma effect from Theatre Completions or from
incremental contributions to Operating Cash Flow from asset acquisitions. The
Proposed Amendments also increase the level of Permitted Debt (i.e., debt which
may be incurred without the requirement of satisfying the Cash Flow Ratio test)
that the Company may incur under Credit Facilities from $15 million to $100
million. Accordingly, under the Cash Flow Ratio test the Company's ability to
incur additional Indebtedness would be increased.
Section 4.12 (Liens) limits the Company's ability to secure Indebtedness
with Liens on its assets except for certain Permitted Liens. Permitted Liens
include Liens securing Indebtedness under the Company's bank credit facility
that was permitted to be incurred under the terms of the Indenture. As a result,
one of the effects arising out of the replacement of the Fixed Charge Ratio test
with the Cash Flow Ratio test is to increase the Company's ability to incur
additional secured Indebtedness. Likewise, the Proposed Amendments replace the
Fixed Charge Ratio test included in Section 4.13 (Sale and Leaseback
Transactions) with the Cash Flow Ratio test described above, thereby increasing
the Company's ability to enter into Sale and Leaseback transactions.
The Proposed Amendments also modify Section 4.7 (Restricted Payments) to
(i) delete the restriction on Restricted Investments and (ii) amend the test
permitting certain Restricted Payments. The Proposed Amendments would add a $25
million base amount and take into account contributions of property in exchange
for equity in the Company in calculating the level of Restricted Payments that
would be permitted to be made under the Indenture. In addition, the existing
Indenture limits the Company's ability to make any Restricted Payments, if after
giving effect to such Restricted Payments, the Company would be unable to incur
an additional $1.00 of Indebtedness under the Fixed Charge Ratio test set forth
in Section 4.9. Under the Proposed Amendments, this Fixed Charge Ratio test
would be replaced with the Cash Flow Ratio test described above. Accordingly,
under the Proposed Amendments, the Company's ability to make Restricted Payments
would be increased.
The Proposed Amendment will also: (a) delete the definitions of
"Consolidated Cash Flow"; "Fixed Charge Coverage Ratio"; "Fixed Charges";
"Permitted Investments"; and "Restricted Investments"; (b) add definitions for
"Annualized Operating Cash Flow"; "Cash Flow Ratio"; "Operating Cash Flow"; and
"Theatre Completions"; (c) amend Section 4.3 (Reports) so that the requirement
to provide a quarterly Management's Discussion and Analysis of Financial
Condition and Results of Operations only exists for so long as the Company
remains a reporting company under the Securities Exchange Act of 1934, as
amended; (d) amend Section 4.11 (Transactions with Affiliates) to eliminate the
requirement to obtain the approval of the Board of Directors and a fairness
opinion; (e) delete Section 4.15 (Business Activities); and (f) amend Section
5.1 (Merger, Consolidation or Sale of Assets) to eliminate the Consolidated Net
Worth and Fixed Charge Ratio tests.
The Supplemental Indenture will be executed by the Company and the Trustee
as soon as practicable after receipt of Consents from the Holders of a majority
of the principal amount of the outstanding Notes; however, the Proposed
Amendments will not become operative unless and until the Merger Conditions have
been satisfied or waived and certain other conditions are met.
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PRINCIPAL, MATURITY AND INTEREST
The Notes are limited in aggregate principal amount to $80.0 million and
mature on June 1, 2008. Interest on the Notes accrues at the rate of 10 7/8% per
annum and is payable semi-annually in arrears on June 1 and December 1,
commencing on December 1, 1998, to Holders of record on the immediately
preceding May 15 and November 15. Interest on the Notes accrues from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of original issuance. Interest is computed on the basis of a
360-day year comprised of twelve 30-day months. Principal, premium, if any, and
interest and liquidated damages as set forth in the Indenture (the "Liquidated
Damages") on the Notes are payable at the office or agency of the Company
maintained for such purpose within the City and State of New York or, at the
option of the Company, payment of interest and Liquidated Damages may be made by
check mailed to the Holders of the Notes at their respective addresses set forth
in the register of Holders of Notes; provided that all payments of principal,
premium, interest and Liquidated Damages with respect to Notes the Holders of
which have given wire transfer instructions to the Company will be required to
be made by wire transfer of immediately available funds to the accounts
specified by the Holders thereof. Until otherwise designated by the Company, the
Company's office or agency in New York will be the office of the Trustee
maintained for such purpose. The Old Notes were, but the New Notes will be,
issued in denominations of $1,000 and integral multiples thereof.
SUBSIDIARY GUARANTEES
The Company's payment obligations under the Notes are fully and
unconditionally guaranteed, on a joint and several basis (the "Subsidiary
Guarantees"), by the Subsidiary Guarantors. The Subsidiary Guarantors include
all of the Company's Subsidiaries in existence on the date of the Indenture,
each of which is currently wholly-owned by the Company. The Subsidiary Guarantee
of each Subsidiary Guarantor ranks pari passu with all senior indebtedness of
such Subsidiary Guarantor. The obligations of each Subsidiary Guarantor under
its Subsidiary Guarantee will be limited so as not to constitute a fraudulent
conveyance under applicable law. See, however, "Risk Factors--Fraudulent
Conveyance Matters."
The Indenture provides that no Subsidiary Guarantor may consolidate with or
merge with or into (whether or not such Subsidiary Guarantor is the surviving
Person), another corporation, Person or entity whether or not affiliated with
such Subsidiary Guarantor unless (i) subject to the provisions of the following
paragraph, the Person formed by or surviving any such consolidation or merger
(if other than such Subsidiary Guarantor) assumes all the obligations of such
Subsidiary Guarantor pursuant to a supplemental indenture in form and substance
reasonably satisfactory to the Trustee, under the Notes, the Indenture and the
Registration Rights Agreement; (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists; and (iii) the Company would
be permitted by virtue of the Company's pro forma Fixed Charge Coverage Ratio,
immediately after giving effect to such transaction, to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the covenant described above under the caption "--Incurrence of
Indebtedness and Issuance of Preferred Stock." Notwithstanding the foregoing
clause (iii), each Subsidiary Guarantor may consolidate with or merge into the
Company or another Guarantor.
The Indenture provides that in the event of a sale or other disposition of
all of the assets of any Subsidiary Guarantor, by way of merger, consolidation
or otherwise, or a sale or other disposition of all of the capital stock of any
Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or
other disposition, by way of such a merger, consolidation or otherwise, of all
of the capital stock of such Subsidiary Guarantor) or the corporation acquiring
the property (in the event of a sale or other disposition of all of the assets
of such Subsidiary Guarantor) will be released and relieved of any obligations
under its Subsidiary Guarantee; provided that the Net Proceeds of such sale or
other disposition are applied in accordance with the applicable provisions of
the Indenture. See "Repurchase at the Option of Holders--Asset Sales."
As of June 30, 1998, the Subsidiary Guarantors would have had no
indebtedness outstanding other than the Subsidiary Guarantees of the Notes.
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OPTIONAL REDEMPTION
The Notes are not redeemable at the Company's option prior to June 1, 2003.
Thereafter, the Notes are subject to redemption at any time at the option of the
Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest and Liquidated Damages thereon,
if any, to the applicable redemption date, if redeemed during the twelve-month
period beginning on June 1 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2003........................................................ 105.4375%
2004........................................................ 103.6250
2005........................................................ 101.8125
2006 and thereafter......................................... 100.0000
Notwithstanding the foregoing, at any time prior to June 1, 2001, the
Company may on any one or more occasions redeem up to 33% of the aggregate
principal amount of Notes originally issued under the Indenture at a redemption
price of 110.875% of the principal amount thereof, plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the redemption date, with
the net cash proceeds of a public offering of common stock of the Company or the
net cash proceeds from a Strategic Equity Investment in the Company; provided
that at least $53.3 million in aggregate principal amount of Notes remains
outstanding immediately after the occurrence of such redemption (excluding Notes
held by the Company and its Subsidiaries); and provided, further, that such
redemption shall occur within 45 days of the date of the closing of such public
offering or Strategic Equity Investment.
If less than all of the Notes are to be redeemed at any time, selection of
Notes for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed, or, if the Notes are not so listed, on a pro rata basis, by
lot or by such method as the Trustee shall deem fair and appropriate; provided
that no Notes of $1,000 or less shall be redeemed in part. Notices of redemption
shall be mailed by first class mail at least 30 but not more than 60 days before
the redemption date to each Holder of Notes to be redeemed at its registered
address. Notices of redemption may not be conditional. If any Note is to be
redeemed in part only, the notice of redemption that relates to such Note shall
state the portion of the principal amount thereof to be redeemed. A new Note in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Note. Notes called
for redemption become due on the date fixed for redemption. On and after the
redemption date, interest ceases to accrue on Notes or portions of them called
for redemption.
MANDATORY REDEMPTION
The Company is not required to make mandatory redemption or sinking fund
payments with respect to the Notes.
REPURCHASE AT THE OPTION OF HOLDERS
CHANGE OF CONTROL
Upon the occurrence of a Change of Control, each Holder of Notes has the
right to require the Company to repurchase all or any part (equal to $1,000 or
an integral multiple thereof) of such Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") at an offer price in cash equal
to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date of purchase (the
"Change of Control Payment"). Within ten days following any Change of Control,
the Company will mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and offering to repurchase
Notes on the date specified in such notice, which date shall be no earlier than
30 days and no later than 60 days from the date such notice is mailed (the
"Change of Control Payment Date"), pursuant to the procedures required by the
Indenture and described in such notice. The Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
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Change of Control. See "Business--Recent Developments" for a discussion of a
Change of Control which occurred upon the execution of the Stockholders'
Agreement in connection with the proposed Merger with Cablevision.
On the Change of Control Payment Date, the Company will, to the extent
lawful, (1) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (2) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent will promptly mail to each Holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder
a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided that each such new Note will be in a principal
amount of $1,000 or an integral multiple thereof. The Indenture provides that,
prior to complying with the provisions of this covenant, but in any event within
90 days following a Change of Control, the Company will either repay all
outstanding indebtedness under the New Credit Facility or obtain the requisite
consents, if any, under the New Credit Facility to permit the repurchase of
Notes required by this covenant. The Company will publicly announce the results
of the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
The Change of Control provisions described above are applicable whether or
not any other provisions of the Indenture are applicable. Except as described
above with respect to a Change of Control, the Indenture does not contain
provisions that permit the Holders of the Notes to require that the Company
repurchase or redeem the Notes in the event of a takeover, recapitalization or
similar transaction.
The New Credit Facility limits the ability of the Company to purchase any
Notes and provides that certain change of control events with respect to the
Company would constitute a default thereunder. Any future credit agreements or
other agreements relating to senior indebtedness to which the Company becomes a
party may contain similar restrictions and provisions. In the event a Change of
Control occurs at a time when the Company is prohibited from purchasing Notes,
the Company could seek the consent of its lenders to the purchase of Notes or
could attempt to refinance the borrowings that contain such prohibition. If the
Company does not obtain such a consent or repay such borrowings, the Company
will remain prohibited from purchasing Notes. In such case, the Company's
failure to purchase tendered Notes would constitute an Event of Default under
the Indenture which would, in turn, constitute a default under the New Credit
Facility.
The Company is not required to make a Change of Control Offer upon a Change
of Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in the
Indenture applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
If the proposed Merger with Cablevision is completed, a Change of Control
will occur under the Indenture and each Holder of the Notes will have the right
to require the Company to purchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder's Notes pursuant to a Change of
Control Offer.
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole to any "person" (as such term is used in Section 13(d)(3) of
the Exchange Act) other than the Principal (as defined below) or a Related Party
(as defined below) of the Principal, (ii) the adoption of a plan relating to the
liquidation or dissolution of the Company, (iii) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
result of which is that (A) any "person" (as defined above), other than the
Principal and its Related Parties, becomes the "beneficial owner" (as such term
is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that a
person shall be deemed to have "beneficial ownership" of all securities that
such person has the right to acquire, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 40% of the Voting Stock of the
Company (measured by voting power rather than number of shares) and (B) the
Principal and its Related Parties "beneficially own" (as defined above),
directly or indirectly, in the aggregate a lesser percentage of the Voting
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Stock of the Company (measured by voting power rather than number of shares)
than any such "person" (as defined above), (iv) the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors (as defined below) or (v) the Company consolidates with, or
merges with or into, any Person, or any Person consolidates with, or merges with
or into, the Company, in any such event pursuant to a transaction in which any
of the outstanding Voting Stock of the Company is converted into or exchanged
for cash, securities or other property, other than any such transaction where
the Voting Stock of the Company outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person constituting a
majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance).
The definition of Change of Control includes a phrase relating to the sale,
lease, transfer, conveyance or other disposition of "all or substantially all"
of the assets of the Company and its Restricted Subsidiaries taken as a whole.
Although there is a developing body of case law interpreting the phrase
"substantially all," there is no precise established definition of the phrase
under applicable law. Accordingly, the ability of a Holder of Notes to require
the Company to repurchase such Notes as a result of a sale, lease, transfer,
conveyance or other disposition of less than all of the assets of the Company
and its Restricted Subsidiaries taken as a whole to another Person or group may
be uncertain.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of such Board of
Directors on the date of the Indenture, (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election or (iii) is a designee of the Principal or was nominated
by the Principal.
"Principal" means A. Dale Mayo.
"Related Party" with respect to the Principal means (A) any controlling
stockholder, 80% (or more) owned Subsidiary, or spouse or immediate family
member (in the case of an individual) of such Principal or (B) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Principal and/or such other Persons referred
to in the immediately preceding clause (A).
ASSET SALES
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the
Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (evidenced by a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee) of the assets or Equity
Interests issued or sold or otherwise disposed of and (ii) at least 75% of the
consideration therefore received by the Company or such Restricted Subsidiary is
in the form of cash or Cash Equivalents; provided that the amount of (x) any
liabilities (as shown on the Company's or such Restricted Subsidiary's most
recent balance sheet), of the Company or any Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Notes or any guarantee thereof) that are assumed by the transferee of any
such assets pursuant to a customary novation agreement that releases the Company
or such Restricted Subsidiary from further liability and (y) any securities,
notes or other obligations received by the Company or any such Restricted
Subsidiary from such transferee that are contemporaneously (subject to ordinary
settlement periods) converted by the Company or such Restricted Subsidiary into
cash (to the extent of the cash received), shall be deemed to be cash for
purposes of this provision.
Within 270 days after the receipt of any Net Proceeds from an Asset Sale,
the Company may apply such Net Proceeds, at its option, (a) to repay
Indebtedness under the New Credit Facility, or (b) to the acquisition of a
majority of the assets of, or a majority of the Voting Stock of, an entity that
is engaged in another Permitted Business and that becomes a Restricted
Subsidiary, the making of a capital expenditure or the acquisition of other
long-term assets that are used or useful in a Permitted Business ("Replacement
Assets"); provided, however, that in connection with any repayment of
Indebtedness under the New Credit Facility pursuant to clause (a), the Company
will retire such Indebtedness and will cause the related commitment to be
reduced in an amount equal
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to the principal amount so repaid. Pending the final application of any such Net
Proceeds, the Company may temporarily reduce revolving credit borrowings or
otherwise invest such Net Proceeds in any manner that is not prohibited by the
Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the first sentence of this paragraph will be deemed to constitute
"Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $5.0
million, the Company will be required to make an offer to all Holders of Notes
(an "Asset Sale Offer") to purchase the maximum principal amount of Notes that
may be purchased out of the Excess Proceeds, at an offer price in cash in an
amount equal to 100% of the principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date of purchase, in
accordance with the procedures set forth in the Indenture. To the extent that
any Excess Proceeds remain after consummation of an Asset Sale Offer, the
Company may use such Excess Proceeds for any purpose not otherwise prohibited by
the Indenture. If the aggregate principal amount of Notes tendered into such
Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes to be purchased on a pro rata
basis. Upon completion of such offer to purchase, the amount of Excess Proceeds
shall be reset at zero.
Notwithstanding the immediately preceding paragraphs, the Company and its
Restricted Subsidiaries are permitted to consummate an Asset Sale without
complying with such paragraphs to the extent (i) 100% of the consideration for
such Asset Sale constitutes either Replacement Assets or cash or Cash
Equivalents or any combination thereof and (ii) such Asset Sale is for fair
market value as determined in good faith by the Company's Board of Directors;
provided, that if the total consideration with respect to any such Asset Sale is
greater than $10.0 million (as determined in good faith by the Company's Board
of Directors), the Company shall obtain a fairness opinion from an independent
accounting, appraisal or investment banking firm of national standing; provided
further, that any consideration not constituting Replacement Assets received by
the Company or any of its Restricted Subsidiaries in connection with any Asset
Sale permitted to be consummated under this paragraph shall constitute Net
Proceeds subject to the provisions of the immediately preceding paragraph.
CERTAIN COVENANTS
Restricted Payments
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay
any dividend or make any other payment or distribution on account of the
Company's or any of its Restricted Subsidiaries' Equity Interests (including,
without limitation, any payment in connection with any merger or consolidation
involving the Company or any of its Restricted Subsidiaries) or to the direct or
indirect holders of the Company's or any of its Restricted Subsidiaries' Equity
Interests in their capacity as such (other than dividends or distributions
payable in Equity Interests (other than Disqualified Stock) of the Company or to
the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or
otherwise acquire or retire for value (including, without limitation, in
connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or other Affiliate of the Company (other than any such
Equity Interests owned by the Company or any Restricted Subsidiary); (iii) make
any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated to the Notes,
except a payment of interest or principal at Stated Maturity; or (iv) make any
Restricted Investment (all such payments and other actions set forth in clauses
(i) through (iv) above being collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of
the covenant described below under caption "--Incurrence of Indebtedness
and Issuance of Preferred Stock;" and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of the Indenture (excluding Restricted
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Payments permitted by clauses (ii), (iii), (iv), (vi) and (vii) of the next
succeeding paragraph), is less than the sum, without duplication, of (i)
50% of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from the beginning of the first fiscal quarter
commencing after the date of the Indenture to the end of the Company's most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated
Net Income for such period is a deficit, less 100% of such deficit), plus
(ii) 100% of the aggregate net cash proceeds received by the Company since
the date of the Indenture as a contribution to its common equity capital or
from the issue or sale of Equity Interests of the Company (other than
Disqualified Stock) or from the issue or sale of Disqualified Stock or debt
securities of the Company that have been converted into such Equity
Interests (other than Equity Interests (or Disqualified Stock or
convertible debt securities) sold to a Subsidiary of the Company), plus
(iii) to the extent that any Restricted Investment that was made after the
date of the Indenture is sold for cash or otherwise liquidated or repaid
for cash, the lesser of (A) the cash return of capital with respect to such
Restricted Investment (less the cost of disposition, if any) and (B) the
initial amount of such Restricted Investment, plus (iv) 50% of any
dividends received by the Company or a Restricted Subsidiary that is a
Subsidiary Guarantor after the date of the Indenture from an Unrestricted
Subsidiary of the Company, to the extent that such dividends were not
otherwise included in Consolidated Net Income of the Company for such
period, plus (v) to the extent that any Unrestricted Subsidiary is
redesignated as a Restricted Subsidiary after the date of the Indenture,
the lesser of (A) the fair market value of the Company's Investment in such
Subsidiary as of the date of such redesignation or (B) such fair market
value as of the date on which such Subsidiary was originally designated as
an Unrestricted Subsidiary.
The foregoing provisions do not prohibit (i) the payment of any dividend
within 60 days after the date of declaration thereof, if at said date of
declaration such payment would have complied with the provisions of the
Indenture; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the Company
in exchange for, or out of the net cash proceeds of the substantially concurrent
sale (other than to a Subsidiary of the Company) of, other Equity Interests of
the Company (other than any Disqualified Stock); provided that the amount of any
such net cash proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition shall be excluded from clause (ii)
of the preceding paragraph; (iii) the defeasance, redemption, repurchase or
other acquisition of subordinated Indebtedness with the net cash proceeds from
an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any
dividend by a Subsidiary of the Company to the holders of such Subsidiary's
common Equity Interests on a pro rata basis; (v) the repurchase, redemption or
other acquisition or retirement for value of any Equity Interests of the Company
or any Subsidiary of the Company held by any member of the Company's (or any of
its Subsidiaries') management pursuant to any management equity subscription
agreement or stock option agreement in effect as of the date of the Indenture;
provided that the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed $250,000 in any
twelve-month period; (vi) the redemption or repayment on the date of the
Indenture of (A) $1,350,000 aggregate liquidation preference of outstanding
Series B Preferred Stock and (B) $6,000,000 aggregate principal amount of
outstanding subordinated promissory notes issued in connection with the
acquisition of the Nelson Ferman Theaters, in each case with the net proceeds
from the offering of the Notes; (vii) the payment of dividends to holders of any
class or series of Disqualified Stock of the Company issued or incurred after
the date of the Indenture in accordance with the covenant "Incurrence of
Indebtedness and Issuance of Preferred Stock," provided that after giving effect
to any such dividend as a Fixed Charge on a pro forma basis, the Company and its
Restricted Subsidiaries would have had a Fixed Charge Coverage Ratio of at least
2.0 to 1; and (viii) other Restricted Payments in an aggregate amount not to
exceed $500,000; provided, however, that at the time of, and after giving effect
to, any Restricted Payment permitted by clauses (ii), (iii), (iv), (v), (vii)
and (viii) of this paragraph, no Default or Event of Default shall have occurred
and be continuing.
The Board of Directors may designate any Restricted Subsidiary acquired or
created after the date of the Indenture (other than any Restricted Subsidiary
created to effect the Pending Acquisitions) to be an Unrestricted Subsidiary if
such designation would not cause a Default. For purposes of making such
determination, all outstanding Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid in cash) in the Subsidiary so
designated will be deemed to be Restricted Payments at the time of such
designation and will reduce the amount available for Restricted Payments under
the first paragraph of this covenant. All such
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outstanding Investments will be deemed to constitute Investments in an amount
equal to the fair market value of such Investments at the time of such
designation. Such designation will only be permitted if such Restricted Payment
would be permitted at such time and if such Restricted Subsidiary otherwise
meets the definition of an Unrestricted Subsidiary. Upon such designation, the
Subsidiary Guarantee, if any, of such designated Unrestricted Subsidiary shall
be automatically released.
The amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Company or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any non-cash Restricted Payment shall be determined by the Board
of Directors whose resolution with respect thereto shall be delivered to the
Trustee, such determination to be based upon an opinion or appraisal issued by
an accounting, appraisal or investment banking firm of national standing if such
fair market value exceeds $1.0 million. Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by the covenant "Restricted
Payments" were computed, together with a copy of any fairness opinion or
appraisal required by the Indenture.
The provisions concerning Restricted Payments are proposed to be amended by
the Proposed Amendments. See "Description of Notes--The Proposed Amendments."
INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt) and that the Company will not issue any
Disqualified Stock and will not permit any of its Restricted Subsidiaries to
issue any shares of preferred stock; provided, however, that if no Default or
Event of Default shall have occurred and be continuing at the time of or as a
consequence of such incurrence or issuance, (i) the Company may incur
Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock and
(ii) any Subsidiary Guarantor may incur Indebtedness (including Acquired Debt),
in each case if the Fixed Charge Coverage Ratio for the Company's most recently
ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness
is incurred or such Disqualified Stock is issued would have been at least 2.0 to
1, determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period.
The provisions of the first paragraph of this covenant will not apply to
the incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Company of Indebtedness and letters of
credit (with letters of credit being deemed to have a principal amount
equal to the maximum potential liability of the Company and its Restricted
Subsidiaries thereunder) under Credit Facilities; provided that the
aggregate principal amount of all Indebtedness outstanding under all Credit
Facilities under this clause (i) after giving effect to such incurrence
does not exceed an amount equal to $15 million, less the aggregate amount
of all Net Proceeds of Asset Sales applied to repay Indebtedness under a
Credit Facility pursuant to the covenant described above under the caption
"--Asset Sales;"
(ii) the incurrence by the Company and its Restricted Subsidiaries of
the Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness represented by the
Notes and by the Subsidiary Guarantors of Indebtedness represented by the
Subsidiary Guarantees;
(iv) the incurrence by the Company or any of the Subsidiary Guarantors
of Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case incurred for the
purpose of financing all or any part of the purchase price or cost of
construction or improvement of property, plant or equipment used in the
business of the Company or such Subsidiary Guarantor, in an aggregate
principal amount not to exceed $5.0 million at any time outstanding;
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(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or replace Indebtedness
(other than intercompany Indebtedness) that was permitted by the Indenture
to be incurred under the first paragraph hereof or clauses (ii) and (iv) of
this paragraph;
(vi) the incurrence by the Company or any Subsidiary Guarantor of
intercompany Indebtedness between or among the Company and any Subsidiary
Guarantor; provided, however, that (i) if the Company is the obligor on
such Indebtedness, such Indebtedness is expressly subordinated to the prior
payment in full in cash of all Obligations with respect to the Notes and
(ii)(A) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other than the
Company or a Subsidiary Guarantor thereof and (B) any sale or other
transfer of any such Indebtedness to a Person that is not either the
Company or a Subsidiary Guarantor thereof shall be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company or such
Subsidiary Guarantor, as the case may be, that was not permitted by this
clause (vi);
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of
fixing or hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be
outstanding;
(viii) the guarantee by the Company or any of the Subsidiary
Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the
Company that was permitted to be incurred by another provision of this
covenant;
(ix) the incurrence by the Company or any Subsidiary Guarantor of
additional Indebtedness in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (ix), not to exceed $10.0
million; and
(x) the incurrence by the Company's Unrestricted Subsidiaries of
Non-Recourse Debt, provided, however, that if any such Indebtedness ceases
to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be
deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Company that was not permitted by this clause (x).
For purposes of determining compliance with this covenant, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (x) above or is
entitled to be incurred pursuant to the first paragraph of this covenant, the
Company shall, in its sole discretion, classify such item of Indebtedness in any
manner that complies with this covenant. Accrual of interest or accretion or
amortization of original issue discount will not be deemed to be an incurrence
of Indebtedness for purposes of this covenant; provided, in each such case, that
the amount thereof is included in Fixed Charges of the Company as accrued.
The Indenture also provides that the Company will not incur any
Indebtedness that is contractually subordinated in right of payment to any other
Indebtedness of the Company unless such Indebtedness is also contractually
subordinated in right of payment to the Notes on substantially identical terms;
provided, however, that no Indebtedness of the Company shall be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the
Company solely by virtue of being unsecured.
The provisions concerning incurrence of indebtedness and issuance of
preferred stock are proposed to be amended by the Proposed Amendments. See
"Description of Notes--The Proposed Amendments."
LIENS
The Indenture provides that the Company will not and will not permit any of
its Restricted Subsidiaries to, create, incur, assume or otherwise cause or
suffer to exist or become effective any Lien of any kind securing Indebtedness
or trade payables (other than Permitted Liens) upon any of their property or
assets, now owned or hereafter acquired, unless all payments due under the
Indenture, the Notes and the Subsidiary Guarantees are
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secured on an equal and ratable basis with the obligations so secured until such
time as such obligations are no longer secured by a Lien.
The provisions concerning Liens are proposed to be amended by the Proposed
Amendments. See "Description of Notes--The Proposed Amendments."
DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any encumbrance or restriction on
the ability of any Restricted Subsidiary to (i)(a) pay dividends or make any
other distributions to the Company or any of its Restricted Subsidiaries (1) on
its Capital Stock or (2) with respect to any other interest or participation in,
or measured by, its profits, or (b) pay any indebtedness owed to the Company or
any of its Restricted Subsidiaries, (ii) make loans or advances to the Company
or any of its Restricted Subsidiaries or (iii) transfer any of its properties or
assets to the Company or any of its Restricted Subsidiaries. However, the
foregoing restrictions will not apply to encumbrances or restrictions existing
under or by reason of (a) Existing Indebtedness as in effect on the date of the
Indenture, (b) the Indenture and the Notes, (c) applicable law, (d) any
instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent such Indebtedness was incurred in connection
with or in contemplation of such acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so acquired,
provided that, in the case of Indebtedness, such Indebtedness was permitted by
the terms of the Indenture to be incurred, (e) customary non-assignment
provisions in leases entered into in the ordinary course of business and
consistent with past practices, (f) purchase money obligations for property
acquired in the ordinary course of business that impose restrictions of the
nature described in clause (iii) above on the property so acquired, (g) any
agreement for the sale of a Restricted Subsidiary that restricts distributions
by that Restricted Subsidiary pending its sale, (h) Permitted Refinancing
Indebtedness, provided that the restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are no more restrictive, taken
as a whole (as determined in good faith by the Company), than those contained in
the agreements governing the Indebtedness being refinanced, (i) secured
Indebtedness otherwise permitted to be incurred pursuant to the provisions of
the covenant described above under the caption "--Liens" that limits the right
of the debtor to dispose of the assets securing such Indebtedness, (j)
provisions with respect to the disposition or distribution of assets or property
in joint venture agreements and other similar agreements entered into in the
ordinary course of business and (k) restrictions on cash or other deposits or
net worth imposed by customers under contracts entered into in the ordinary
course of business.
MERGER, CONSOLIDATION OR SALE OF ASSETS
The Indenture provides that the Company may not consolidate or merge with
or into (whether or not the Company is the surviving corporation), or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets in one or more related transactions, to another
corporation, Person or entity unless (i) the Company is the surviving
corporation or the entity or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws of the United States,
any state thereof or the District of Columbia; (ii) the entity or Person formed
by or surviving any such consolidation or merger (if other than the Company) or
the entity or Person to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made assumes all the obligations of the
Company under the Registration Rights Agreement, the Notes and the Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee; (iii) immediately after such transaction no Default or Event of Default
exists; and (iv) except in the case of a merger of the Company with or into a
Wholly Owned Subsidiary of the Company, the Company or the entity or Person
formed by or surviving any such consolidation or merger (if other than the
Company), or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made (A) will have Consolidated Net Worth
immediately after the transaction equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction and (B) will, at the
time of
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such transaction and after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable four-quarter period,
be permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first paragraph of the
covenant described above under the caption "--Incurrence of Indebtedness and
Issuance of Preferred Stock."
The entity or the Person formed by or surviving any consolidation or merger
(if other than the Company) will succeed to, and be substituted for, and may
exercise every right and power of, the Company under the Indenture, but, in the
case of a lease of all or substantially all its assets, the Company will not be
released from the obligation to pay the principal of and interest on the Notes.
The provisions concerning merger, consolidation or sale of assets are
proposed to be amended by the Proposed Amendments. See "Description Notes--The
Proposed Amendments."
TRANSACTIONS WITH AFFILIATES
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer
or otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction"),
unless (i) such Affiliate Transaction is on terms that are no less favorable to
the Company or the relevant Restricted Subsidiary than those that would have
been obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) the Company delivers to the Trustee
(a) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $1.0 million, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (i) above and
that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $5.0 million, an opinion as to the fairness
to the Holders of such Affiliate Transaction from a financial point of view
issued by an independent accounting, appraisal or investment banking firm of
national standing. Notwithstanding the foregoing, the following items shall not
be deemed to be Affiliate Transactions: (i) any employment agreement approved by
the Board of Directors and entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and consistent with the past
practice of the Company or such Restricted Subsidiary, (ii) transactions between
or among the Company and/or its Restricted Subsidiaries, (iii) payment of
reasonable directors fees to Persons who are not otherwise Affiliates of the
Company and (iv) Restricted Payments that are permitted by the provisions of the
Indenture described above under the caption "--Restricted Payments."
The provisions concerning Affiliate Transactions are proposed to be amended
by the Proposed Amendments. See "Description of Notes--The Proposed Amendments."
SALE AND LEASEBACK TRANSACTIONS
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, enter into any sale and leaseback
transaction; provided that the Company may enter into a sale and leaseback
transaction if (i) the Company could have (a) incurred Indebtedness in an amount
equal to the Attributable Debt relating to such sale and leaseback transaction
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of the covenant described above under the caption "--Incurrence of
Indebtedness and Issuance of Preferred Stock" and (b) incurred a Lien to secure
such Indebtedness pursuant to the covenant described above under the caption
"--Liens," (ii) the gross cash proceeds of such sale and leaseback transaction
are at least equal to the fair market value (as determined in good faith by the
Board of Directors and set forth in an Officers' Certificate delivered to the
Trustee) of the property that is the subject of such sale and leaseback
transaction and (iii) the transfer of assets in such sale and leaseback
transaction is permitted by, and the Company applies the proceeds of such
transaction in compliance with, the covenant described above under the caption
"--Asset Sales."
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The provisions concerning sale and leaseback transactions are proposed to
be amended by the Proposed Amendments. See "Description of Notes--The Proposed
Amendments."
LIMITATION ON ISSUANCES AND SALES OF EQUITY INTERESTS IN RESTRICTED SUBSIDIARIES
The Indenture provides that the Company (i) will not, and will not permit
any Restricted Subsidiary of the Company to, transfer, convey, sell, lease or
otherwise dispose of any Equity Interests in any Restricted Subsidiary of the
Company to any Person (other than the Company or a Restricted Subsidiary of the
Company), unless (a) such transfer, conveyance, sale, lease or other disposition
is of all the Equity Interests owned by the Company in such Restricted
Subsidiary and (b) the cash Net Proceeds from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with the covenant described
above under the caption "--Repurchase at the Option of Holders--Asset Sales,"
and (ii) will not permit any Restricted Subsidiary of the Company to issue any
of its Equity Interests (other than, if necessary, shares of its Capital Stock
constituting directors' qualifying shares) to any Person other than to the
Company or a Restricted Subsidiary of the Company, except that any Restricted
Subsidiary acquired or created after the date of the Indenture in connection
with an acquisition of a theater (other than any Restricted Subsidiary created
to effect the Pending Acquisitions) may issue Equity Interests representing not
more than 20% of the aggregate Voting Stock of such Restricted Subsidiary to the
seller of such theater as part of the consideration for the acquisition thereof.
BUSINESS ACTIVITIES
The Indenture provides that the Company will not, and will not permit any
Restricted Subsidiary to, engage in any business other than Permitted
Businesses, except to such extent as would not be material to the Company and
its Restricted Subsidiaries taken as a whole.
ADDITIONAL SUBSIDIARY GUARANTEES
The Indenture provides that if the Company or any of its Subsidiaries shall
acquire or create another Restricted Subsidiary after the date of the Indenture,
then such newly acquired or created Restricted Subsidiary shall become a
Subsidiary Guarantor and execute a Supplemental Indenture and deliver an Opinion
of Counsel, in accordance with the terms of the Indenture.
PAYMENTS FOR CONSENT
The Indenture provides that neither the Company nor any of its Subsidiaries
will, directly or indirectly, pay or cause to be paid any consideration, whether
by way of interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of the Indenture or the Notes unless such consideration is offered to be paid or
is paid to all Holders of the Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
REPORTS
The Indenture provides that, whether or not required by the rules and
regulations of the Commission, so long as any Notes are outstanding, the Company
will furnish to the Holders of Notes (i) all quarterly and annual financial
information that would be required to be contained in a filing with the
Commission on Forms 10-Q and 10-K (or 10-QSB or 10-KSB, as applicable) if the
Company were required to file such Forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations," that describes
the financial condition and results of operations of the Company and its
consolidated Subsidiaries (showing in reasonable detail, either on the face of
the financial statements or in the footnotes thereto the financial condition and
results of operations of the Company and its Restricted Subsidiaries separate
from the financial condition and results of operations of the Unrestricted
Subsidiaries of the Company) and, with respect to the annual information only, a
report thereon by the Company's certified independent accountants and (ii) all
current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports, in each case within the
time periods specified in the Commission's rules and regulations. In addition,
following the
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consummation of the Exchange Offer, whether or not required by the rules and
regulations of the Commission, the Company will file a copy of all such
information and reports with the Commission for public availability within the
time periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. In addition, the
Company and the Subsidiary Guarantors have agreed that, for so long as any Notes
remain outstanding, they will furnish to the Holders and to securities analysts
and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
The provisions concerning reports are proposed to be amended by the
Proposed Amendments. See "Description of Notes--The Proposed Amendments."
EVENTS OF DEFAULT AND REMEDIES
The Indenture provides that each of the following constitutes an Event of
Default: (i) default for 30 days in the payment when due of interest on, or
Liquidated Damages with respect to, the Notes ; (ii) default in payment when due
of the principal of or premium, if any, on the Notes (including, without
limitation, pursuant to the provisions described under the captions
"--Repurchase at the Option of Holders--Change of Control" and "--Repurchase at
the Option of Holders--Asset Sales"); (iii) failure by the Company or any of its
Subsidiaries to comply with the provisions described under the caption
"--Merger, Consolidation or Sale of Assets"; (iv) failure by the Company or any
of its Subsidiaries for 30 days after notice to comply with any of its other
agreements in the Indenture or the Notes; (v) default under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Subsidiaries (or the payment of which is guaranteed by the Company or any
of its Subsidiaries) whether such Indebtedness or guarantee now exists, or is
created after the date of the Indenture, which default (a) is caused by a
failure to pay principal of or premium, if any, or interest on such Indebtedness
prior to the expiration of the grace period provided in such Indebtedness on the
date of such default (a "Payment Default") or (b) results in the acceleration of
such Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $5.0 million or more; (vi) failure
by the Company or any of its Subsidiaries to pay final judgments aggregating in
excess of $5.0 million, which judgments are not paid, discharged or stayed for a
period of 60 days; (vii) certain events of bankruptcy or insolvency with respect
to the Company or any of its Significant Subsidiaries; and (viii) except as
permitted by the Indenture, any Subsidiary Guarantee shall be held in any
judicial proceeding to be unenforceable or invalid or shall cease for any reason
to be in full force and effect or any Subsidiary Guarantor, or any Person acting
on behalf of any Subsidiary Guarantor, shall deny or disaffirm its obligations
under its Subsidiary Guarantee.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, with respect to the Company, any Significant
Subsidiary or any group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes will become due and payable
without further action or notice. Holders of the Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have had
to pay if the Company then had elected to redeem the Notes pursuant to the
optional redemption provisions of the Indenture and if the maturity of the Notes
is accelerated, an equivalent premium shall also become and be immediately due
and payable to the extent permitted by law upon the acceleration of the Notes.
If an Event of Default occurs prior to June 1, 2003 and if the maturity of the
Notes is accelerated, by reason of any willful action (or inaction) taken (or
not taken) by or on behalf of the Company with the intention of avoiding the
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prohibition on redemption of the Notes prior to June 1, 2003, then the premium
specified in the Indenture shall also become immediately due and payable to the
extent permitted by law upon the acceleration of the Notes.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
No director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Notes, the Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Company may, at its option and at any time, elect to have all of its
obligations discharged with respect to the outstanding Notes ("Legal
Defeasance") except for (i) the rights of Holders of outstanding Notes to
receive payments in respect of the principal of, premium, if any, and interest
on such Notes when such payments are due from the trust referred to below, (ii)
the Company's obligations with respect to the Notes concerning issuing temporary
Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the
maintenance of an office or agency for payment and money for security payments
held in trust, (iii) the rights, powers, trusts, duties and immunities of the
Trustee, and the Company's obligations in connection therewith and (iv) the
Legal Defeasance provisions of the Indenture. In addition, the Company may, at
its option and at any time, elect to have the obligations of the Company
released with respect to certain covenants that are described in the Indenture
("Covenant Defeasance") and thereafter any omission to comply with such
obligations shall not constitute a Default or Event of Default with respect to
the Notes. In the event Covenant Defeasance occurs, certain events (not
including non-payment, bankruptcy, receivership, rehabilitation and insolvency
events) described under "Events of Default" will no longer constitute an Event
of Default with respect to the Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance, (i)
the Company must irrevocably deposit with the Trustee, in trust, for the benefit
of the Holders of the Notes, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants,
to pay the principal of, premium, if any, and interest on the outstanding Notes
on the stated maturity or on the applicable redemption date, as the case may be,
and the Company must specify whether the Notes are being defeased to maturity or
to a particular redemption date; (ii) in the case of Legal Defeasance, the
Company shall have delivered to the Trustee an opinion of counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of the Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such opinion of counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred; (iii) in the
case of Covenant Defeasance the Company shall have delivered to the Trustee an
opinion of counsel in the United States reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred; (iv) no
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Default or Event of Default shall have occurred and be continuing on the date of
such deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit) or insofar as Events of
Default from bankruptcy or insolvency events are concerned, at any time in the
period ending on the 123rd day after the date of deposit; (v) such Legal
Defeasance or Covenant Defeasance will not result in a breach or violation of,
or constitute a default under any material agreement or instrument (other than
the Indenture) to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Restricted Subsidiaries is bound; (vi) the
Company must have delivered to the Trustee an opinion of counsel to the effect
that after the 123rd day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally; (vii) the Company must
deliver to the Trustee an Officers' Certificate stating that the deposit was not
made by the Company with the intent of preferring the Holders of Notes over the
other creditors of the Company with the intent of defeating, hindering, delaying
or defrauding creditors of the Company or others; and (viii) the Company must
deliver to the Trustee an Officers' Certificate and an opinion of counsel, each
stating that all conditions precedent provided for relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
TRANSFER AND EXCHANGE
A Holder may transfer or exchange Notes in accordance with the Indenture.
The Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Company is not required to transfer or exchange any Note selected
for redemption. Also, the Company is not required to transfer or exchange any
Note for a period of 15 days before a selection of Notes to be redeemed.
The registered Holder of a Note will be treated as the owner of it for all
purposes.
AMENDMENT, SUPPLEMENT AND WAIVER
Except as provided in the next two succeeding paragraphs, the Indenture or
the Notes may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Notes), and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange for, Notes).
Without the consent of each Holder affected, an amendment or waiver may not
(with respect to any Notes held by a non-consenting Holder): (i) reduce the
principal amount of Notes whose Holders must consent to an amendment, supplement
or waiver, (ii) reduce the principal of or change the fixed maturity of any Note
or alter the provisions with respect to the redemption of the Notes (other than
provisions relating to the covenants described above under the caption
"--Repurchase at the Option of Holders"), (iii) reduce the rate of or change the
time for payment of interest on any Note, (iv) waive a Default or Event of
Default in the payment of principal of or premium, if any, or interest on the
Notes (except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the Notes and a waiver of the
payment default that resulted from such acceleration), (v) make any Note payable
in money other than that stated in the Notes, (vi) make any change in the
provisions of the Indenture relating to waivers of past Defaults or the rights
of Holders of Notes to receive payments of principal of or premium, if any, or
interest on the Notes, (vii) waive a redemption payment with respect to any Note
(other than a payment required by one of the covenants described above under the
caption "--Repurchase at the Option of Holders") or (viii) make any change in
the foregoing amendment and waiver provisions.
Notwithstanding the foregoing, without the consent of any Holder of Notes,
the Company and the Trustee may amend or supplement the Indenture or the Notes
to cure any ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to provide for the
assumption of the Company's obligations to Holders of Notes in the case of a
merger or consolidation or sale of all or substantially all of the Company's
assets, to add additional Subsidiary Guarantees or release any Subsidiary
Guarantees in
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accordance with the terms of the Indenture, to make any change that would
provide any additional rights or benefits to the Holders of Notes or that does
not adversely affect the legal rights under the Indenture of any such Holder, or
to comply with requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
CONCERNING THE TRUSTEE
The Indenture contains certain limitations on the rights of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any such
claim as security or otherwise. The Trustee will be permitted to engage in other
transactions; however, if it acquires any conflicting interest it must eliminate
such conflict within 90 days, apply to the Commission for permission to continue
or resign.
The Holders of a majority in principal amount of the then outstanding Notes
will have the right to direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee, subject to
certain exceptions. The Indenture provides that in case an Event of Default
shall occur (which shall not be cured), the Trustee will be required, in the
exercise of its power, to use the degree of care of a prudent man in the conduct
of his own affairs. Subject to such provisions, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request of any Holder of Notes, unless such Holder shall have offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or
expense.
ADDITIONAL INFORMATION
Anyone who receives this Prospectus may obtain a copy of the Indenture and
the Registration Rights Agreement without charge by writing to Clearview Cinema
Group, Inc., 97 Main Street, Chatham, NJ 07928, Attention: Chief Financial
Officer.
BOOK-ENTRY, DELIVERY AND FORM
Rule 144A Notes initially will be represented by one or more Notes in
registered, global form without interest coupons (collectively, the "Rule 144A
Global Notes"). Regulation S Notes initially will be represented by one or more
Notes in registered, global form without interest coupons (collectively, the
"Regulation S Global Notes" and, together with the Rule 144A Global Notes, the
"Global Notes"). The Global Notes will be deposited upon issuance with the
Trustee as custodian for The Depository Trust Company ("DTC"), in New York, New
York, and registered in the name of DTC or its nominee, Cede & Co. (the "Global
Note Holder"), in each case for credit to an account of a direct or indirect
participant in DTC as described below.
Except as set forth below, the Global Notes may be transferred, in whole
and not in part, only to another nominee of DTC or to a successor of DTC or its
nominee. Beneficial interests in the Global Notes may not be exchanged for Notes
in certificated form except in the limited circumstances described below. See
"--Exchange of Book-Entry Notes for Certificated Notes." Except in the limited
circumstances described below, owners of beneficial interests in the Global
Notes will not be entitled to receive physical delivery of Certificated
Securities (as defined).
Initially, the Trustee will act as Paying Agent and Registrar. The Notes
may be presented for registration of transfer and exchange at the offices of the
Registrar.
DTC PROCEDURES
The following description of the operations and procedures of the DTC,
Euroclear and Cedel are provided solely as a matter of convenience. These
operations and procedures are solely within the control of the respective
settlement systems and are subject to changes by them from time to time. The
Company takes no responsibility for these operations and procedures and urges
investors to contact the system or their participants directly to discuss these
matters.
The DTC has advised the Company that the DTC is a limited-purpose trust
company created to hold securities for the Participants and to facilitate the
clearance and settlement of transactions in those securities
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between Participants through electronic book-entry changes in accounts of its
Participants. The Participants include securities brokers and dealers (including
the Initial Purchaser), banks, trust companies, clearing corporations and
certain other organizations. Access to the DTC's system is also available to
other entities such as banks, brokers, dealers and trust companies that clear
through or maintain a custodial relationship with a Participant, either directly
or indirectly (collectively, the "Indirect Participants"). Persons who are not
Participants may beneficially own securities held by or on behalf of the DTC
only through the Participants or the Indirect Participants. The ownership
interests in, and transfers of ownership interests in, each security held by or
on behalf of the DTC are recorded on the records of the Participants and
Indirect Participants.
The DTC has also advised the Company that, pursuant to procedures
established by it, (i) upon deposit of the Global Notes, the DTC will credit the
accounts of Participants designated by the Initial Purchaser with portions of
the principal amount of the Global Notes and (ii) ownership of such interests in
the Global Notes will be shown on, and the transfer of ownership thereof will be
effected only through, records maintained by the DTC (with respect to the
Participants) or by the Participants and the Indirect Participants (with respect
to other owners of beneficial interest in the Global Notes).
Investors in the Rule 144A Global Notes may hold their interests therein
directly through the DTC, if they are Participants in such system, or indirectly
through organizations (including Euroclear and Cedel) which are Participants in
such system. Investors in the Regulation S Global Notes must initially hold
their interests therein through Euroclear or Cedel, if they are participants in
such systems, or indirectly through organizations that are participants in such
systems. After the expiration of the Restricted Period (but not earlier),
investors may also hold interests in the Regulation S Global Notes through
Participants in the DTC system other than Euroclear and Cedel. Euroclear and
Cedel will hold interests in the Regulation S Global Notes on behalf of their
participants through customers' securities accounts in their respective names on
the books of their respective depositories, which are Morgan Guaranty Trust
Company of New York, Brussels office, as operator of Euroclear, and Citibank,
N.A., as operator of Cedel. All interests in a Global Note, including those held
through Euroclear or Cedel, may be subject to the procedures and requirements of
the DTC. Those interests held through Euroclear or Cedel may also be subject to
the procedures and requirements of such systems. The laws of some states require
that certain persons take physical delivery in definitive form of securities
that they own. Consequently, the ability to transfer beneficial interests in a
Global Note to such persons will be limited to that extent. Because the DTC can
act only on behalf of Participants, which in turn act on behalf of Indirect
Participants and certain banks, the ability of a person having beneficial
interests in a Global Note to pledge such interests to persons or entities that
do not participate in the DTC system, or otherwise take actions in respect of
such interests, may be affected by the lack of a physical certificate evidencing
such interests.
EXCEPT AS DESCRIBED BELOW, OWNERS OF INTEREST IN THE GLOBAL NOTES WILL NOT
HAVE NOTES REGISTERED IN THEIR NAMES, WILL NOT RECEIVE PHYSICAL DELIVERY OF
NOTES IN CERTIFICATED FORM AND WILL NOT BE CONSIDERED THE REGISTERED OWNERS OR
"HOLDERS" THEREOF UNDER THE INDENTURE FOR ANY PURPOSE.
Payments in respect of the principal of, and premium, if any, Liquidated
Damages, if any, and interest on a Global Note registered in the name of the DTC
or its nominee will be payable to the DTC in its capacity as the registered
Holder under the Indenture. Under the terms of the Indenture, the Company and
the Trustee will treat the persons in whose names the Notes, including the
Global Notes, are registered as the owners thereof for the purpose of receiving
such payments and for any and all other purposes whatsoever. Consequently,
neither the Company, the Trustee nor any agent of the Company or the Trustee has
or will have any responsibility or liability for (i) any aspect of the DTC's
records or any Participant's or Indirect Participant's records relating to or
payments made on account of beneficial ownership interest in the Global Notes,
or for maintaining, supervising or reviewing any of the DTC's records or any
Participant's or Indirect Participant's records relating to the beneficial
ownership interests in the Global Notes or (ii) any other matter relating to the
actions and practices of the DTC or any of its Participants or Indirect
Participants. The DTC has advised the Company that its current practice, upon
receipt of any payment in respect of securities such as the Notes (including
principal and interest), is to credit the accounts of the relevant Participants
with the payment on the payment date, in amounts proportionate to their
respective holdings in the principal amount of beneficial interest in the
relevant security as shown on the records of the DTC unless the DTC has reason
to believe it will not receive payment on such payment date. Payments by the
Participants and the Indirect Participants to the beneficial owners of Notes
will be
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governed by standing instructions and customary practices and will be the
responsibility of the Participants or the Indirect Participants and will not be
the responsibility of the DTC, the Trustee or the Company. Neither the Company
nor the Trustee will be liable for any delay by the DTC or any of its
Participants in identifying the beneficial owners of the Notes, and the Company
and the Trustee may conclusively rely on and will be protected in relying on
instructions from the DTC or its nominee for all purposes.
Except for trades involving only Euroclear and Cedel participants, interest
in the Global Notes are expected to be eligible to trade in the DTC's Same-Day
Funds Settlement System and secondary market trading activity in such interests
will, therefore, settle in immediately available funds, subject in all cases to
the rules and procedures of the DTC and its Participants. See "--Same Day
Settlement and Payment."
The DTC has advised the Company that it will take any action permitted to
be taken by a Holder of Notes only at the direction of one or more Participants
to whose account the DTC has credited the interests in the Global Notes and only
in respect of such portion of the aggregate principal amount of the Notes as to
which such Participant or Participants has or have given such direction.
However, if there is an Event of Default under the Notes, the DTC reserves the
right to exchange the Global Notes for legended Notes in certificated form, and
to distribute such Notes to its Participants.
Although the DTC, Euroclear and Cedel have agreed to the foregoing
procedures to facilitate transfers of interests in the Regulation S Global Notes
and in the Rule 144A Global Notes among Participants in the DTC, Euroclear and
Cedel, they are under no obligation to perform or to continue to perform such
procedures, and such procedures may be discontinued at any time. Neither the
Company nor the Trustee nor any of their respective agents will have any
responsibility for the performance by the DTC, Euroclear or Cedel or their
respective participants or indirect participants of their respective obligations
under the rules and procedures governing their operations.
EXCHANGE OF BOOK-ENTRY NOTES FOR CERTIFICATED SECURITIES
A Global Note is exchangeable for definitive Certificated Securities if (i)
the DTC (x) notifies the Company that it is unwilling or unable to continue as
the depositary for the Global Notes and the Company thereupon fails to appoint a
successor depositary or (y) has ceased to be a clearing agency registered under
the Exchange Act, (ii) the Company, at its option, notifies the Trustee in
writing that it elects to cause the issuance of the Certificated Securities or
(iii) there shall have occurred and be continuing a Default or Event of Default
with respect to the Notes. In addition, beneficial interests in a Global Note
may be exchanged for Certificated Securities upon request but only upon prior
written notice given to the Trustee by or on behalf of the DTC in accordance
with the Indenture. In all cases, Certificated Securities delivered in exchange
for any Global Note or beneficial interests therein will be registered in the
names, and issued in any approved denominations, requested by or on behalf of
the DTC (in accordance with its customary procedures) and will bear the
applicable restrictive legend referred to in "Notice to Investors," unless the
Company determines otherwise in compliance with applicable law.
EXCHANGE OF CERTIFICATED SECURITIES FOR BOOK-ENTRY NOTES
Notes issued in certificated form may not be exchanged for beneficial
interests in any Global Note unless the transferor first delivers to the Trustee
a written certificate (in the form provided in the Indenture) to the effect that
such transfer will comply with the appropriate transfer restrictions applicable
to such Notes. See "Notice to Investors."
SAME DAY SETTLEMENT AND PAYMENT
The Indenture requires that payments in respect of the Notes represented by
the Global Notes (including principal, premium, if any, interest and Liquidated
Damages, if any) be made by wire transfer of immediately available funds to the
accounts specified by the Global Note Holder. With respect to Notes in
certificated form, the Company will make all payments of principal, premium, if
any, interest and Liquidated Damages, if any, by wire transfer of immediately
available funds to the accounts specified by the Holders thereof or, if no such
account is specified, by mailing a check to each such Holder's registered
address. The Notes represented by the Global Notes are expected to be eligible
to trade in the PORTAL market and to trade in the DTC's Same-Day
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Funds Settlement System, and any permitted market trading activity in such Notes
will, therefore, be required by the DTC to be settled in immediately available
funds. The Company expects that secondary trading in any Certificated Securities
will also be settled in immediately available funds.
Because of time zone differences, the securities account of a Euroclear or
Cedel participant purchasing an interest in a Global Note from a Participant in
the DTC will be credited, and any such crediting will be reported to the
relevant Euroclear or Cedel participant, during the securities settlement
processing day (which must be a business day for Euroclear and Cedel)
immediately following the settlement date of the DTC. The DTC has advised the
Company that cash received in Euroclear or Cedel as a result of sales of
interests in a Global Note by or through a Euroclear or Cedel participant to a
Participant in the DTC will be received with value on the settlement date of the
DTC but will be available in the relevant Euroclear or Cedel cash account only
as of the business day for Euroclear or Cedel following the DTC's settlement
date.
REGISTRATION RIGHTS; LIQUIDATED DAMAGES
The Company and the Initial Purchaser are parties to the Registration
Rights Agreement, pursuant to which the Company agreed to file with the
Commission the Registration Statement and to make the Exchange Offer. If (i) the
Company is not permitted to consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or Commission policy or (ii) any Holder
of Transfer Restricted Securities notifies the Company after consummation of the
Exchange Offer and on or prior to the 20th day following consummation of the
Exchange Offer that (A) it is prohibited by law or Commission policy from
participating in the Exchange Offer or (B) that it may not resell the New Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and the prospectus contained in the Registration Statement is not
appropriate or available for such resales or (C) that it is a broker-dealer and
owns Notes acquired directly from the Company or an affiliate of the Company,
the Company will use its best efforts to file with the Commission a Shelf
Registration Statement to cover resales of the Notes by the Holders thereof who
satisfy certain conditions relating to the provision of information in
connection with the Shelf Registration Statement and to cause the applicable
registration statement to be declared effective as promptly as possible by the
Commission. For purposes of the foregoing, "Transfer Restricted Securities"
means each Note until the earliest to occur of (i) the date on which such Note
has been exchanged by a person other than a broker-dealer for a New Note in the
Exchange Offer, (ii) following the exchange by a broker-dealer in the Exchange
Offer of a Note for a New Note, the date on which such New Note is sold to a
purchaser who receives from such broker-dealer on or prior to the date of such
sale a copy of the prospectus contained in the Registration Statement, (iii) the
date on which such Note has been effectively registered under the Securities Act
and disposed of in accordance with the Shelf Registration Statement or (iv) the
date on which such Note is distributed to the public pursuant to Rule 144 under
the Act.
The Registration Rights Agreement provides that (i) unless the Exchange
Offer would not be permitted by applicable law or Commission policy, the Company
will use its best efforts to issue on or prior to 30 business days after the
date on which the Registration Statement was declared effective by the
Commission, New Notes in exchange for all Notes tendered prior thereto in the
Exchange Offer and (ii) if obligated to file the Shelf Registration Statement,
the Company will use its best efforts to file the Shelf Registration Statement
with the Commission on or prior to 60 days after such filing obligation arises
and to cause the Shelf Registration to be declared effective by the Commission
on or prior to 150 days thereafter. If (a) the Company fails to file any of the
Registration Statements required by the Registration Rights Agreement on or
before the date specified for such filing, (b) any of such Registration
Statements is not declared effective by the Commission on or prior to the date
specified for such effectiveness (the "Effectiveness Target Date"), or (c) the
Company fails to consummate the Exchange Offer within 30 business days of the
Effectiveness Target Date with respect to the Registration Statement, or (d) the
Shelf Registration Statement or the Registration Statement is declared effective
but thereafter ceases to be effective or usable in connection with resales of
Transfer Restricted Securities during the periods specified in the Registration
Rights Agreement (other than during a specified suspension period) (each such
event referred to in clauses (a) through (d) above a "Registration Default"),
then the Company will pay Liquidated Damages to each Holder of Transfer
Restricted Securities, with respect to the first 90-day period immediately
following the occurrence of such Registration Default in an amount equal to $.05
per week per $1,000 principal amount of Notes held by such Holder. The amount of
the Liquidated Damages will increase by
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an additional $.05 per week per $1,000 in principal amount of Notes with respect
to each subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of Liquidated Damages for all Registration
Defaults of $.50 per week per $1,000 principal amount of Transfer Restricted
Securities. All accrued Liquidated Damages will be paid by the Company on each
Interest Payment Date by depositing with the Trustee for the benefit of the
Holders entitled thereto immediately available funds in sums sufficient to pay
such Liquidated Damages. Following the cure of all Registration Defaults, the
accrual of Liquidated Damages will cease.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Indenture. Reference
is made to the Indenture for a full disclosure of all such terms, as well as any
other capitalized terms used herein for which no definition is provided.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition of
any assets or rights (including, without limitation, by way of a sale and
leaseback) other than sales of inventory in the ordinary course of business
consistent with past practices (provided that the sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company and
its Subsidiaries taken as a whole will be governed by the provisions of the
Indenture described above under the caption "--Change of Control" and/or the
provisions described above under the caption "--Merger, Consolidation or Sale of
Assets" and not by the provisions of the Asset Sale covenant), and (ii) the
issue or sale by the Company or any of its Restricted Subsidiaries of Equity
Interests of any of the Company's Subsidiaries, in the case of either clause (i)
or (ii), whether in a single transaction or a series of related transactions (a)
that have a fair market value in excess of $500,000 or (b) for net proceeds in
excess of $500,000. Notwithstanding the foregoing, the following items shall not
be deemed to be Asset Sales: (i) a transfer of assets by the Company to a
Restricted Subsidiary that is a Subsidiary Guarantor or by a Restricted
Subsidiary to the Company or to another Restricted Subsidiary that is a
Subsidiary Guarantor, (ii) an issuance of Equity Interests by a Restricted
Subsidiary to the Company or to another Restricted Subsidiary, (iii) a
Restricted Payment that is permitted by the covenant described above under the
caption "--Restricted Payments" and (iv) dispositions of Cash Equivalents.
"Attributable Debt" in respect of a sale and leaseback transaction means,
at the time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests
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(whether general or limited) and (iv) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses, of,
or distributions of assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof (provided that the full faith and credit
of the United States is pledged in support thereof) having maturities of not
more than six months from the date of acquisition, (iii) certificates of deposit
and eurodollar time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding six months
and overnight bank deposits, in each case with any lender party to the New
Credit Facility or with any domestic commercial bank having capital and surplus
in excess of $500 million and a Thompson Bank Watch Rating of "B" or better,
(iv) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (ii) and (iii) above
entered into with any financial institution meeting the qualifications specified
in clause (iii) above, (v) commercial paper having the highest rating obtainable
from Moody's Investors Service, Inc. or Standard & Poor's Corporation and in
each case maturing within six months after the date of acquisition and (vi)
money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (i) -- (v) of this definition.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (i) an amount
equal to any extraordinary loss plus any net loss realized in connection with an
Asset Sale (to the extent such losses were deducted in computing such
Consolidated Net Income), plus (ii) provision for taxes based on income or
profits of such Person and its Restricted Subsidiaries for such period, to the
extent that such provision for taxes was included in computing such Consolidated
Net Income, plus (iii) consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued and whether or
not capitalized (including, without limitation, amortization of debt issuance
costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments (if any) pursuant to Hedging
Obligations), to the extent that any such expense was deducted in computing such
Consolidated Net Income, plus (iv) depreciation, amortization (including
amortization of goodwill and other intangibles but excluding amortization of
prepaid cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it represents
an accrual of or reserve for cash expenses in any future period or amortization
of a prepaid cash expense that was paid in a prior period) of such Person and
its Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income, minus (v) non-cash items increasing such
Consolidated Net Income for such period (other than any item that was accrued in
the ordinary course of business), in each case, on a consolidated basis and
determined in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof that is a Subsidiary Guarantor, (ii) the Net Income of any
Restricted Subsidiary shall be excluded to the extent that the declaration or
payment of dividends or similar distributions by that Restricted Subsidiary of
that Net Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders, (iii) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition shall be excluded, (iv) the cumulative effect of a change in
accounting principles shall be excluded and (v) the Net Income (but not loss) of
any Unrestricted Subsidiary shall be excluded, whether or not distributed to the
Company or one of its Subsidiaries.
"Consolidated Net Tangible Assets" means, with respect to the Company and
its Restricted Subsidiaries, the total amount of consolidated assets of the
Company and its Restricted Subsidiaries (less applicable reserves and
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other properly deductible items), determined on a consolidated basis and in
accordance with GAAP, after deducting therefrom (i) all current liability items
and (ii) all goodwill, trade names, trademarks, service marks, patents,
unamortized debt discount and expense, and all other intangibles.
"Consolidated Net Worth" means, with respect to any Person as of any date,
the sum of (i) the consolidated equity of the common stockholders of such Person
and its consolidated Subsidiaries as of such date plus (ii) the respective
amounts reported on such Person's balance sheet as of such date with respect to
any series of preferred stock (other than Disqualified Stock) that by its terms
is not entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months after the acquisition
of such business) subsequent to the date of the Indenture in the book value of
any asset owned by such Person or a consolidated Subsidiary of such Person, (y)
all investments as of such date in unconsolidated Subsidiaries and in Persons
that are not Subsidiaries (except, in each case, Permitted Investments), and (z)
all unamortized debt discount and expense and unamortized deferred charges as of
such date, all of the foregoing determined in accordance with GAAP.
"Credit Facilities" means, with respect to the Company, one or more debt
facilities (including, without limitation, the New Credit Facility) or
commercial paper facilities with banks or other institutional lenders providing
for revolving credit loans, term loans, receivables financing (including through
the sale of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of credit, in each
case, as amended, restated, modified, renewed, refunded, replaced or refinanced
in whole or in part from time to time. Indebtedness under Credit Facilities
outstanding on the date on which Notes are first issued and authenticated under
the Indenture shall be deemed to have been incurred on such date in reliance on
the exception provided by clause (i) of the definition of Permitted Debt.
"Default" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, at the option of the holder thereof), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the Holder thereof, in
whole or in part, on or prior to the date that is 91 days after the date on
which the Notes mature; provided, however, that any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof have the right
to require the Company to repurchase such Capital Stock upon the occurrence of a
Change of Control or an Asset Sale shall not constitute Disqualified Stock if
the terms of such Capital Stock provide that the Company may not repurchase or
redeem any such Capital Stock pursuant to such provisions unless such repurchase
or redemption complies with the covenant described above under the caption
"--Certain Covenants--Restricted Payments."
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Existing Indebtedness" means up to $1.0 million in aggregate principal
amount of Indebtedness of the Company and its Subsidiaries (other than
Indebtedness under the New Credit Facility) in existence on the date of the
Indenture, until such amounts are repaid.
"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person and
its Restricted Subsidiaries for such period. In the event that the referent
Person or any of its Restricted Subsidiaries incurs, assumes, Guarantees or
redeems any Indebtedness (other than revolving credit borrowings) or issues or
redeems preferred stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated but prior to the date on
which the event for which the calculation of the Fixed Charge Coverage Ratio is
made (the "Calculation Date"), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption, Guarantee or
redemption of Indebtedness, or such issuance or redemption of preferred stock,
as if the same had occurred at the
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beginning of the applicable four-quarter reference period. In addition, for
purposes of making the computation referred to above, (i) acquisitions that have
been made by the Company or any of its Restricted Subsidiaries, including
through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated without giving effect to
clause (iii) of the proviso set forth in the definition of Consolidated Net
Income (and Consolidated Cash Flow related to any such acquisition shall be
calculated on a pro forma basis giving effect to any pro forma expense and cost
reductions as determined by the Company in accordance with Article 11 of
Regulation S-X under the Securities Act), and (ii) the Consolidated Cash Flow
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall be
excluded and (iii) the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, but only to the extent that
the obligations giving rise to such Fixed Charges will not be obligations of the
referent Person or any of its Restricted Subsidiaries following the Calculation
Date.
"Fixed Charges" means, with respect to any Person for any period, the sum,
without duplication, of (i) the consolidated interest expense of such Person and
its Restricted Subsidiaries for such period, whether paid or accrued (including,
without limitation, amortization of debt issuance costs (other than debt
issuance costs in respect of the Notes and the execution of the New Credit
Facility on the date of the Indenture) and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net payments (if any) pursuant to Hedging
Obligations) and (ii) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period, and (iii) any
interest expense on Indebtedness of another Person that is Guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of
such Person or one of its Restricted Subsidiaries (whether or not such Guarantee
or Lien is called upon) and (iv) the product of (a) all dividend payments,
whether or not in cash, on any series of preferred stock of such Person or any
of its Restricted Subsidiaries, other than dividend payments on Equity Interests
payable solely in Equity Interests of the Company (other than Disqualified
Stock) or to the Company or a Restricted Subsidiary of the Company, times (b) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local statutory tax rate of
such Person, expressed as a decimal, in each case, on a consolidated basis and
in accordance with GAAP.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof), of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all Indebtedness of others secured
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by a Lien on any asset of such Person (whether or not such Indebtedness is
assumed by such Person) and, to the extent not otherwise included, the Guarantee
by such Person of any indebtedness of any other Person. The amount of any
Indebtedness outstanding as of any date shall be (i) the accreted value thereof,
in the case of any Indebtedness issued with original issue discount, and (ii)
the principal amount thereof, together with any interest thereon that is more
than 30 days past due, in the case of any other Indebtedness.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Subsidiary of the
Company such that, after giving effect to any such sale or disposition, such
Person is no longer a Restricted Subsidiary of the Company, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Equity Interests of such Subsidiary not
sold or disposed of in an amount determined as provided in the final paragraph
of the covenant described above under the caption "--Restricted Payments."
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (ii) any extraordinary gain or loss, together
with any related provision for taxes on such extraordinary gain or loss.
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"New Credit Facility" means that certain Credit Agreement, dated as of June
12, 1998, by and among the Company and The Provident Bank, including any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed, refunded,
replaced or refinanced from time to time (including, without limitation,
involving any increase in amount or replacement lender).
"Non-Recourse Debt" means Indebtedness (i) as to which neither the Company
nor any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a guarantor or
otherwise), or (c) constitutes the lender, and (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness (other than
the Notes being offered hereby) of the Company or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity.
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"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Pending Acquisitions" means the proposed acquisitions of the Colony
Cinemas in Livingston, N.J. and the West Milford Cinemas in West Milford, N.J.
movie theaters.
"Permitted Business" means the business being operated by the Company and
its Restricted Subsidiaries on the date of the Indenture and any other business
related, ancillary or complementary to any such business as determined in good
faith by the Board of Directors from time to time.
"Permitted Investments" means (i) any Investment in the Company or in a
Restricted Subsidiary of the Company that is a Subsidiary Guarantor, (ii) any
Investment in Cash Equivalents; (iii) any Investment by the Company or any
Restricted Subsidiary of the Company in a Person, if as a result of such
Investment (A) such Person becomes a Restricted Subsidiary of the Company and a
Subsidiary Guarantor or (B) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company that is a
Subsidiary Guarantor; (iv) any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with the covenant described above under the caption "--Repurchase at
the Option of Holders--Asset Sales;" (v) any acquisition of assets solely in
exchange for the issuance of Equity Interests (other than Disqualified Stock) of
the Company; (vi) loans or advances to employees made in the ordinary course of
business not to exceed $250,000 at any one time outstanding; and (vii) other
Investments in any Person having an aggregate fair market value (measured on the
date each such Investment was made and without giving effect to subsequent
changes in value), when taken together with all other Investments made pursuant
to this clause (vii) that are at the time outstanding, not to exceed the greater
of $2.5 million or 5% of the Company's Consolidated Net Tangible Assets
determined at the time of each such Investment without giving effect to
subsequent changes in value.
"Permitted Liens" means (i) Liens securing Indebtedness under the New
Credit Facility that was permitted by the terms of the Indenture to be incurred;
(ii) Liens in favor of the Company; (iii) Liens on property of a Person existing
at the time such Person is merged into or consolidated with the Company or any
Restricted Subsidiary of the Company; provided that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with the
Company; (iv) Liens on property existing at the time of acquisition thereof by
the Company or any Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such acquisition; (v) Liens to secure
the performance of statutory obligations, surety or appeal bonds, performance
bonds or other obligations of a like nature incurred in the ordinary course of
business; (vi) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (iv) of the second paragraph of the covenant
entitled "Incurrence of Indebtedness and Issuance of Preferred Stock" covering
only the assets acquired with such Indebtedness; (vii) Liens existing on the
date of the Indenture; (viii) Liens for taxes, assessments or governmental
charges or claims that are not yet delinquent or that are being contested in
good faith by appropriate proceedings promptly instituted and diligently
concluded, provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor; (ix) Liens of
the Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $5.0 million at any one time outstanding and that
(a) are not incurred in connection with the borrowing of money or the obtaining
of advances or credit (other than trade credit in the ordinary course of
business) and (b) do not in the aggregate materially detract from the value of
the property or materially impair the use thereof in the operation of business
by the Company or such Restricted Subsidiary and (x) Liens on assets of
Unrestricted Subsidiaries that secure Non-Recourse Debt of Unrestricted
Subsidiaries.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that: (i) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount of (or accreted value, if applicable), plus
accrued interest on, the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus
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the amount of reasonable expenses incurred in connection therewith); (ii) such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and is subordinated in right of payment to, the Notes on terms at least as
favorable (as determined in good faith by the Company) to the Holders of Notes
as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and (iv) such
Indebtedness is incurred either by the Company or by the Restricted Subsidiary
who is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Act, as such Regulation is in effect on the date
hereof.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Strategic Equity Investment" means an Investment in the Company by a
Strategic Equity Investor.
"Strategic Equity Investor" means, as of any date, any Person (other than
an Affiliate of the Company) engaged in a Permitted Business which has a Total
Equity Market Capitalization of at least $1 billion.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantors" means (i) each Subsidiary in existence on the date
of the Indenture and (ii) any other Subsidiary that executes a Subsidiary
Guarantee in accordance with the provisions of the Indenture, and their
respective successors and assigns.
"Total Equity Market Capitalization" means the product of (i) the average
of the reported closing share prices of the referent Person as of the five
trading days immediately preceding the date of any Strategic Equity Investment
and (ii) the total number of shares outstanding of the referent Person as
reported in the last document publicly filed with the Commission by such Person.
"Unrestricted Subsidiary" means (i) any Subsidiary acquired or created
after the date of the Indenture that is designated by the Board of Directors as
an Unrestricted Subsidiary pursuant to a Board Resolution; but only to the
extent that such Subsidiary: (a) has no Indebtedness other than Non-Recourse
Debt; (b) is not party to any agreement, contract, arrangement or understanding
with the Company or any Restricted Subsidiary of the Company unless the terms of
any such agreement, contract, arrangement or understanding are no less favorable
to the Company or such Restricted Subsidiary than those that might be obtained
at the time from Persons who are not Affiliates of the Company; (c) is a Person
with respect to which neither the Company nor any of its Restricted Subsidiaries
has any direct or indirect obligation (x) to subscribe for additional Equity
Interests or (y) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating results; and (d)
has not guaranteed or otherwise directly or indirectly provided credit support
for any Indebtedness
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of the Company or any of its Restricted Subsidiaries. Any such designation by
the Board of Directors shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions and was permitted by the covenant
described above under the caption "Certain Covenants--Restricted Payments." If,
at any time, any Unrestricted Subsidiary would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of the Indenture and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under the covenant described under the caption
"Incurrence of Indebtedness and Issuance of Preferred Stock," the Company shall
be in default of such covenant). The Board of Directors of the Company may at
any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under the covenant described
under the caption "Certain Covenants--Incurrence of Indebtedness and Issuance of
Preferred Stock," calculated on a pro forma basis as if such designation had
occurred at the beginning of the four-quarter reference period, and (ii) no
Default or Event of Default would be in existence following such designation.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person.
Certain definitions are being amended or deleted, and certain definitions
are being added, by the Proposed Amendments. See "Description of Notes--The
Proposed Amendments."
INDENTURE COMPARISON
The following is a comparison of the Proposed Amendments with the
corresponding existing provisions contained in the Indenture. The following
comparison is qualified in its entirety by reference to the Supplemental
Indenture and the Indenture, copies of which may be obtained from MacKenzie
Partners, Inc., 156 Fifth Avenue, New York, New York 10010, telephone (212)
929-5500 (collect) or (800) 322-2885 (toll free), which is acting as Information
Agent in the Consent Solicitation and Tender Offer. Capitalized terms used and
not defined in this section shall have the meaning ascribed to them in the
Indenture and the Supplemental Indenture.
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Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
EXISTING INDENTURE MODIFIED INDENTURE
- --------------------------------------------- ---------------------------------------------
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS
[Not applicable] "Annualized Operating Cash Flow" means, for
any period of twelve complete consecutive
calendar months, an amount equal to Operating
Cash Flow for such period.
[Not applicable] "Cash Flow Ratio" means, as at any date, the
ratio of (i) the sum of the aggregate
outstanding principal amount of all
Indebtedness of the Company and the
Restricted Subsidiaries determined on a
consolidated basis, but excluding all Hedging
Obligations entered into by the Company or
any Restricted Subsidiary, outstanding on
such date, plus (but without duplication of
Indebtedness supported by letters of credit)
the aggregate undrawn face amount of all
letters of credit outstanding on such date to
(ii) Annualized Operating Cash Flow
determined as at the last day of the most
recent month for which financial information
is available.
For purposes of this definition, the
aggregate outstanding principal amount of all
Indebtedness of the Company and the
Restricted Subsidiaries on a consolidated
basis shall be determined on a pro forma
basis as if the Indebtedness giving rise to
the need to perform such calculation had been
incurred and the proceeds therefrom had been
applied, and all other transactions in
respect of which such Indebtedness is being
incurred has occurred, on the last day of the
most recent month for which financial
information is available. In addition to the
foregoing, for purposes of this definition,
Annualized Operating Cash Flow shall be
calculated on a pro forma basis after giving
effect to (i) the incurrence of Indebtedness
of the Company and the Restricted
Subsidiaries (and the application of the
proceeds therefrom) or repayment of other
Indebtedness at any time subsequent to the
beginning of the twelve month period and on
or prior to the date of determination as if
such incurrence (and the application of the
proceeds thereof), or the repayment, as the
case may be, occurred on the first day of
such period, (ii) any asset dispositions,
asset acquisitions (including any asset
acquisitions giving rise to the need to make
such calculation as a result of the Company
or a Restricted Subsidiary (including an
entity that becomes a Restricted Subsidiary
as a result of such asset acquisition)
incurring, assuming or otherwise becoming
liable for Indebtedness) or Theatre
Completions at any time on or subsequent to
the first day of such twelve month period and
on or
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EXISTING INDENTURE MODIFIED INDENTURE
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prior to the date of determination, as if
such asset disposition, asset acquisition
(including the incurrence, assumption or
liability for any such Indebtedness and also
including Operating Cash Flow associated with
such asset acquisition) or Theatre Completion
occurred on the first day of such twelve
month period, (iii) the effects of
incremental contributions to Operating Cash
Flow the Company reasonably believes in good
faith could have been achieved during such
twelve month period as a result of such asset
acquisition or Theatre Completion (regardless
of whether such incremental contributions
could then be reflected in pro forma
financial statements under GAAP, Regulation
S-X promulgated by the SEC or any other
regulation or policy of the SEC; provided,
however, that such incremental contributions
were identified and quantified in good faith
in an officer's certificate delivered to the
Trustee at the time of any calculation of the
Cash Flow Ratio and (iv) any motion picture
theatre that was permanently closed for
business at any time on or subsequent to the
first day of such twelve month period and on
or prior to the date of determination as if
such theatre was closed on the first day of
such twelve month period.
"Consolidated Cash Flow" means, with respect "Consolidated Cash Flow"
to any Person for any period, the [deleted]
Consolidated Net Income of such Person for
such period plus (i) an amount equal to any
extraordinary loss plus any net loss realized
in connection with an Asset Sale (to the
extent such losses were deducted in computing
such Consolidated Net Income), plus (ii)
provision for taxes based on income or
profits of such Person and its Restricted
Subsidiaries for such period, to the extent
that such provision for taxes was included in
computing such Consolidated Net Income, plus
(iii) consolidated interest expense of such
Person and its Restricted Subsidiaries for
such period, whether paid or accrued and
whether or not capitalized (including,
without limitation, amortization of debt
costs and original issue discount, non-cash
interest payments, the interest component of
any deferred payment obligations, the
interest component of all payments associated
with Capital Lease Obligations, commissions,
discounts and other fees and charges incurred
in respect of letter of credit or bankers'
acceptance financings, and net payments (if
any) pursuant to Hedging Obligations), to the
extent that any such expense was deducted in
computing such Consolidated Net Income, plus
(iv) depreciation, amortization (including
amortization of goodwill and other
intangibles but excluding
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EXISTING INDENTURE MODIFIED INDENTURE
- --------------------------------------------- ---------------------------------------------
amortization of prepaid cash expenses that
were paid in a prior period) and other
non-cash expenses (excluding any such
non-cash expense to the extent that it
represents an accrual of or reserve for cash
expenses in any future period or amortization
of a prepaid cash expense that was paid in a
prior period) of such Person and its
Restricted Subsidiaries for such period to
the extent that such depreciation,
amortization and other non-cash expenses were
deducted in computing such Consolidated Net
Income, minus (v) non-cash items increasing
such Consolidated Net Income for such period
(other than any item that was accrued in the
ordinary course of business), in each case,
on a consolidated basis and determined in
accordance with GAAP.
"Fixed Charge Coverage Ratio" means with "Fixed Charge Coverage Ratio"
respect to any Person for any period, the [deleted]
ratio of the Consolidated Cash Flow of such
Person and its Restricted Subsidiaries for
such period to the Fixed Charges of such
Person and its Restricted Subsidiaries for
such period. In the event that the referent
Person or any of its Restricted Subsidiaries
incurs, assumes, Guarantees or redeems any
Indebtedness (other than revolving credit
borrowings) or issues or redeems preferred
stock subsequent to the commencement of the
period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the
date on which the event for which the
calculation of the Fixed Charge Coverage
Ratio is made (the "Calculation Date"), then
the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such
incurrence, assumption, Guarantee or
redemption of Indebtedness, or such issuance
or redemption of preferred stock, as if the
same had occurred at the beginning of the
applicable four-quarter reference period. In
addition, for purposes of making the
computation referred to above, (i)
acquisitions that have been made by the
Company or any of its Restricted
Subsidiaries, including through mergers or
consolidations and including any related
financing transactions, during the
four-quarter reference period or subsequent
to such reference period and on or prior to
the Calculation Date shall be deemed to have
occurred on the first day of the four-quarter
reference period and Consolidated Cash Flow
for such reference period shall be calculated
without giving effect to clause (iii) of the
proviso set forth in the definition of
Consolidated Net Income (and Consolidated
Cash Flow related to any such acquisition
shall be calculated on a pro forma basis
giving effect to any pro forma expense and
cost reductions as determined by the Company
in accordance with Article 11 of
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EXISTING INDENTURE MODIFIED INDENTURE
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Regulation S-X under the Securities Act), and
(ii) the Consolidated Cash Flow attributable
to discontinued operations, as determined in
accordance with GAAP, and operations or
businesses disposed of prior to the
Calculation Date, shall be excluded and (iii)
the Fixed Charges attributable to
discontinued operations, as determined in
accordance with GAAP and operations or
businesses disposed of prior to the
Calculation Date, shall be excluded, but only
to the extent that the obligations giving
rise to such Fixed Charges will not be
obligations of the referent Person or any of
its Restricted Subsidiaries following the
Calculation Date.
"Fixed Charges" means, with respect to any "Fixed Charges"
Person for any period, the sum, without [deleted]
duplication, of (i) the consolidated interest
expense of such Person and its Restricted
Subsidiaries for such period, whether paid or
accrued (including, without limitation,
amortization of debt issuance costs (other
than debt issuance costs in respect of the
Notes and the execution of the New Credit
Facility on the date of the Indenture) and of
original issue discount, non-cash interest
payments, the interest component of any
deferred payment obligations, the interest
component of all payments associated with
Capital Lease Obligations, imputed interest
with respect to Attributable Debt,
commissions, discounts and other fees and
charges incurred in respect of letter of
credit or bankers' acceptance financings, and
net payments (if any) pursuant to Hedging
Obligations) and (ii) the consolidated
interest of such Person and its Restricted
Subsidiaries that was capitalized during such
period and (iii) any interest expense on
Indebtedness of another Person that is
guaranteed by such Person or one of its
Restricted Subsidiaries or secured by a Lien
on assets of such Person or one of its
Restricted Subsidiaries (whether or not such
guarantee or Lien is called upon) and (iv)
the product of (a) all dividend payments,
whether or not in cash, on any series of
Preferred Stock of such Person or any of its
Restricted Subsidiaries, other than dividend
payments on Equity Interests payable solely
in Equity Interests of the Company (other
than Disqualified Stock) or to the Company or
a Restricted Subsidiary of the Company, times
(b) a fraction, the numerator of which is one
and the denominator of which is one minus the
then current combined federal, state and
local statutory tax rate of such Person,
expressed as a decimal, in each case, on a
consolidated basis and in accordance with
GAAP.
[Not applicable] "Operating Cash Flow" means, for any period,
the sum of the following for the Company and
the Restricted Subsidiaries for such period,
determined on
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EXISTING INDENTURE MODIFIED INDENTURE
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a consolidated basis in accordance with
generally accepted accounting principles: (i)
aggregate operating revenues minus (ii)
aggregate operating expenses (excluding
interest, depreciation and amortization and
the amount of non-cash compensation in
respect of any Company employee incentive
stock programs for such period (not to exceed
in the aggregate for any calendar year 7% of
the Operating Cash Flow for the previous
calendar year) and, to the extent otherwise
included in operating expenses, any losses
resulting from a writeoff or writedown of
Investments by the Company or any Restricted
Subsidiary in Affiliates).
"Permitted Investments" means (i) any "Permitted Investments"
Investment in the Company or in a Restricted [deleted]
Subsidiary of the Company that is a
Subsidiary Guarantor, (ii) any Investment in
Cash Equivalents; (iii) any Investment by the
Company or any Restricted Subsidiary of the
Company in a Person, if as a result of such
Investment (A) such Person becomes a
Restricted Subsidiary of the Company and a
Subsidiary Guarantor or (B) such Person is
merged, consolidated or amalgamated with or
into, or transfers or conveys substantially
all of its assets to, or is liquidated into,
the Company or a Restricted Subsidiary of the
Company that is a Subsidiary Guarantor; (iv)
any Investment made as a result of the
receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in
compliance with the provisions of Section
4.10 hereof; (v) any acquisition of assets
solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of
the Company; (vi) loans or advances to
employees made in the ordinary course of
business not to exceed $250,000 at any one
time outstanding; and (vii) other Investments
in any Person having an aggregate fair market
value (measured on the date each such
Investment was made and without giving effect
to subsequent changes in value), when taken
together with all other Investments made
pursuant to this clause (vii) that are at the
time outstanding, not to exceed the greater
of $2.5 million or 5% of the Company's
Consolidated Net Tangible Assets determined
at the time of each such Investment without
giving effect to subsequent changes in value.
"Restricted Investment" means an Investment "Restricted Investment"
other than a Permitted Investment. [deleted]
[Not applicable] "Theatre Completion" means any motion picture
theatre or screen or enhancement which was
first opened for business during the
applicable period.
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EXISTING INDENTURE MODIFIED INDENTURE
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ARTICLE 4. COVENANTS
SECTION 4.3 REPORTS
(a) Whether or not required by the rules and (a) Whether or not required by the rules and
regulations of the SEC, so long as any Notes regulations of the SEC, so long as any Notes
are outstanding, the Company shall furnish to are outstanding, the Company shall furnish to
the Trustee and the Holders of Notes (i) all the Trustee and the Holders of Notes (i) all
quarterly and annual financial information quarterly and annual financial information
that would be required to be contained in a that would be required to be contained in a
filing with the SEC on Forms 10-Q and 10-K filing with the SEC on Forms 10-Q and 10-K
(or 10-QSB or 10-KSB, as applicable) if the (or 10-QSB or 10-KSB, as applicable) if the
Company were required to file such Forms, Company were required to file such Forms,
including a "Management's Discussion and including, for so long as the Company is
Analysis of Financial Condition and Results required to file reports with the SEC under
of Operations" that describes the financial the Exchange Act, a "Management's Discussion
condition and results of operations of the and Analysis of Financial Condition and
Company and its consolidated Subsidiaries Results of Operations" that describes the
(showing in reasonable detail, either on the financial condition and results of operations
face of the financial statements or in the of the Company and its consolidated
footnotes thereto, the financial condition subsidiaries (showing in reasonable detail,
and results of operations of the Company and either on the face of the financial
its Restricted Subsidiaries separate from the statements or in the footnotes thereto, the
financial condition and results of operations financial condition and results of operations
of the Unrestricted Subsidiaries of the of the Company and its restricted
Company) and, with respect to the annual Subsidiaries separate from the financial
information only, a report thereon by the condition and results of operations of the
Company's certified independent accountants Unrestricted Subsidiaries of the Company)
and (ii) all current reports that would be and, with respect to the annual information
required to be filed with the SEC on Form 8-K only, a report thereon by the Company's
if the Company were required to file such certified independent accountants and (ii)
reports, in each case within the time periods all current reports that would be required to
specified in the SEC's rules and regulations. be filed with the SEC on Form 8-K if the
In addition, following the consummation of Company were required to file such reports,
the exchange offer contemplated by the in each case within the time periods
Registration Rights Agreement, whether or not specified in the SEC's rules and regulations.
required by the rules and regulations of the In addition, following the consummation of
SEC, the Company shall file a copy of all the exchange offer contemplated by the
such information and reports with the SEC for Registration Rights Agreement, whether or not
public availability within the time periods required by the rules and regulations of the
specified in the SEC's rules and regulations SEC, the Company shall file a copy of all
(unless the SEC will not accept such a such information and reports with the SEC for
filing) and make such information available public availability within the time periods
to securities analysts and prospective specified in the SEC's rules and regulations
investors upon request. (unless the SEC will not accept such a
filing) and make such information available
to securities analysts and prospective
investors upon request.
(b) For so long as any Notes remain (b) For so long as any Notes remain
outstanding, the Company and the Subsidiary outstanding, the Company and the Subsidiary
Guarantors shall furnish to the Holders and Guarantors shall furnish to the Holders and
to securities analysts and prospective to securities analysts and prospective
investors, upon their request, the investors, upon their request, the
information required to be delivered pursuant information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act. to Rule 144A(d)(4) under the Securities Act.
(c) Delivery of such reports, information and (c) Delivery of such reports, information and
documents to the Trustee is for informational documents to the Trustee is for informational
purposes only and the Trustee's receipt of purposes only and the Trustee's receipt of
such shall not constitute constructive notice such shall not constitute constructive notice
of any information contained therein or of any information contained therein or
determinable from information contained determinable from information contained
therein, including the Company's therein, including the Company's
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compliance with any of its covenants compliance with any of its covenants
hereunder (as to which the Trustee is hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' entitled to rely exclusively on Officer's
Certificates). Certificates).
SECTION 4.7 RESTRICTED PAYMENTS
The Company shall not, and shall not permit The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, any of its Restricted Subsidiaries to,
directly or indirectly: (i) declare or pay directly or indirectly: (i) declare or pay
any dividend or make any other payment or any dividend or make any other payment or
distribution on account of the Company's or distribution on account of the Company's or
any of its Restricted Subsidiaries' Equity any of its Restricted Subsidiaries' Equity
Interests (including, without limitation, any Interests (including, without limitation, any
payment in connection with any merger or payment in connection with any merger or
consolidation involving the Company or any of consolidation involving the Company or any of
its Restricted Subsidiaries) or to the direct its Restricted Subsidiaries) or to the direct
or indirect holders of the Company's or any or indirect holders of the Company's or any
of its Restricted Subsidiaries' Equity of its Restricted Subsidiaries' Equity
Interests in their capacity as such (other Interests in their capacity as such (other
than dividends or distributions payable in than dividends or distributions payable in
Equity Interests (other than Disqualified Equity Interests (other than Disqualified
Stock) of the Company or to the Company or a Stock) of the Company or to the Company or a
Restricted Subsidiary of the Company); (ii) Restricted Subsidiary of the Company); (ii)
purchase, redeem or otherwise acquire or purchase, redeem or otherwise acquire or
retire for value (including, without retire for value (including, without
limitation, in connection with any merger or limitation, in connection with any merger or
consolidation involving the Company) any consolidation involving the Company) any
Equity Interests of the Company or other Equity Interests of the Company or other
Affiliate of the Company (other than any such Affiliate of the Company (other than any such
Equity Interests owned by the Company or any Equity Interests owned by the Company or any
Restricted Subsidiary); (iii) make any Restricted Subsidiary); and (iii) make any
payment on or with respect to, or purchase, payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or redeem, defease or otherwise acquire or
retire for value any Indebtedness that is retire for value any Indebtedness that is
subordinated to the Notes, except a payment subordinated to the Notes, except a payment
of interest or principal at Stated Maturity; of interest or principal at Stated Maturity;
or (iv) make any Restricted Investment (all [or (iv) make any Restricted Investment] (all
such payments and other actions set forth in such payments and other actions set forth in
clauses (i) through (iv) above being clauses (i) through [(iv)](iii) above being
collectively referred to as "Restricted collectively referred to as "Restricted
Payments"), unless, at the time of and after Payments"), unless, at the time of and after
giving effect to such Restricted Payment: giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have (a) no Default or Event of Default shall have
occurred and be continuing or would occur as occurred and be continuing or would occur as
a consequence thereof; and a consequence thereof; and
(b) the Company would, at the time of such (b) the Company would, at the time of such
Restricted Payment and after giving pro forma Restricted Payment and after giving pro forma
effect thereto as if such Restricted Payment effect thereto as if such Restricted Payment
had been made at the beginning of the had been made at the beginning of the
applicable four-quarter period, have been applicable [four-quarter] period, have been
permitted to incur at least $1.00 of permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed additional Indebtedness pursuant to the [Fixed
Charge Coverage Ratio test set forth in the Charge Coverage] Cash Flow Ratio test set
first paragraph of the covenant described forth in the first paragraph of the covenant
below under Section 4.9 hereof; and described below under Section 4.9 hereof; and
(c) such Restricted Payment, together with (c) such Restricted Payment, together with
the aggregate amount of all other Restricted the aggregate amount of all other Restricted
Payments made by the Company and its Payments made by the Company and its
Restricted Subsidiaries Restricted Subsidiaries
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after the date of the Indenture (excluding after the date of the Indenture (excluding
Restricted Payments permitted by clauses Restricted Payments permitted by clauses
(ii), (iii), (iv), (vi) and (vii) of the next (ii), (iii), (iv), (vi) and (vii) of the next
succeeding paragraph), is less than the sum, succeeding paragraph), is less than the sum,
without duplication, of (i) 50% of the without duplication, of (i) $25.0 million,
Consolidated Net Income of the Company for plus (ii), 50% of the Consolidated Net Income
the period (taken as one accounting period) of the Company for the period (taken as one
from the beginning of the first fiscal accounting period) from the beginning of the
quarter commencing after the date of the first fiscal quarter commencing after the
Indenture to the end of the Company's most date of the Indenture to the end of the
recently ended fiscal quarter for which Company's most recently ended fiscal quarter
internal financial statements are available for which internal financial statements are
at the time of such Restricted Payment (or, available at the time of such Restricted
if such Consolidated Net Income for such Payment (or, if such Consolidated Net Income
period is a deficit, less 100% of such for such period is a deficit, less 100% of
deficit), plus (ii) 100% of the aggregate net such deficit), plus [(ii)] (iii) 100% of the
cash proceeds received by the Company since aggregate net cash proceeds received by the
the date of the Indenture as a contribution Company since the date of the Indenture as a
to its common equity capital or from the contribution to its common equity capital or
issue or sale of Equity Interests of the from the issue or sale of Equity Interests of
Company (other than Disqualified Stock) or the Company (other than Disqualified Stock)
from the issue or sale of Disqualified Stock or from the issue or sale of Disqualified
or debt securities of the Company that have Stock or debt securities of the Company that
been converted into such Equity Interests have been converted into such Equity
(other than Equity Interests (or Disqualified Interests (other than Equity Interests (or
Stock or convertible debt securities) sold to Disqualified Stock or convertible debt
a Subsidiary of the Company), plus (iii) to securities) sold to a Subsidiary of the
the extent that any Restricted Investment Company), plus [(iii) to the extent that any
that was made after the date of the Indenture Restricted Investment that was made after the
is sold for cash or otherwise liquidated or date of the Indenture is sold for cash or
repaid for cash, the lesser of (A) the cash otherwise liquidated or repaid for cash, the
return of capital with respect to such lesser of (A) the cash return of capital with
Restricted Investment (less the cost of respect to such Restricted Investment (less
disposition, if any) and (B) the initial the cost of disposition, if any) and (B) the
amount of such Restricted Investment, plus initial amount of such Restricted Investment,
(iv) 50% of any dividends received by the plus] (iv) 50% of any dividends received by
Company or a Restricted Subsidiary that is a the Company or a Restricted Subsidiary that
Subsidiary Guarantor after the date of the is a Subsidiary Guarantor after the date of
Indenture from an Unrestricted Subsidiary of the Indenture from an Unrestricted Subsidiary
the Company, to the extent that such of the Company, to the extent that such
dividends were not otherwise included in dividends were not otherwise included in
Consolidated Net Income of the Company for Consolidated Net Income of the Company for
such period, plus (v) to the extent that any such period, plus (v) to the extent that any
Unrestricted Subsidiary is redesignated as a Unrestricted Subsidiary is redesignated as a
Restricted Subsidiary after the date of the Restricted Subsidiary after the date of the
Indenture, the lesser of (A) the fair market Indenture, the lesser of (A) the fair market
value of the Company's Investment in such value of the Company's Investment in such
Subsidiary as of the date of such Subsidiary as of the date of such
redesignation or (B) such fair market value redesignation or (B) such fair market value
as of the date on which such Subsidiary was as of the date on which such Subsidiary was
originally designated as an Unrestricted originally designated as an Unrestricted
Subsidiary. Subsidiary. For purposes of this Section
4.7(c), the net proceeds in property other
than cash received by the Company as
contemplated by clause (iii) above shall be
valued at the fair market value of such
property (as determined by the Board of
Directors, whose good faith determination
shall be conclusive) at the date of receipt
by the Company.
The foregoing provisions will not prohibit: The foregoing provisions will not prohibit:
(i) the payment of any dividend within 60 (i) the payment of any dividend within 60
days after the date days after the date
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EXISTING INDENTURE MODIFIED INDENTURE
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of declaration thereof, if at said date of of declaration thereof, if at said date of
declaration such payment would have complied declaration such payment would have complied
with the provisions of the Indenture; (ii) with the provisions of the Indenture; (ii)
the redemption, repurchase, retirement, the redemption, repurchase, retirement,
defeasance or other acquisition of any defeasance or other acquisition of any
subordinated Indebtedness or Equity Interests subordinated Indebtedness or Equity Interests
of the Company in exchange for, or out of the of the Company in exchange for, or out of the
net cash proceeds of the substantially net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary concurrent sale (other than to a Subsidiary
of the Company) of, other Equity Interests of of the Company) of, other Equity Interests of
the Company (other than any Disqualified the Company (other than any Disqualified
Stock); provided that the amount of any such Stock); provided that the amount of any such
net cash proceeds that are utilized for any net cash proceeds that are utilized for any
such redemption, repurchase, retirement, such redemption, repurchase, retirement,
defeasance or other acquisition shall be defeasance or other acquisition shall be
excluded from clause (ii) of the preceding excluded from clause [(ii)](iii) of the
paragraph; (iii) the defeasance, redemption, preceding paragraph; (iii) the defeasance,
repurchase or other acquisition of redemption, repurchase or other acquisition
subordinated Indebtedness with the net cash of subordinated Indebtedness with the net
proceeds from an incurrence of Permitted cash proceeds from an incurrence of Permitted
Refinancing Indebtedness; (iv) the payment of Refinancing Indebtedness; (iv) the payment of
any dividend by a Subsidiary of the Company any dividend by a Subsidiary of the Company
to the holders of such Subsidiary's common to the holders of such Subsidiary's common
Equity Interests on a pro rata basis; (v) the Equity Interests on a pro rata basis; (v) the
repurchase, redemption or other acquisition repurchase, redemption or other acquisition
or retirement for value of any Equity or retirement for value of any Equity
Interests of the Company or any Subsidiary of Interests of the Company or any Subsidiary of
the Company held by any member of the the Company held by any member of the
Company's (or any of its Subsidiaries') Company's (or any of its Subsidiaries')
management pursuant to any management equity management pursuant to any management equity
subscription agreement or stock option subscription agreement or stock option
agreement in effect as of the date of the agreement in effect as of the date of the
Indenture; provided that the aggregate price Indenture; provided that the aggregate price
paid for all such repurchased, redeemed, paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall acquired or retired Equity Interests shall
not exceed $250,000 in any twelve-month not exceed $250,000 in any twelve- month
period; (vi) the redemption or repayment on period; (vi) the redemption or repayment on
the date of the Indenture of (A) $1,350,000 the date of the Indenture of (A) $1,350,000
aggregate liquidation preference of aggregate liquidation preference of
outstanding Series B Preferred Stock and (B) outstanding Series B Preferred Stock and (B)
$6,000,000 aggregate principal amount of $6,000,000 aggregate principal amount of
outstanding subordinated promissory notes outstanding subordinated promissory notes
issued in connection with the acquisition of issued in connection with the acquisition of
the Nelson Ferman Theaters, in each case with the Nelson Ferman Theaters, in each case with
the net proceeds from the offering of the the net proceeds from the offering of the
Notes; (vii) the payment of dividends to Notes; (vii) the payment of dividends to
holders of any class or series of holders of any class or series of
Disqualified Stock of the Company issued or Disqualified Stock of the Company issued or
incurred after the date of the Indenture in incurred after the date of the Indenture in
accordance with the covenant described in accordance with the covenant described in
Section 4.9 hereof, provided that after Section 4.9 hereof, [provided that after
giving effect to any such dividend as a Fixed giving effect to any such dividend as a Fixed
Charge on a pro forma basis, the Company and Charge on a pro forma basis, the Company and
its Restricted Subsidiaries would have had a its Restricted Subsidiaries would have had a
Fixed Charge Coverage Ratio of at least 2.0 Fixed Charge Coverage Ratio of at least 2.0
to 1; and (viii) other Restricted Payments in to 1;] and (viii) other Restricted Payments in
an aggregate amount not to exceed $500,000; an aggregate amount not to exceed $500,000;
provided, however, that at the time of, and provided, however, that at the time of, and
after giving effect to, any Restricted after giving effect to, any Restricted
Payment permitted by clauses (ii), (iii), Payment permitted by clauses (ii), (iii),
(iv), (v), (vii) and (viii) of this (iv), (v), (vii) and (viii) of this
paragraph, no Default or Event of Default paragraph, no Default or Event of Default
shall have occurred and be continuing. shall have occurred and be continuing.
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EXISTING INDENTURE MODIFIED INDENTURE
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The Board of Directors may designate any The Board of Directors may designate any
Restricted Subsidiary acquired or created Restricted Subsidiary acquired or created
after the date of the Indenture (other than after the date of the Indenture (other than
any Restricted Subsidiary created to effect any Restricted Subsidiary created to effect
the Pending Acquisitions) to be an the Pending Acquisitions) to be an
Unrestricted Subsidiary if such designation Unrestricted Subsidiary if such designation
would not cause a Default. For purposes of would not cause a Default. For purposes of
making such determination, all outstanding making such determination, all outstanding
Investments by the Company and its Restricted Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid in Subsidiaries (except to the extent repaid in
cash) in the Subsidiary so designated will be cash) in the Subsidiary so designated will be
deemed to be Restricted Payments at the time deemed to be Restricted Payments at the time
of such designation and will reduce the of such designation and will reduce the
amount available for Restricted Payments amount available for Restricted Payments
under the first paragraph of this covenant. under the first paragraph of this covenant.
All such outstanding Investments will be All such outstanding Investments will be
deemed to constitute Investments in an amount deemed to constitute Investments in an amount
equal to the fair market value of such equal to the fair market value of such
Investments at the time of such designation. Investments at the time of such designation.
Such designation will only be permitted if Such designation will only be permitted if
such Restricted Payment would be permitted at such Restricted Payment would be permitted at
such time and if such Restricted Subsidiary such time and if such Restricted Subsidiary
otherwise meets the definition of an otherwise meets the definition of an
Unrestricted Subsidiary. Upon such Unrestricted Subsidiary. Upon such
designation, the Subsidiary Guarantee, if designation, the Subsidiary Guarantee, if
any, of such designated Unrestricted any, of such designated Unrestricted
Subsidiary shall be automatically released. Subsidiary shall be automatically released.
The amount of all Restricted Payments (other The amount of all Restricted Payments (other
than cash) shall be the fair market value on than cash) shall be the fair market value on
the date of the Restricted Payment of the the date of the Restricted Payment of the
asset(s) or securities proposed to be asset(s) or securities proposed to be
transferred or issued by the Company or such transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, Restricted Subsidiary, as the case may be,
pursuant to the Restricted Payment. The fair pursuant to the Restricted Payment. The fair
market value of any non-cash Restricted market value of any non-cash Restricted
Payment shall be determined by the Board of Payment shall be determined by the Board of
Directors whose resolution with respect Directors whose [resolution with respect
thereto shall be delivered to the Trustee, thereto shall be delivered to the Trustee,
such determination to be based upon an such determination to be based upon an
opinion or appraisal issued by an accounting, opinion or appraisal issued by an accounting,
appraisal or investment banking firm of appraisal or investment banking firm of
national standing if such fair market value national standing if such fair market value
exceeds $1.0 million. Not later than the date exceeds $1.0 million] good faith determination
of making any Restricted Payment, the Company shall be conclusive. Not later than the date
shall deliver to the Trustee an Officers' of making any Restricted Payment, the Company
Certificate stating that such Restricted shall deliver to the Trustee an Officers'
Payment is permitted and setting forth the Certificate stating that such Restricted
basis upon which the calculations required by Payment is permitted and setting forth the
this Section 4.7 were computed, together with basis upon which the calculations required by
a copy of any fairness opinion or appraisal this Section 4.7 were computed, [together with
required by the terms of this Indenture. a copy of any fairness opinion or appraisal
required by the terms of this Indenture.]
SECTION 4.9 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK
The Company shall not, and shall not permit The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, issue, directly or indirectly, create, incur, issue,
assume, Guarantee or otherwise become assume, Guarantee or otherwise become
directly or indirectly liable, contingently directly or indirectly liable, contingently
or otherwise, with respect to (collectively, or otherwise, with respect to (collectively,
"incur") any "incur") any
112
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EXISTING INDENTURE MODIFIED INDENTURE
- --------------------------------------------- ---------------------------------------------
Indebtedness (including Acquired Debt) and Indebtedness (including Acquired Debt) and
the Company shall not issue any Disqualified the Company shall not issue any Disqualified
Stock and shall not permit any of its Stock and shall not permit any of its
Restricted Subsidiaries to issue any shares Restricted Subsidiaries to issue any shares
of preferred stock; provided, however, that of preferred stock; provided, however, that
if no Default or Event of Default shall have if no Default or Event of Default shall have
occurred and be continuing at the time of or occurred and be continuing at the time of or
as a consequence of such incurrence or as a consequence of such incurrence or
issuance, (i) the Company may incur issuance, (i) the Company may incur
Indebtedness (including Acquired Debt) or Indebtedness (including Acquired Debt) or
issue shares of Disqualified Stock and (ii) issue shares of Disqualified Stock and (ii)
any Subsidiary Guarantor may incur any Subsidiary Guarantor may incur
Indebtedness (including Acquired Debt), in Indebtedness (including Acquired Debt), in
each case if the Fixed Charge Coverage Ratio each case if [the Fixed Charge Coverage Ratio
for the Company's most recently ended four for the Company's most recently ended four
full fiscal quarters for which internal full fiscal quarters for which internal
financial statements are available financial statements are available
immediately preceding the date on which such immediately preceding the date on which such
additional Indebtedness is incurred or such additional Indebtedness is incurred or such
Disqualified Stock is issued would have been Disqualified Stock is issued would have been
at least 2.0 to 1, determined on a pro forma at least 2.0 to 1, determined on a pro forma
basis (including a pro forma application of basis (including proceeds therefrom), as if
the net proceeds therefrom), as if the the additional Indebtedness had been
additional Indebtedness had been incurred, or incurred, or the Disqualified Stock had been
the Disqualified Stock had been issued, as issued, as the case may be, at the beginning
the case may be, at the beginning of such of such four-quarter period,] after giving
four-quarter period. effect thereto, the Cash Flow Ratio is less
than or equal to 9.0 to 1.0.
The provisions of the first paragraph of this The provisions of the first paragraph of this
Section 4.9 shall not apply to the incurrence Section 4.9 shall not apply to the incurrence
of any of the following items of Indebtedness of any of the following items of Indebtedness
(collectively, "Permitted Debt"): (collectively, "Permitted Debt"):
(i) the incurrence by the Company of (i) the incurrence by the Company of
Indebtedness and letters of credit (with Indebtedness and letters of credit (with
letters of credit being deemed to have a letters of credit being deemed to have a
principal amount equal to the maximum principal amount equal to the maximum
potential liability of the Company and its potential liability of the Company and its
Restricted Subsidiaries thereunder) under Restricted Subsidiaries thereunder) under
Credit Facilities; provided that the Credit Facilities; provided that the
aggregate principal amount of all aggregate principal amount of all
Indebtedness outstanding under all Credit Indebtedness outstanding under all Credit
Facilities under this clause (i) after giving Facilities under this clause (i) after giving
effect to such incurrence does not exceed an effect to such incurrence does not exceed an
amount equal to $15 million, less the amount equal to[$15] $100 million, less the
aggregate amount of all Net Proceeds of Asset aggregate amount of all Net Proceeds of Asset
Sales applied to repay Indebtedness under a Sales applied to repay Indebtedness under a
Credit Facility pursuant to Section 4.10 Credit Facility pursuant to Section 4.10
hereof; hereof;
(ii) the incurrence by the Company and its (ii) the incurrence by the Company and its
Restricted Subsidiaries of the Existing Restricted Subsidiaries of the Existing
Indebtedness; Indebtedness;
(iii) the incurrence by the Company of (iii) the incurrence by the Company of
Indebtedness represented by the Notes and by Indebtedness represented by the Notes and by
the Subsidiary Guarantors of Indebtedness the Subsidiary Guarantors of Indebtedness
represented by the Subsidiary Guarantees; represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company or any (iv) the incurrence by the Company or any of
of the Subsidiary Guarantors of Indebtedness the Subsidiary Guarantors of Indebtedness
represented by Capital Lease Obligations, represented by Capital Lease Obligations,
mortgage financings or purchase money mortgage financings or purchase money
obligations, in each case incurred for obligations, in each case incurred for
113
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EXISTING INDENTURE MODIFIED INDENTURE
- --------------------------------------------- ---------------------------------------------
the purpose of financing all or any part of the purpose of financing all or any part of
the purchase price or cost of construction or the purchase price or cost of construction or
improvement of property, plant or equipment improvement of property, plant or equipment
used in the business of the Company or such used in the business of the Company or such
Subsidiary Guarantor, in an aggregate Subsidiary Guarantor, in an aggregate
principal amount not to exceed $5.0 million principal amount not to exceed $5.0 million
at any time outstanding; at any time outstanding;
(v) the incurrence by the Company or any of (v) the incurrence by the Company or any of
its Restricted Subsidiaries of Permitted its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to refund, the net proceeds of which are used to refund,
refinance or replace Indebtedness (other than refinance or replace Indebtedness (other than
intercompany Indebtedness) that was permitted intercompany Indebtedness) that was permitted
by this Indenture to be incurred under the by this Indenture to be incurred under the
first paragraph hereof or clauses (ii) and first paragraph hereof or clauses (ii) and
(iv) of this paragraph; (iv) of this paragraph;
(vi) the incurrence by the Company or any (vi) the incurrence by the Company or any
Subsidiary Guarantor of intercompany Subsidiary Guarantor of intercompany
Indebtedness between or among the Company and Indebtedness between or among the Company and
any Subsidiary Guarantor; provided, however, any Subsidiary Guarantor; provided, however,
that (i) if the Company is the obligor on that (i) if the Company is the obligor on
such Indebtedness, such Indebtedness is such Indebtedness, such Indebtedness is
expressly subordinated to the prior payment expressly subordinated to the prior payment
in full in cash of all Obligations with in full in cash of all Obligations with
respect to the Notes and (ii) (A) any respect to the Notes and (ii) (A) any
subsequent issuance or transfer of Equity subsequent issuance or transfer of Equity
Interests that results in any such Interests that results in any such
Indebtedness being held by a Person other Indebtedness being held by a Person other
than the Company or a Subsidiary Guarantor than the Company or a Subsidiary Guarantor
thereof and (B) any sale or other transfer of thereof and (B) any sale or other transfer of
any such Indebtedness to a Person that is not any such Indebtedness to a Person that is not
either the Company or a Subsidiary Guarantor either the Company or a Subsidiary Guarantor
thereof shall be deemed, in each case, to thereof shall be deemed, in each case, to
constitute an incurrence of such Indebtedness constitute an incurrence of such Indebtedness
by the Company or such Subsidiary Guarantor, by the Company or such Subsidiary Guarantor,
as the case may be, that was not permitted by as the case may be, that was not permitted by
this clause (vi); this clause (vi);
(vii) the incurrence by the Company or any (vii) the incurrence by the Company or any of
of its Restricted Subsidiaries of Hedging its Restricted Subsidiaries of Hedging
Obligations that are incurred for the purpose Obligations that are incurred for the purpose
of fixing or hedging interest rate risk with of fixing or hedging interest rate risk with
respect to any floating rate Indebtedness respect to any floating rate Indebtedness
that is permitted by the terms of this that is permitted by the terms of this
Indenture to be outstanding; Indenture to be outstanding;
(viii) the Guarantee by the Company or any (viii) the Guarantee by the Company or any of
of the Subsidiary Guarantors of Indebtedness the Subsidiary Guarantors of Indebtedness of
of the Company or a Restricted Subsidiary of the Company or a Restricted Subsidiary of the
the Company that was permitted to be incurred Company that was permitted to be incurred by
by another provision of this Section 4.9; another provision of this Section 4.9;
(ix) the incurrence by the Company or any (ix) the incurrence by the Company or any
Subsidiary Guarantor of additional Subsidiary Guarantor of additional
Indebtedness in an aggregate principal amount Indebtedness in an aggregate principal amount
(or accreted value, as applicable) at any (or accreted value, as applicable) at any
time outstanding, including all Permitted time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness refinance or replace any Indebtedness
incurred pursuant to this clause (ix), not to incurred pursuant to this clause (ix), not to
exceed $10.0 million; and exceed $10.0 million; and
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(x) the incurrence by the Company's (x) the incurrence by the Company's
Unrestricted Subsidiaries of Non-Recourse Unrestricted Subsidiaries of Non-Recourse
Debt, provided, however, that if any such Debt, provided, however, that if any such
Indebtedness ceases to be Non-Recourse Debt Indebtedness ceases to be Non-Recourse Debt
of an Unrestricted Subsidiary, such event of an Unrestricted Subsidiary, such event
shall be deemed to constitute an incurrence shall be deemed to constitute an incurrence
of Indebtedness by a Restricted Subsidiary of of Indebtedness by a Restricted Subsidiary of
the Company that was not permitted by this the Company that was not permitted by this
clause (x). clause (x).
For purposes of determining compliance with For purposes of determining compliance with
this Section 4.9, in the event that an item this Section 4.9, in the event that an item
of Indebtedness meets the criteria of more of Indebtedness meets the criteria of more
than one of the categories of Permitted Debt than one of the categories of Permitted Debt
described in clauses (i) through (x) above or described in clauses (i) through (x) above or
is entitled to be incurred pursuant to the is entitled to be incurred pursuant to the
first paragraph of this covenant, the Company first paragraph of this covenant, the Company
shall, in its sole discretion, classify such shall, in its sole discretion, classify such
item of Indebtedness in any manner that item of Indebtedness in any manner that
complies with this covenant. Accrual of complies with this covenant. Accrual of
interest or accretion or amortization of interest or accretion or amortization of
original issue discount will not be deemed to original issue discount will not be deemed to
be an incurrence of Indebtedness for purposes be an incurrence of Indebtedness for purposes
of this Section 4.9; provided, in each such of this Section 4.9[; provided, in each such
case, that the amount thereof is included in case, that the amount thereof is included in
Fixed Charges of the Company as accrued. Fixed Charges of the Company as accrued].
The Company shall not incur any Indebtedness The Company shall not incur any Indebtedness
that is contractually subordinated in right that is contractually subordinated in right
of payment to any other Indebtedness of the of payment to any other Indebtedness of the
Company unless such Indebtedness is also Company unless such Indebtedness is also
contractually subordinated in right of contractually subordinated in right of
payment to the Notes on substantially payment to the Notes on substantially
identical terms; provided, however, that no identical terms; provided, however, that no
Indebtedness of the Company shall be deemed Indebtedness of the Company shall be deemed
to be contractually subordinated in right of to be contractually subordinated in right of
payment to any other Indebtedness of the payment to any other Indebtedness of the
Company solely by virtue of being unsecured. Company solely by virtue of being unsecured.
SECTION 4.11 TRANSACTIONS WITH AFFILIATES
The Company shall not, and shall not permit The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, make any of its Restricted Subsidiaries to, make
any payment to, or sell, lease, transfer or any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or otherwise dispose of any of its properties or
assets to, or purchase any property or assets assets to, or purchase any property or assets
from, or enter into or make or amend any from, or enter into or make or amend any
transaction, contract, agreement, transaction, contract, agreement,
understanding, loan, advance or Guarantee understanding, loan, advance or Guarantee
with, or for the benefit of, any Affiliate with, or for the benefit of, any Affiliate
(each of the foregoing, an "Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless: (i) such Affiliate Transaction"), unless: (i) such Affiliate
Transaction is on terms that are no less Transaction is on terms that are no less
favorable to the Company or the relevant favorable to the Company or the relevant
Restricted Subsidiary than those that would Restricted Subsidiary than those that would
have been obtained in a comparable have been obtained in a comparable
transaction by the Company or such Restricted transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) Subsidiary with an unrelated Person and (ii)
the Company delivers to the Trustee (a) with the Company delivers to the Trustee [(a)] with
respect to any Affiliate Transaction or respect to any Affiliate Transaction or
series of related Affiliate Transactions series of related Affiliate Transactions
involving aggregate consideration in excess involving aggregate consideration in excess
of $1.0 million, a of [$1.0]$5.0 million,
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EXISTING INDENTURE MODIFIED INDENTURE
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resolution of the Board of Directors set [a resolution of the Board of Directors set
forth in an Officers' Certificate certifying forth in] an Officers' Certificate certifying
that such Affiliate Transaction complies with that such Affiliate Transaction complies with
clause (i) above and that such Affiliate clause (i) above [and that such Affiliate
Transaction has been approved by a majority Transaction has been approved by a majority
of the disinterested members of the Board of of the disinterested members of the Board of
Directors and (b) with respect to any Directors and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transaction or series of related
Affiliate Transactions involving aggregate Affiliate Transactions involving aggregate
consideration in excess of $5.0 million, an consideration in excess of $5.0 million, an
opinion as to the fairness to the Holders of opinion as to the fairness to the Holders of
such Affiliate Transaction from a financial such Affiliate Transaction from a financial
point of view issued by an independent point of view issued by an independent
accounting, appraisal or investment banking accounting, appraisal or investment banking
firm of national standing. Notwithstanding firm of national standing.] Notwithstanding
the foregoing, the following items shall not the foregoing, the following items shall not
be deemed to be Affiliate Transactions: (i) be deemed to be Affiliate Transactions: (i)
any employment agreement approved by the any employment agreement approved by the
Board of Directors and entered into by the Board of Directors and entered into by the
Company or any of its Restricted Subsidiaries Company or any of its Restricted Subsidiaries
in the ordinary course of business and in the ordinary course of business and
consistent with the past practice of the consistent with the past practice of the
Company or such Restricted Subsidiary, (ii) Company or such Restricted Subsidiaries, (ii)
transactions between or among the Company transactions between or among the Company
and/or its Restricted Subsidiaries, (iii) and/or its Restricted Subsidiaries, (iii)
payment of reasonable directors fees to payment of reasonable directors fees to
Persons who are not otherwise Affiliates of Persons who are not otherwise Affiliates of
the Company and (iv) Restricted Payments that the Company and (iv) Restricted Payments that
are permitted by the provisions of Section are permitted by the provisions of Section
4.7 hereof. 4.7 hereof.
SECTION 4.13 SALE AND LEASEBACK TRANSACTIONS
The Company shall not, and shall not permit The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, enter any of its Restricted Subsidiaries to, enter
into any sale and leaseback transaction; into any sale and leaseback transaction;
provided that the Company may enter into a provided that the Company may enter into a
sale and leaseback transaction if (i) the sale and leaseback transaction if (i) the
Company could have (a) incurred Indebtedness Company could have (a) incurred Indebtedness
in an amount equal to the Attributable Debt in an amount equal to the Attributable Debt
relating to such sale and leaseback relating to such sale and leaseback
transaction pursuant to the Fixed Charge transaction pursuant to the [Fixed Charge
Coverage Ratio test set forth in the first Coverage] Cash Flow Ratio test set forth in
paragraph of 4.9 hereto and (b) incurred a the first paragraph of 4.9 hereto and (b)
Lien to secure such Indebtedness pursuant to incurred a Lien to secure such Indebtedness
the covenant described above under Section pursuant to the covenant described above
4.12 hereto, (ii) the gross cash proceeds of under Section 4.12 hereto, (ii) the gross
such sale and leaseback transaction are at cash proceeds of such sale and leaseback
least equal to the fair market value (as transaction are at least equal to the fair
determined in good faith by the Board of market value (as determined in good faith by
Directors and set forth in an Officers' the Board of Directors and set forth in an
Certificate delivered to the Trustee) of the Officers' Certificate delivered to the
property that is the subject of such sale and Trustee) of the property that is the subject
leaseback transaction and (iii) the transfer of such sale and leaseback transaction and
of assets in such sale and leaseback (iii) the transfer of assets in such sale and
transaction is permitted by, and the Company leaseback transaction is permitted by, and
applies the proceeds of such transaction in the Company applies the proceeds of such
accordance with the provisions of Section transaction in accordance with the provisions
4.10 hereto. of Section 4.10 hereto.
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EXISTING INDENTURE MODIFIED INDENTURE
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SECTION 4.15 BUSINESS ACTIVITIES
The Company shall not, and shall not permit [deleted]
any Restricted Subsidiary to, engage in any
business other than Permitted Businesses,
except to such extent as would not be
material to the Company and its Restricted
Subsidiaries taken as a whole.
ARTICLE 5.
SUCCESSORS
SECTION 5.1 MERGER, CONSOLIDATION OR SALE OF ASSETS
(a) The Company may not consolidate or merge (a) The Company may not consolidate or merge
with or into (whether or not the Company is with or into (whether or not the Company is
the surviving corporation), or sell, assign, the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose transfer, lease, convey or otherwise dispose
of all or substantially all of its properties of all or substantially all of its properties
or assets in one or more related or assets in one or more related
transactions, to another corporation, Person transactions, to another corporation, Person
or entity unless (i) the Company is the or entity unless (i) the Company is the
surviving corporation or the entity or the surviving corporation or the entity or the
Person formed by or surviving any such Person formed by or surviving any such
consolidation or merger (if other than the consolidation or merger (if other than the
Company) or to which such sale, assignment, Company) or to which such sale, assignment,
transfer, lease, conveyance or other transfer, lease, conveyance or other
disposition shall have been made is a disposition shall have been made is a
corporation organized or existing under the corporation organized or existing under the
laws of the United States, any state thereof laws of the United States, any state thereof
or the District of Columbia; (ii) the entity or the District of Columbia; (ii) the entity
or Person formed by or surviving any such or Person formed by or surviving any such
consolidation or merger (if other than the consolidation or merger (if other than the
Company) or the entity or Person to which Company) or the entity or Person to which
such sale, assignment, transfer, lease, such sale, assignment, transfer, lease,
conveyance or other disposition shall have conveyance or other disposition shall have
been made assumes all the obligations of the been made assumes all the obligations of the
Company under the Registration Rights Company under the Registration Rights
Agreement, the Notes and this Indenture Agreement, the Notes and this Indenture
pursuant to a supplemental indenture in a pursuant to a supplemental indenture in a
form reasonably satisfactory to the Trustee; form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no and (iii) immediately after such transaction
Default or Event of Default exists; and (iv) no Default or Event of Default exists; [and
except in the case of a merger of the Company (iv) except in the case of a merger of the
with or into a Wholly Owned Subsidiary of the Company with or into a Wholly-Owned
Company, the Company or the entity or Person Subsidiary of the Company, the Company or the
formed by or surviving any such consolidation entity or Person formed by or surviving any
or merger (if other than the Company), or to such consolidation or merger (if other than
which such sale, assignment, transfer, lease, the Company), or to which such sale,
conveyance or other disposition shall have assignment, transfer, lease, conveyance or
been made (A) will have Consolidated Net other disposition shall have been made (A)
Worth immediately after the transaction equal will have Consolidated Net Worth immediately
to or greater than the Consolidated Net Worth after the transaction equal to or greater
of the Company immediately preceding the than the Consolidated Net Worth of the
transaction and (B) will, at the time of such Company immediately preceding the transaction
transaction and after giving pro forma effect and (B) will, at the time of such transaction
thereto as if such transaction had occurred and after giving pro forma effect thereto as
at the beginning of the applicable if such transaction had occurred at the
four-quarter period, be permitted to incur at beginning of the applicable four quarter
least $1.00 of additional Indebtedness period be permitted to incur at least $1.00
pursuant to the Fixed Charge Coverage Ratio of additional Indebtedness pursuant to the
test set forth in the first Fixed Charge Coverage]
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EXISTING INDENTURE MODIFIED INDENTURE
- --------------------------------------------- ---------------------------------------------
paragraph of the covenant described in [Ratio test set forth in the first paragraph
Section 4.9 hereof. of the covenant described in Section 4.9
hereof.]
(b) No Subsidiary Guarantor shall consolidate (b) No Subsidiary Guarantor shall consolidate
with or merge with or into (whether or not with or merge with or into (whether or not
such Subsidiary Guarantor is the surviving such Subsidiary Guarantor is the surviving
Person), another corporation, Person or Person), another corporation, Person or
entity whether or not affiliated with such entity whether or not affiliated with such
Subsidiary Guarantor unless (i) subject to Subsidiary Guarantor unless (i) subject to
the provisions of Section 10.6 hereof, the the provisions of Section 10.6 hereof, the
Person formed by or surviving any such Person formed by or surviving any such
consolidation or merger (if other than such consolidation or merger (if other than such
Subsidiary Guarantor) (A) is a corporation Subsidiary Guarantor) (A) is a corporation
organized or existing under the laws of the organized or existing under the laws of the
United States, any state thereof or the United States, any state thereof or the
District of Columbia and (B) assumes all the District of Columbia and (B) assumes all the
obligations of such Subsidiary Guarantor obligations of such Subsidiary Guarantor
pursuant to a supplemental indenture in form pursuant to a supplemental indenture in form
and substance reasonably satisfactory to the and substance reasonably satisfactory to the
Trustee, under this Indenture and the Trustee, under this Indenture and the
Registration Rights Agreement; (ii) Registration Rights Agreement; and (ii)
immediately after giving effect to such immediately after giving effect to such
transaction, no Default or Event of Default transaction, no Default or Event of Default
exists; and (iii) the Company would be exists, [and (iii) the Company would be
permitted by virtue of the Company's pro permitted by virtue of the Company's pro
forma Fixed Charge Coverage Ratio, forma Fixed Charge Coverage Ratio,
immediately after giving effect to such immediately after giving effect to such
transaction, to incur at least $1.00 of transaction, to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in Charge Coverage Ratio test set forth in
Section 4.9 hereof. Notwithstanding the Section 4.9 hereof. Notwithstanding the
foregoing clause (iii), each Subsidiary foregoing clause (iii), each Subsidiary
Guarantor may consolidate with or merge into Guarantor may consolidate with or merge into
the Company or another Subsidiary Guarantor. the Company or another Subsidiary Guarantor.]
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DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 10,000,000 shares
of Common Stock and 2,500,000 shares of Preferred Stock. The following is a
summary description of the Common Stock, Preferred Stock and Class A Warrants.
This summary description does not purport to be complete and is qualified in its
entirety by reference to the Certificate and the Warrant Agreement dated as of
May 23, 1997 by and between the Company and MidMark.
COMMON STOCK
The holders of shares of Common Stock are entitled to one vote for each
share held on all matters submitted to a vote of the holders of the Common Stock
and the Class A Preferred Stock and do not have cumulative voting rights.
Holders of shares of Common Stock are entitled to receive dividends, if any, as
declared by the Board of Directors out of funds legally available therefor. Upon
liquidation, dissolution or winding up of the Company, holders of shares of
Common Stock are entitled to share ratably in the net assets of the Company
available after the payment of all debts and other liabilities of the Company,
subject to the prior rights of outstanding shares of Preferred Stock. Holders of
shares of Common Stock have no preemptive, subscription, redemption or
conversion rights. The rights, preferences and privileges of holders of shares
of Common Stock are subject to, and may be adversely affected by, the rights of
the holders of shares of the Class A Preferred Stock, Class B Preferred Stock
and Class C Preferred Stock or any other series of Preferred Stock the Company
may designate and issue in the future.
PREFERRED STOCK
The Board of Directors has the authority, without further action by the
stockholders, to issue shares of Preferred Stock in one or more series and to
fix the number of shares, designations, voting powers, preferences, optional and
other special rights and the restrictions or qualifications thereof, subject to
the rights of the holders of the Class A Preferred Stock discussed below. The
rights, preferences, privileges and powers of each series of Preferred Stock may
differ with respect to dividend rates, amounts payable on liquidation, voting
rights, conversion rights, redemption provisions, sinking fund provisions and
other matters. The following is a description of the two Classes of Preferred
Stock that are currently outstanding.
Class A Preferred Stock
In May 1996, the Company authorized 1,303 shares and issued 779 shares of
Class A Preferred Stock. Each share of Class A Preferred Stock is convertible at
any time at the option of the holders into 600 shares of the Common Stock. Upon
the occurrence of certain events, the shares of Class A Preferred Stock will
automatically convert into shares of Common Stock of the Company. The holders of
the Class A Preferred Stock are entitled to receive preferential dividends, when
and as declared by the Board of Directors, in a per share amount equal to the
product of the dividend payable per share of Common Stock and the number of
shares of Common Stock into which a share of Class A Preferred Stock is then
convertible. So long as any shares of Class A Preferred Stock are outstanding,
unless all dividends on the Class A Preferred Stock have been paid, no dividend
or other distribution may be paid or made on the Common Stock or any other
capital stock of the Company ranking junior as to dividends to the Class A
Preferred Stock and no such capital stock may be acquired by the Company, other
than by means of a distribution or exchange of capital stock of the Company
ranking junior to the Class A Preferred Stock. In the event of any sale of all
or substantially all of the assets of the Company or any liquidation,
dissolution or winding up of the Company, the holders of the Class A Preferred
Stock will be entitled to receive an amount per share equal to $2,558.85,
subject to certain adjustments, plus all declared but unpaid dividends per share
on the Class A Preferred Stock, prior to any distribution to holders of the
Common Stock or any other capital stock of the Company ranking junior upon
liquidation or dissolution to the Class A Preferred Stock.
Generally, the holders of the Class A Preferred Stock vote with the holders
of the Common Stock on all matters submitted to a vote of the stockholders of
the Company other than the election of members of the Board of Directors for so
long as those holders vote separately for Preferred Directors. The holders of
the Class A Preferred Stock will vote separately as a class for two Preferred
Directors so long as the outstanding shares of
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Class A Preferred Stock represent more than 15% of the combined voting power of
the outstanding capital stock of the Company or for one Preferred Director so
long as the outstanding shares of Class A Preferred Stock represent at least 5%
and no more than 15% of the combined voting power of the outstanding capital
stock of the Company.
Class B Preferred Stock
In December 1997, the Company authorized 20,000 shares and issued 600
shares of its Class B Preferred Stock to Mr. Robert Davidoff and CMCO, Inc. in
exchange for 8% subordinated promissory notes in the aggregate principal amount
of $600,000. The Company repurchased such shares in June 1998 with a portion of
the proceeds of the Notes Offering. In March 1998, the Company issued 750 shares
of Class B Preferred Stock as a portion of the purchase price in connection with
the acquisition of the CJM Theaters. The Company repurchased the remaining
shares of Class B Preferred Stock in September 1998 with a portion of the
proceeds of the Notes Offering. As of September 30, 1998, there were no shares
of Class B Preferred Stock outstanding.
Class C Preferred Stock
The Company has authorized and issued 3,000 shares of Class C Preferred
Stock. Each share of Class C Preferred Stock is convertible at any time at the
option of the holder after the earlier of (i) July 21, 1998 and (ii) the date on
which a registration statement covering the shares of Common Stock into which
the Class C Preferred Stock is convertible has been declared effective, into a
number of shares of the Common Stock based on a conversion price equal to the
lesser (i) $21.95 per share or (ii) 87.5% of the average of the fourth, fifth
and sixth lowest closing prices of the Common Stock during the 20-day period
immediately prior to such conversion, subject to certain limitations and
adjustments. On April 23, 2000, the shares of Class C Preferred Stock will
automatically convert into shares of Common Stock on the basis of the conversion
price then in effect, subject to certain conditions. In the event the Company
fails to deliver such shares of Common Stock upon conversion of the Class C
Preferred Stock, the Company must pay interest to the holder in the amount of up
to 24% per annum on the liquidation preference of the shares so converted for
the number of days until such shares of Common Stock are delivered to the
holder. The holders of the Class C Preferred Stock are entitled to receive
cumulative preferential dividends, when and as declared by the Board of
Directors, in a per share amount equal to, on an annualized basis, 5% of the
stated value of the Class C Preferred Stock ($1,000 per share), payable in cash
or in shares of Common Stock, at the Company's option. In the event the Company
fails to deliver shares of Common Stock paid as dividends, the Company must pay
interest to the holder in the amount of up to 24% per annum on dividend amount
for the number of days until such shares of Common Stock are delivered to the
holder. In the event of any sale of all or substantially all of the assets of
the Company or any liquidation, dissolution or winding up of the Company, the
holder of the Class C Preferred Stock will be entitled to receive a liquidation
preference of $1,000 per share (subject to adjustment in the event of any stock
split, combination or reclassification of the Class C Preferred Stock or other
similar event) plus any accrued and unpaid dividends thereon. Upon the
occurrence of certain events, as described below, the Class C Preferred Stock
will be mandatorily redeemable at the option of the holder of the Class C
Preferred Stock, at a redemption price equal to the greater of (i) 125% of the
liquidation preference of the shares being redeemed and (ii) an amount
determined by dividing the liquidation preference of the shares being redeemed
by the conversion price in effect on the date of such redemption multiplied by
the closing trading price for the Common Stock on the five trading days
immediately preceding the date of such redemption. Events giving rise to
mandatory redemption include, among other things, (i) the Company's failure to
issue and deliver the shares of Common Stock upon conversion due to voluntary
action by the Company or a failure by the Company to take action, (ii) the
material breach by the Company, due to voluntary action taken by the Company or
a failure by the Company to take action, of any covenant or other material term
or condition of any agreement entered into in connection with such issuance,
(iii) materially inaccurate or misleading representations or warranties by the
Company in connection with the issuance and sale of the Class C Preferred Stock,
due to voluntary action taken by the Company or a failure by the Company to take
action, (iv) the required registration statement not being declared effective
within the required period of time or if the registration statement lapses for
any reason or is unavailable to the holder for the sale of the conversion
shares, provided that the cause of such lapse or unavailability is not due to
factors solely within the control of the holder, and provided further that the
failure or lapse or unavailability is due to a voluntary action by the Company
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or a failure by the Company to take action, (v) the Common Stock not being
listed on the AMEX, New York Stock Exchange or the National Association of
Securities Dealers, Inc. National Market System due to voluntary action by the
Company or a failure by the Company to take action, or (vi) a change in control
of the Company, which results in prior stockholders of the Company failing to
own at least 50% of the surviving entity, other than a transaction which is not
approved by the Board of Directors of the Company.
CLASS A WARRANT
The Class A Warrant is initially exercisable for 282,600 shares of Common
Stock, at an initial exercise price of $.01 per share, subject to adjustment in
certain events. The Class A Warrant is not exercisable until June 1, 2001
unless, prior to that date, the Company sells all or substantially all of its
assets, liquidates, dissolves or winds up or merges or consolidates with another
corporation in a transaction immediately after which persons who held voting
securities of the Company having more than 50% of the combined voting power of
the outstanding voting securities of the Company do not hold voting securities
of the surviving corporation having more than 50% of the combined voting power
of the outstanding voting securities of the surviving corporation or a majority
of the outstanding shares of Common Stock are acquired by a single person or
group of affiliated persons (other than the Company's current stockholders). The
number of shares of Common Stock for which the Class A Warrant is exercisable
will be subject to reduction if any of the events described in the preceding
sentence occur or if there is an underwritten public offering of shares of
Common Stock pursuant to an effective registration statement under the
Securities Act or if the Common Stock is listed on a national securities
exchange or registered as a class under the Exchange Act, and the Fair Market
Value (as defined below) of the Common Stock is greater than the Floor Price
(currently equal to $11.37 per share). Fair Market Value for purposes of any of
such transactions is equal to the consideration paid or payable or deemed paid
to the holders of the Common Stock assuming the exercise of all warrants to
purchase shares of Common Stock and the conversion of all securities convertible
into shares of Common Stock (other than the Class A Warrant). Fair Market Value
for purposes of a public offering or any such listing or registration of the
Common Stock is based on the average closing sale price or last bid price for
the Common Stock for any 120-day trading period following the closing of such
offering or listing or registration, so long as the closing sale price or last
bid price on each day in that period exceeds the Floor Price; provided, that the
last day of any such period may not occur during any "lock up" period agreed to
by the holder of the Class A Warrant with respect to any public offering. The
reduction in the number of shares of Common Stock purchasable upon exercise of
the Class A Warrants is based upon a formula and, if the Fair Market Value is
high enough (currently $17.25), could result in the Class A Warrant not being
exercisable for any shares. The Floor Price and the number of shares of Common
Stock that the Class A Warrant are exercisable for are subject to adjustment for
subdivisions or combinations of the Common Stock, the issuance of shares of
Common Stock as a dividend and certain reorganizations and reclassifications,
mergers and consolidations.
Contemporaneously with the execution of the Merger Agreement, MidMark, the
holder of the Class A Warrant, entered into an agreement with Clearview and
Cablevision, pursuant to which MidMark agreed that, immediately prior to the
effective time of the Merger, MidMark will surrender its Class A Warrant to
Clearview for cancellation in exchange for payment by Clearview of $1.00.
CERTAIN PROVISIONS OF THE CERTIFICATE AND THE BY-LAWS
The Certificate and the By-laws contain a number of provisions relating to
corporate governance and the rights of stockholders. Certain of these provisions
may be deemed to have a potential "anti-takeover" effect insofar as such
provisions may delay, defer or prevent a change of control of the Company,
including, but not limited, to the following provisions:
The Certificate provides that the holders of the Common Stock may only take
action at a duly called meeting of the stockholders of the Company and may not
act by written consent.
The By-laws contain certain notification requirements relating to
nominations to the Board of Directors and to the raising of business matters at
stockholder meetings. Such requirements provide that a notice of proposed
stockholder business must be timely given in writing to the Secretary of the
Company prior to the appropriate meeting. To be timely, notice relating to an
annual meeting must be given not less than 60, nor more than 90,
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days in advance of such meeting; provided, that if the date of the annual
meeting is changed by more than 30 days from the anniversary date of the prior
annual meeting, written notice must be given no later than the fifth day after
the first public disclosure of the date of the meeting. The By-laws provide that
special meetings of stockholders may be called only by certain officers of the
Company or the Board of Directors.
The Certificate contains certain provisions permitted under the Delaware
General Corporation Law (the "DCL") regarding the liability of directors. These
provisions eliminate the personal liability of a director to the Company and its
stockholders for monetary damages for breach of fiduciary duty as a director
other than for any breach of that director's duty of loyalty, for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, for any transaction from which the director derived an
improper personal benefit or for an unlawful payment of dividends or redemption
of stock. Those provisions do not affect the availability of equitable remedies
such as an action to enjoin or rescind a transaction involving a breach of
fiduciary duty. The By-laws provide that the Company will indemnify its
directors and officers, and may indemnify any authorized representative of the
Company, to the fullest extent permitted by the DCL. The Company believes that
such provisions will assist the Company in attracting and retaining qualified
individuals to serve as directors and officers.
The By-laws provide that the number of directors constituting the entire
Board of Directors will be established by the Board of Directors except as
otherwise provided in the Certificate, but will consist of not less than three
Common Directors. Common Directors may be removed by the holders of the Common
Stock only for cause and new Common Directors may be elected simultaneously with
such removal. The By-laws further provide that any amendment of the By-laws to
permit the removal of Common Directors without cause by the holders of the
Common Stock will not apply to any incumbent director for the balance of his or
her term.
The Certificate provides that the Common Directors will be divided into
three classes serving staggered three-year terms. Each class will consist, as
nearly as possible, of one-third of the whole number of Common Directors. The
classification of the Common Directors and the separate voting for the Preferred
Directors has the effect of making it more difficult for stockholders to change
the composition of the Board of Directors in a relatively short period of time.
At least three annual meetings of stockholders will generally be required to
effect a change in a majority of the Board of Directors.
The By-laws may be amended by a majority of the Board of Directors, subject
to the right of the stockholders to amend the By-laws by the affirmative vote of
the holders of at least two-thirds of the outstanding shares of Common Stock and
Class A Preferred Stock voting as a single class. The Certificate may be amended
by the affirmative vote of the holders of a majority of the outstanding shares
of Common Stock and Class A Preferred Stock voting as a single class, except
that the affirmative vote of the holders of at least two-thirds of such shares
is required to amend certain provisions, including the provisions establishing a
classified board and prohibiting action by written consent.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is The Bank of New
York.
DESCRIPTION OF NEW CREDIT FACILITY
Clearview Cinema Group, Inc. (the "Borrower") has entered into a Senior
Bank Credit Facility with The Provident Bank (the "New Credit Facility"). The
following is a summary of certain provisions of the New Credit Facility and does
not purport to be complete and is subject to, and is qualified in its entirety
by reference to, the definitive terms of the New Credit Facility.
The New Credit Facility provides for revolving credit loans in an aggregate
principal amount not to exceed $15.0 million, with all outstanding indebtedness
thereunder repayable on the fifth anniversary of the closing of the New Credit
Facility. Revolving credit loans will be available for general corporate
purposes, including working capital and theater acquisitions. Amounts borrowed
under the New Credit Facility may be repaid and reborrowed, provided that the
Borrower is in compliance with all covenants under the New Credit Facility, and
if, following consummation of such borrowing, the ratios of senior indebtedness
under the New Credit Facility to
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consolidated EBITDA, determined on a pro forma basis with adjustments acceptable
to The Provident Bank, does not exceed 3.5 to 1. Availability under the New
Credit Facility is $15.0 million.
In addition, the New Credit Facility provides for mandatory prepayments
equal to (i) the net proceeds of certain extraordinary dispositions (unless the
Borrower reasonably intends to reinvest the proceeds in specified assets within
six months or other exceptions are applicable) and (ii) certain unused
condemnation and insurance proceeds.
The Borrower's obligations under the New Credit Facility are guaranteed by
all of the Borrower's present direct and indirect subsidiaries, and secured by
the pledge of the stock of all direct and indirect subsidiaries of the Borrower.
The subsidiary guarantees are secured by substantially all of the assets of each
such subsidiary.
Loans under the New Credit Facility will bear interest at a rate equal to
The Provident Bank's prime rate. Following the occurrence and during the
continuation of an event of default under the New Credit Facility, the loans
will bear interest at the applicable rate plus 2%.
The New Credit Facility ranks pari passu in right of payment with the
Notes, except that the Notes are unsecured. The New Credit Facility contains
covenants that, among other things, restrict the ability of the Borrower and its
subsidiaries to materially change the nature of their business, consolidate with
or merge with or into other entities, make payments of principal or interest on
contractually subordinated debt (in each case subject to certain exceptions),
incur lease obligations, pay management compensation in excess of specified
amounts, dispose of assets or businesses, make investments, grant liens,
mortgages or other encumbrances, agree to restrictions on payments of dividends
or intercompany indebtedness, incur indebtedness, enter into sale-leaseback
transactions, enter into transactions with affiliates except on an arm's length
basis, incur capital expenditures in excess of specified amounts and otherwise
restrict corporate activities. In addition, the New Credit Facility requires
compliance with certain financial covenants, including requiring the Borrower
and its subsidiaries to maintain a minimum interest coverage ratio, a minimum
debt service coverage ratio, and a minimum senior secured indebtedness under the
New Credit Facility to consolidated EBITDA ratio. The Borrower does not expect
that such covenants will materially impact the ability of the Borrower and its
subsidiaries to operate their respective businesses.
The terms of the New Credit Facility permit the Borrower to make payments
on pari passu debt (including the Notes). There are no limitations in the New
Credit Facility on the ability of the subsidiaries of the Borrower to make
distributions to the Borrower.
The New Credit Facility contains customary events of default, including the
failure to pay principal when due or any interest or other amount that becomes
due within three days after the due date thereof, any representation or warranty
being made by the Borrower that is incorrect in any material respect on or as of
the date made, a default in the performance of any negative covenants or a
default in the performance of certain other covenants or agreements for a period
of thirty days, default in certain other indebtedness, certain insolvency
events, rendering of judgments against the Borrower in specified amounts and
failure to satisfy such judgments within specified periods, occurrence of a
material adverse effect (i.e. an event which will, or is reasonably likely to,
have a material adverse effect on the collateral under the New Credit Facility
or upon the financial condition, operations, assets or prospects in the
aggregate of the Borrower) and certain change of control events (including a
Change of Control as defined in the Indenture). In addition, the New Credit
Facility provides that a default under the Indenture will result in a default
under the New Credit Facility.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following general discussion summarizes certain of the material U.S.
federal income tax consequences of the Exchange Offer to holders of the Old
Notes. This discussion is a summary for general information only and does not
consider all aspects of U.S. federal income tax that may be relevant to a holder
of the Old Notes in light of such holder's personal circumstances. This
discussion also does not address the U.S. federal income tax consequences to
holders subject to special treatment under the U.S. federal income tax laws,
such as dealers in securities or foreign currency, tax-exempt entities, banks,
thrifts, insurance companies, persons that hold the Old Notes as part of a
"straddle," a "hedge" against currency risk or a "conversion transaction,"
persons that have a
123
129
"functional currency" other than the U.S. dollar, and investors in pass-through
entities. In addition, this discussion does not describe any tax consequences
arising out of the tax laws of any state, local or foreign jurisdiction.
This discussion is based upon the Code, existing and proposed regulations
thereunder, Internal Revenue Service ("IRS") rulings and pronouncements and
judicial decisions now in effect, all of which are subject to change (possibly
on a retroactive basis). The Company has not and will not seek any rulings or
opinions from the IRS or counsel with respect to the matters discussed below.
There can be no assurance that the IRS will not take positions concerning the
tax consequences of the Exchange Offer which are different from those discussed
herein.
HOLDERS OF OLD NOTES SHOULD CONSULT THEIR OWN ADVISORS CONCERNING THE
APPLICATION OF U.S. FEDERAL INCOME TAX LAWS, AS WELL AS THE LAWS OF ANY STATE,
LOCAL OR FOREIGN TAXING JURISDICTION, TO THE EXCHANGE OFFER IN LIGHT OF THEIR
PARTICULAR SITUATIONS.
The exchange of Old Notes for New Notes pursuant to the Exchange Offer
should not constitute a taxable exchange. As a result, (i) a holder should not
recognize taxable gain or loss as a result of exchanging Old Notes for New Notes
pursuant to the Exchange Offer; (ii) the holding period of the New Notes should
include the holding period of the Old Notes exchanged therefor and (iii) the
adjusted tax basis of the New Notes should be the same as the adjusted tax basis
of the old Notes exchanged therefor immediately before the exchange
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Notes for its own account in
connection with the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of New Notes received in exchange for
Old Notes if such Old Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that for a period
of 90 days after the date of this Prospectus, it will make this Prospectus, as
amended or supplemented, available to any broker-dealer that requests such
documents in the Letter of Transmittal, for use in connection with any such
resale. In addition, until (90 days after the date of this
Prospectus), all dealers effecting transactions in the New Notes may be required
to deliver a prospectus.
The Company will not receive any proceeds from any sale of New Notes by
broker-dealers. New Notes received by broker-dealers for their own account in
connection with the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the New Notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such New Notes. Any broker-dealer
that resells New Notes that were received by it for its own account in
connection with the Exchange Offer and any broker or dealer that participates in
a distribution of such New Notes may be deemed to be an "underwriter" within the
meaning of the Securities Act, and any profit on any such resale of New Notes
and any commissions or concessions received by any such persons may be deemed to
be underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
LEGAL MATTERS
The validity of the New Notes offered hereby will be passed upon for the
Company by Kirkpatrick & Lockhart LLP.
124
130
EXPERTS
The consolidated financial statements of Clearview Cinema Group, Inc. and
its subsidiaries as of December 31, 1997 and for the year then ended included in
this Prospectus have been audited by PricewaterhouseCoopers LLP, independent
accountants, as stated in their report appearing herein.
The consolidated financial statements of Clearview Cinema Group, Inc. and
its subsidiaries as of December 31, 1996 and for each of the two years in the
period then ended, the combined financial statements of the UA I Theaters as of
December 31, 1996 and for each of the two years in the period then ended, the
combined financial statements of the Nelson Ferman Theaters as of September 30,
1997 and for the nine months then ended and the year ended December 31, 1996,
and the combined financial statements of the CJM Theaters as of September 30,
1997 and for the nine months then ended and for the year ended December 31, 1996
have been audited by Wiss & Company, LLP, independent auditors, as set forth in
their respective reports appearing herein.
125
131
INDEX TO FINANCIAL STATEMENTS
PAGE
----
CLEARVIEW CINEMA GROUP, INC.
Consolidated Balance Sheets as of December 31, 1997 and
June 30, 1998.......................................... F-2
Consolidated Statements of Operations for the Three and
Six Months Ended June 30, 1997 and 1998................ F-3
Consolidated Statement of Changes in Stockholders' Equity
for the Six Months Ended June 30, 1998................. F-4
Consolidated Statements of Cash Flows for the Six Months
Ended June 30, 1997 and 1998........................... F-5
Notes to Consolidated Financial Information............... F-6
CLEARVIEW CINEMA GROUP, INC.
Report of Independent Accountants (PricewaterhouseCoopers
LLP)................................................... F-13
Independent Auditors' Report (Wiss & Company, LLP)........ F-14
Consolidated Balance Sheet as of December 31, 1996 and
1997................................................... F-15
Consolidated Statement of Operations for the Years Ended
December 31, 1995, 1996 and 1997....................... F-16
Consolidated Statement of Changes in Stockholders' Equity
for the Years Ended December 31, 1995, 1996 and
1997................................................... F-17
Consolidated Statement of Cash Flows for the Years Ended
December 31, 1995, 1996 and 1997....................... F-18
Notes to Consolidated Financial Statements................ F-19
THEATERS ACQUIRED FROM UNITED ARTISTS
Independent Auditors' Report (Wiss & Company, LLP)........ F-33
Combined Balance Sheets at December 31, 1996 and March 31,
1997 (unaudited)....................................... F-34
Combined Statements of Income and Divisional Equity for
the Years Ended December 31, 1995 and 1996 and the
Three Months Ended March 31, 1996 and 1997
(unaudited)............................................ F-35
Combined Statements of Cash Flows for the Years Ended
December 31, 1995 and 1996 and the Three Months Ended
March 31, 1996 and 1997 (unaudited).................... F-36
Notes to Combined Financial Statements.................... F-37
THEATERS ACQUIRED FROM NELSON FERMAN THEATERS AT PARSIPPANY
AND ROXBURY
Independent Auditors' Report (Wiss & Company, LLP)........ F-40
Combined Balance Sheet at September 30, 1997.............. F-41
Combined Statements of Income and Changes in Retained
Earnings for the Year Ended December 31, 1996 and the
Nine Months Ended September 30, 1997................... F-42
Combined Statements of Cash Flows for the Year Ended
December 31, 1996 and Nine Months Ended September 30,
1997................................................... F-43
Notes to Combined Financial Statements.................... F-44
THEATERS ACQUIRED FROM CJM THEATERS AT KIN-MALL,
MIDDLEBROOK, CEDAR GROVE AND BELLEVUE
Independent Auditors' Report (Wiss & Company, LLP)........ F-47
Combined Balance Sheet, September 30, 1997................ F-48
Combined Statements of Income and Changes in Retained
Earnings for the Year Ended December 31, 1996 and the
Nine Months Ended September 30, 1997................... F-49
Combined Statements of Cash Flow for the Year Ended
December 31, 1996 and the Nine Months Ended September
30, 1997............................................... F-50
Notes to Combined Financial Statements.................... F-51
F-1
132
CLEARVIEW CINEMA GROUP, INC.
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, JUNE 30,
1997 1998
------------ -----------
(UNAUDITED)
ASSETS
Current Assets:
Cash and cash equivalents................................. $ 1,647,176 $21,239,630
Inventories............................................... 116,655 187,087
Other current assets...................................... 341,273 559,211
----------- -----------
Total current assets.............................. 2,105,104 21,985,928
Property, Equipment and Leaseholds, Net..................... 34,488,714 41,282,655
Intangible assets, net...................................... 19,931,555 33,199,903
Other non-current assets.................................... 827,019 804,712
----------- -----------
$57,352,392 $97,273,198
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Current maturities of long-term debt...................... $ 2,876,607 $ --
Accounts payable and accrued expenses..................... 4,562,633 6,283,167
----------- -----------
Total current liabilities......................... 7,439,240 6,283,167
Long-term debt, less current maturities..................... 32,234,955 80,000,000
Subordinated notes payable--long term....................... 6,000,000 --
Commitments and Contingencies (Note 7)
Class B Redeemable Preferred Stock.......................... 1,350,000 750,000
Stockholders' Equity:
Undesignated preferred stock:
2,475,697 shares authorized............................ -- --
Class A Preferred Stock, par value $.01, 1,303 shares
authorized; 779 shares issued and outstanding.......... 8 8
Class C Preferred Stock, par value $.01, 3,000 shares
authorized; 3,000 shares issued and outstanding........ -- 30
Common Stock, par value $.01, 10,000,000 shares
authorized; 2,213,097 and 2,304,802 shares issued and
outstanding............................................ 22,131 23,048
Additional paid-in capital................................ 12,214,515 18,230,563
Accumulated deficit....................................... (1,908,457) (8,013,618)
----------- -----------
Total stockholders' equity........................ 10,328,197 10,240,031
----------- -----------
$57,352,392 $97,273,198
=========== ===========
See accompanying notes to consolidated financial information.
F-2
133
CLEARVIEW CINEMA GROUP, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
------------------------- -------------------------
1997 1998 1997 1998
---------- ----------- ---------- -----------
THEATER REVENUES:
Box office...................................... $1,996,644 $ 6,567,730 $4,708,854 $13,644,849
Concession...................................... 593,835 2,307,209 1,337,821 4,591,268
Other........................................... 91,396 269,889 141,135 589,520
---------- ----------- ---------- -----------
2,681,875 9,144,828 6,187,810 18,825,637
---------- ----------- ---------- -----------
OPERATING EXPENSES:
Film rental..................................... 992,574 3,469,187 2,188,700 6,529,384
Cost of concession sales........................ 106,029 302,683 221,278 660,148
Theater operating expenses...................... 1,228,805 3,685,008 2,448,960 7,140,267
General and administrative expenses............. 212,912 659,720 404,718 1,669,519
Depreciation and amortization................... 384,696 1,619,943 797,707 2,882,568
---------- ----------- ---------- -----------
2,925,016 9,736,541 6,061,363 18,881,886
---------- ----------- ---------- -----------
OPERATING (LOSS) INCOME........................... (243,141) (591,713) 126,447 (56,249)
Interest expense, net............................. 365,180 1,465,601 724,146 2,626,348
---------- ----------- ---------- -----------
LOSS BEFORE EXTRAORDINARY ITEM.................... (608,321) (2,057,314) (597,699) (2,682,597)
Extraordinary item--loss on redemption of debt.... -- (2,029,649) -- (2,029,649)
---------- ----------- ---------- -----------
NET LOSS.......................................... (608,321) (4,086,963) (597,699) (4,712,246)
Preferred Stock Dividends......................... -- (1,362,990) -- (1,392,915)
---------- ----------- ---------- -----------
LOSS AVAILABLE FOR COMMON STOCK................... $ (608,321) $(5,449,953) $ (597,699) $(6,105,161)
========== =========== ========== ===========
BASIC AND DILUTED LOSS PER SHARE.................. $ (0.34) $ (2.39) $ (0.33) $ (2.71)
========== =========== ========== ===========
See accompanying notes to consolidated financial information.
F-3
134
CLEARVIEW CINEMA GROUP, INC.
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
SIX MONTHS ENDED JUNE 30, 1998
(UNAUDITED)
CLASS A CLASS C
PREFERRED STOCK COMMON STOCK PREFERRED STOCK ADDITIONAL
--------------- ------------------- --------------- PAID-IN ACCUMULATED
SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT TOTAL
------ ------ --------- ------- ------ ------ ----------- ----------- -----------
BALANCE, DECEMBER 31, 1997:... 779 $8 2,213,097 $22,131 -- -- $12,214,515 $(1,908,457) $10,328,197
Issuance of common stock
for assets acquired....... -- -- 91,705 917 -- -- 1,747,083 -- 1,748,000
Issuance of preferred
stock..................... -- -- 3,000 $30 2,973,727 -- 2,973,757
Preferred stock dividend.... -- -- -- -- -- -- 1,295,238 (1,392,915) (97,677)
Net loss.................... -- -- -- -- -- -- -- (4,712,246) (4,712,246)
--- -- --------- ------- ----- --- ----------- ----------- -----------
BALANCE, JUNE 30, 1998........ 779 $8 2,304,802 23,048 3,000 $30 $18,230,563 $(8,013,618) $10,240,031
=== == ========= ======= ===== === =========== =========== ===========
See accompanying notes to consolidated financial information.
F-4
135
CLEARVIEW CINEMA GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
SIX MONTHS ENDED
JUNE 30,
---------------------------
1997 1998
----------- ------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss.................................................. $ (597,699) $ (4,712,246)
Adjustments to reconcile net loss to net cash provided by
operating activities:
Depreciation and amortization of property, equipment
and leaseholds........................................ 705,071 1,945,546
Amortization of intangible assets...................... 92,636 937,022
Amortization of debt discount and issuance costs....... 87,649 179,607
Extraordinary loss from early extinguishment of debt... -- 2,029,649
Changes in operating assets and liabilities:
Inventories.......................................... (3,908) (70,432)
Other current assets................................. (125,005) (217,938)
Other non-current assets............................. 769 (46,821)
Accounts payable and accrued expenses................ 378,013 1,671,097
----------- ------------
Net cash provided by operating activities......... 537,526 1,715,484
----------- ------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase and construction of property, equipment and
leaseholds............................................. (1,392,692) (2,871,487)
Acquisitions of theaters.................................. -- (15,025,000)
Acquisition costs......................................... (101,036) (231,171)
----------- ------------
Net cash used in investing activities............. (1,493,728) (18,127,658)
----------- ------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of long term debt.................. 1,550,000 85,800,000
Payments on long term debt................................ (423,621) (47,154,291)
Prepayment premium on long term debt repaid............... -- (410,000)
Debt issuance costs....................................... -- (4,556,598)
Deferred offering costs................................... (163,285) --
Redemption of class B preferred stock..................... -- (600,000)
Proceeds from issuance of class C preferred stock......... -- 3,000,000
Preferred stock issuance costs............................ -- (26,243)
Preferred stock dividends paid............................ -- (48,240)
----------- ------------
Net cash provided by financing activities......... 963,094 36,004,628
----------- ------------
NET CHANGE IN CASH AND CASH EQUIVALENTS..................... 6,892 19,592,454
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD.............. 751,345 1,647,176
----------- ------------
CASH AND CASH EQUIVALENTS, END OF PERIOD.................... $ 758,237 $ 21,239,630
=========== ============
SUPPLEMENTAL CASH FLOW INFORMATION:
Interest paid............................................. $ 577,080 $ 2,432,164
=========== ============
Non-cash investing and financing activities:
Issuance of common stock as consideration for theater
and assets acquired................................... $ -- $ 1,748,000
=========== ============
Warrants repurchased through issuance of debt.......... $ 1,000,000 $ --
=========== ============
See accompanying notes to consolidated financial information.
F-5
136
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL INFORMATION
NOTE 1--BASIS OF PRESENTATION
The balance sheet as of December 31, 1997 has been derived from the audited
balance sheet contained elsewhere herein of Clearview Cinema Group, Inc. (the
"Company"), and is presented for comparative purposes. All other financial
information is unaudited. In the opinion of management, all adjustments, which
include only normal recurring adjustments necessary to present fairly the
financial position, results of operations and cash flows for all periods
presented, have been made. Results of operations for interim periods are not
necessarily indicative of the operating results for a full year.
Footnote disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been omitted in
accordance with the published rules and regulations of the Securities and
Exchange Commission. The financial information presented in this report should
be read in conjunction with the annual financial statements included elsewhere
herein.
In February 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards 128, Earnings Per Share ("SFAS 128") which is
effective for financial statements for both interim and annual periods ending
after December 15, 1997. The Company adopted SFAS 128 in the fourth quarter of
1997. SFAS 128 replaces the presentation of primary and fully diluted earnings
per share with basic and diluted earnings per share. Basic earnings per share is
calculated based on the weighted average number of common shares outstanding
during the period and excludes all dilution. Diluted earnings per share is
calculated by using the weighted average number of common shares outstanding,
while also giving effect to all dilutive potential common shares that were
outstanding during the period. Prior period amounts have been restated to
conform to the requirements of SFAS 128.
For the three and six months ended June 30, 1998, the net loss available to
common stockholders was $5,449,953 and $6,105,161, respectively after giving
effect to the preferred stock dividend. For the three and six months ended June
30, 1997, the net loss available to common stockholders (no preferred dividend
was applicable for the 1997 periods) was $608,321 and $597,699, respectively.
For the three and six months ended June 30, 1998 the weighted average number of
shares outstanding used in the computation of basic and diluted loss per share
was 2,280,288 and 2,250,717, respectively. For the three and six months ended
June 30, 1997, the weighted average number of shares outstanding used in the
computation of basic and diluted loss per share was 1,797,000.
Reclassification--Certain amounts previously reported have been
reclassified to conform to current period presentation.
NOTE 2--STOCK BASED COMPENSATION
At the June 11, 1998 Annual Meeting of Stockholders, the shares of common
stock that are authorized to be issued under the 1997 Stock Incentive Plan ("the
Plan") was increased from 200,000 to 450,000. During the three and six months
ended June 30, 1998 the Company granted stock options to purchase 101,000 and
162,000 shares of common stock, respectively, under the Plan with exercise
prices equal to the closing quoted market price of the Company's common stock on
the date of grant. In accordance with Accounting Principles Board Opinion No.
25, "Accounting for Stock Issued to Employees", no compensation costs have been
recognized as the options had no intrinsic value (exercise price equaled fair
value of common stock) on the dates of issuance. Awards granted under the Plan
become fully vested upon a change in control of the Company (see Note 8).
NOTE 3--LONG-TERM DEBT AND SUBORDINATED NOTES PAYABLE
In February 1998, the Company amended and restated its then-existing Credit
Facility (the "Old Credit Facility") by obtaining a third term note ("Term Note
C") totaling $5.8 million which was used to acquire four additional theaters.
F-6
137
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL INFORMATION--(CONTINUED)
In June 1998, the Company completed an offering of Senior Notes (the
"Notes") for $80.0 million (approximately $76.1 million after issuance costs and
related fees). The Notes mature on June 1, 2008 and bear interest at a fixed
rate of 10.875%, payable semiannually on June 1 and December 1, commencing on
December 1, 1998. At any time prior to June 1, 2001, the Company may on any one
or more occasions redeem up to 33% of the aggregate principal amount of Notes at
a redemption price of 110.875% of the principal amount thereof, with the net
cash proceeds of a public offering of common stock of the Company or the net
cash proceeds from a strategic equity investment in the Company, provided that,
among other things, at least $53.3 million in the aggregate principal amount of
the Notes remains outstanding immediately after such redemption. After June 1,
2003 the Notes are subject to redemption at any time at the option of the
Company, at specified redemption prices. Upon a change of control of the
Company, each holder of the Notes shall have the right to require the Company to
repurchase all or any part of such holder's Notes at an offer price equal to
101% of the aggregate principal amount thereof. The Notes also stipulate that
the holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes due and payable immediately upon the occurrence of
certain events of default, such as default in payment of principal and interest
when due, default under other agreements relating to indebtedness individually
or in the aggregate exceeding $5 million and failure to comply with the
covenants and other provisions of the Notes agreement. The Notes further provide
that if any event of default occurs prior to June 1, 2003 and is due to any
willful action or inaction taken or not taken by the Company with the intention
of avoiding the prohibition on redemption of certain portions of the Notes prior
to June 1, 2003, then the Notes shall become immediately due and payable at a
specified premium, ranging from 107.25% to 110.875% of the principal amount
depending on the date the event of default occurs. The Notes impose various
restrictive covenants, including restrictions on the payment of dividends, the
incurrence of additional indebtedness, the entering into of certain transactions
and the issuance of preferred stock in certain circumstances.
Concurrent with the closing of the Notes offering, the Company repaid the
borrowings under the Old Credit Facility ($41.1 million, including accrued
interest and a prepayment premium) and entered into a New Credit Facility with
the same institution, which provides for a secured revolving line of credit in
the aggregate principal amount of $15.0 million. The New Credit Facility bears
interest at the prime rate (8.50% at June 30, 1998) with all outstanding
indebtedness repayable on the fifth anniversary of the closing of the New Credit
Facility. The New Credit Facility is collateralized by substantially all of the
assets of the Company and contains various restrictive covenants including
minimum interest and debt service coverage ratios, restrictions on the payment
of dividends (except on the Class B Preferred Stock and Class C Preferred Stock
now outstanding), restrictions on payments to purchase, redeem or otherwise
acquire or retire for value any shares or rights to acquire shares of the
Company's capital stock and subordinated indebtedness (except the Class B
Preferred Stock, Class C Preferred Stock and any subordinated indebtedness
outstanding at the time of the agreement), the incurrence of additional
indebtedness and the entering into of certain transactions. The New Credit
Facility agreement further stipulates that the lender may terminate the credit
commitment and declare all of the amounts outstanding under the agreement to be
immediately due and payable upon the occurrence of certain events including
default on payment of principal and interest when due, noncompliance with
covenants, default under other agreements relating to indebtedness individually
or in the aggregate exceeding $5 million, and change of control of the Company.
There were no amounts outstanding under the New Credit Facility as of the date
hereof.
In June 1998 the Company repaid the $6.0 million of Subordinated Notes
Payable, issued in 1997 to the seller in connection with the Nelson Ferman
Acquisition, from the proceeds of the Notes and Class C Preferred Stock
offerings (see Note 4).
NOTE 4--PREFERRED STOCK
In April 1998 the Company designated a new series, consisting of 3,000
shares of its preferred stock, $.01 par value, as Class C Convertible Preferred
Stock (the "Class C Preferred Stock"). Concurrently, the Company entered into a
Securities Purchase Agreement and issued the 3,000 shares of its Class C
Preferred Stock for $2.97 million in cash, net of offering costs.
F-7
138
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL INFORMATION--(CONTINUED)
The conversion feature grants the holder of the Class C Preferred Stock the
right to convert to common stock based on a formula any time after July 20, 1998
at a conversion price equal to the lesser of (a) $21.95 and (b) 87 1/2% of the
average of the 4th, 5th, and 6th lowest closing trade price of the Company's
common stock during the 20 trading days preceding the conversion date. As more
fully described in Note 8, on August 13, 1998 an announcement was made of a
definitive agreement for Cablevision Systems Corp. to acquire all outstanding
shares of the Company's common stock. The Class C Preferred Stock Agreement
provides that, upon any public announcement by the Company regarding such a
change of control transaction, the conversion price of the Class C Preferred
Stock adjusts to the lower of (a) the average closing trade price of the
Company's common stock for the five trading days immediately preceding the
announcement date ($22.11), and (b) the conversion price as determined by the
conversion formula discussed above and will remain in effect for a specified
period of time. The holder of the Class C Preferred Stock is subject to certain
conversion limitations which restricts conversion of the preferred shares if (a)
the aggregate number of shares of the Company's common stock already issued and
to be issued on conversion would exceed 19.99% of the number of the Company's
common stock outstanding, and (b) the number of shares of the Company's common
stock beneficially owned by the holder plus the number of shares of the
Company's common stock issuable upon conversion would equal or exceed 4.99% of
the number of shares of the Company's common stock then issued and outstanding.
The Class C Preferred Stock will be automatically converted two years following
the issue date.
The Class C Preferred Stock agreement also provides the holders the right
to redeem their preferred shares at a price based on a formula upon the
occurrence of certain events involving voluntary actions or failure to take
action by the Company, such as change in control transactions, failure to
deliver shares of common stock upon conversion of the Class C Preferred Stock,
delisting of the Company's common stock on a national exchange and material
breach of covenants and other terms of the agreements surrounding the issuance
of the Class C Preferred Stock.
In accordance with the Registration Rights agreement included in the
Securities Purchase Agreement, the Company filed with the Securities and
Exchange Commission a registration statement covering 257,143 shares of the
Company's common stock representing at least 150% of the number of shares of
common stock then issuable upon conversion of the Class C Preferred Stock.
In accordance with Emerging Issues Task Force Abstract D-60 ("EITF Abstract
D-60"), "Accounting for the Issuance of Convertible Preferred Stock with a
Nondetachable Conversion Feature", the intrinsic value of the beneficial
conversion feature of the Class C Preferred Stock, which is measured as the
difference between the conversion price and fair value of the common stock on
the date of issuance, is recognized as a non-cash preferred stock dividend over
the period from issuance to earliest conversion (90 days) in the statement of
changes in stockholders' equity. Based on the Company's stock price on April 23,
1998 (date of issuance), the fair value of the conversion feature is $1,714,286,
which will be recorded as a preferred stock dividend on a straight line basis
over the period from issuance through July 20, 1998, the earliest conversion
date. The amount recorded from issuance through June 30, 1998 was $1,295,238,
with the remainder to be recorded in July 1998.
In June 1998, the Company redeemed 600 shares of its Class B Preferred
Stock for $600,000 from the proceeds of the Notes (see Note 3) and the Class C
Preferred Stock offerings. The holder of the remaining 750 shares of Class B
Preferred Stock acquired the right to require the Company to redeem the shares
for $750,000 at any time upon the consummation of the Notes offering on June 12,
1998.
NOTE 5--THEATER ACQUISITIONS:
During the first quarter of 1998, the Company acquired a total of four
theaters and acquired the right to operate two theaters, totaling twenty one
screens, and during the second quarter of 1998 the Company acquired a total of
three theaters and 23 screens, located in New Jersey and New York. The
acquisitions have been accounted for under the purchase method of accounting.
Under the purchase method of accounting, the purchase price for each transaction
has been allocated based on the estimated fair value of identifiable tangible
and intangible assets
F-8
139
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL INFORMATION--(CONTINUED)
(principally property, equipment and leasehold interest) of the respective
theaters with the excess purchase price, together with acquisition costs, being
allocated to goodwill. The results of operations of the acquired theaters are
included in the accompanying consolidated financial information from the
respective acquisition dates.
Clairidge Acquisition--In February 1998, the Company acquired substantially
all the assets, including the leasehold interest, equipment and various
operating contracts, of one theater from Clairidge Cinemas, Inc. (the "Clairidge
Acquisition") for a total purchase price of $2.3 million. The Company paid $2.1
million in cash from borrowings under the Old Credit Facility and issued 14,782
shares of Company common stock with an aggregate market value of $200,000 based
on the closing price of the Company's stock on the ten trading days preceding
the acquisition. The leasehold interest acquired is to be amortized over the
theater lease, which has a remaining lease term through December 31, 2016. The
purchase price has been allocated as follows:
Leasehold interest............................. $ 104,500
Equipment...................................... 345,000
Goodwill....................................... 1,850,500
----------
$2,300,000
==========
UA II Acquisition--In March 1998, the Company acquired substantially all
the assets, including land, building, equipment and various operating contracts,
of two theaters from United Artists Theater Circuit, Inc. (the "UA II
Acquisition") for a total purchase price of $1.5 million paid in cash from
borrowings under the Old Credit Facility. The purchase price has been allocated
as follows:
Land........................................... $ 252,000
Building....................................... 1,008,000
Equipment...................................... 240,000
----------
$1,500,000
==========
Cobble Hill Acquisition--In March 1998, the Company acquired substantially
all the assets, including equipment and various operating contracts of one
theater from Cobble Hill Cinemas, Inc. (the "Cobble Hill Acquisition") for a
total purchase price of $2.15 million, paid in cash from borrowings under the
Old Credit Facility. The purchase price has been allocated as follows:
Equipment...................................... $ 188,500
Non-compete.................................... 14,000
Goodwill....................................... 1,947,500
----------
$2,150,000
==========
Great Neck/Franklin Square Acquisition--In June 1998, the Company acquired
substantially all the assets, including the leasehold interests, equipment and
various operating contracts of two theaters from Great Neck Theater Associates,
Inc. and WSA Theater Corp. (the "Great Neck/Franklin Square Acquisition") for a
total purchase price of $6.5 million, paid in cash from the proceeds of the
Notes and Class C Preferred Stock offerings. The purchase price has been
allocated as follows:
Leasehold Interest............................. $ 458,000
Equipment...................................... 1,022,000
Non-compete.................................... 23,000
Goodwill....................................... 4,997,000
----------
$6,500,000
==========
F-9
140
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL INFORMATION--(CONTINUED)
AMC Acquisition--In June 1998, the Company acquired substantially all the
assets, including the leasehold interest, equipment and various operating
contracts of one theatre from American Multi-Cinema, Inc. (the "AMC
Acquisition") for a total purchase price of $2.775 million, paid in cash from
the proceeds of the Notes and Class C Preferred Stock offerings. The purchase
price has been allocated as follows:
Leasehold Interest............................. $ 242,000
Equipment...................................... 460,000
Goodwill....................................... 2,073,000
----------
$2,775,000
==========
NOTE 6--EXTRAORDINARY CHARGE:
In connection with the early extinguishment of the debt under the Old
Credit Facility (see Note 3), the Company recognized an extraordinary charge of
$2,029,649 or $.89 and $.90 per share for the three and six months ended June
30, 1998, respectively. The extraordinary charge consisted of a prepayment
premium of $410,000 and the write-off of unamortized debt discount and debt
issuance costs of $242,729 and $1,376,920, respectively.
NOTE 7--COMMITMENTS AND CONTINGENCIES
In June 1998, the Company entered into an agreement, subject to obtaining
certain approvals, to develop a new multiplex theater in Wayne, PA. Construction
is expected to be completed by December 1998 and is estimated to cost $750,000.
In addition, monthly rental payments of $4,500 will be due on the earlier of 120
days after all permits have been obtained or the date that the Company begins
operating the theater.
In June 1998, the Company entered into agreements to purchase the Colony
Cinemas in Livingston, NJ (3 screens) and the West Milford Cinemas in West
Milford, NJ (4 screens) for an aggregate of $1.5 million in cash. The Company
will purchase the land, building and other assets of the Colony Cinemas, and the
leasehold interest underlying the West Milford Cinemas. These acquisitions are
expected to be completed by the end of August 1998.
In March 1998, the Company entered into an agreement to develop a new
multiplex theater in Putnam County, NY. The agreement provides that after the
theater is constructed the Company will add the seats and other theater
equipment at an estimated cost of approximately $1.1 million. Monthly rental
payments of approximately $22,500 are payable beginning on the earlier of 120
days after the landlord completes construction and the date that Clearview
begins operating the theater. Construction is expected to be completed by the
end of 1998.
In February 1998, the Company entered into a lease agreement to operate a
theater facility in Montclair, N.J. for ten years with four 5-year renewal
options. The lease provides for a monthly base rent of $3,125 and is adjusted
upward each year based on a formula.
In connection with the CJM Acquisition consummated in 1997, the Company
agreed to pay the seller additional consideration of 750 shares of Class B
redeemable preferred stock valued at $750,000 if another competing theater is
not opened in the operating vicinity of the purchased theaters within two years
of the date of the agreement, or December 12, 1999. However, such consideration
is deemed to be contingent and, as such, will only be recorded on when it
becomes probable that no competing theater will be opened by December 12, 1999.
On April 30, 1998, the Company issued 76,923 shares of common stock having
a market value of $1,548,000 in order to acquire the leasehold interest and
related construction permit from Warren County Cinemas, for a 15-screen
multiplex theater in Mansfield, NJ. The shareholders of Warren County Cinemas
have the right to receive additional consideration, dependent upon future
earnings of the theater for the next two years,
F-10
141
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL INFORMATION--(CONTINUED)
of up to $500,000. The shares of common stock issued are unregistered shares and
are subject to a Voting Trust Agreement whereby the Chairman of the Company has
the right to exercise all rights as an owner of the shares, including the right
to vote, until the shares are sold or registered. The shares may be sold at any
time subject to certain restrictions on the amount and holding period of the
shares as stipulated under Rule 144 of the Securities Act of 1933 ("the
Securities Act"). The shareholders also have the right to participate in certain
registered offerings undertaken by the Company under the Securities Act that
could result in the sale of the shares held. Construction began in May 1998 and
is expected to be completed by the end of October 1998. The estimated cost of
development is $3.1 million. The Company began paying 50% of the monthly rental
payments of $29,167 and will become liable for the full monthly rent on the
earlier of the opening of the theater and January 1, 1999.
In February 1997, the Company entered into an agreement to lease a new
multiplex theater to be constructed in Bayonne, N.J. The landlord has agreed to
install all seats and other theater equipment according to the Company's
specifications, and therefore the Company does not expect to incur any capital
costs for the project. Construction is expected to be completed in early 1999,
at which time the Company would be obligated to begin monthly rental payments of
$41,667.
During September 1995, the Company entered into an agreement providing for
the lease of three New York theater locations with annual combined rent of
approximately $300,000 and the option to purchase certain assets of the three
theaters through September 2000. Until the exercise of this option, the Company
is required to make annual payments which are recorded as interest expense. It
is the Company's intention to exercise this option.
NOTE 8--SUBSEQUENT EVENTS
On August 13, 1998, the Company announced that it had entered into an
Agreement and Plan of Merger among Cablevision Systems Corporation
("Cablevision"), CCG Holdings Inc., a subsidiary of Cablevision, and the
Company, pursuant to which the Company would be acquired by Cablevision. Each
issued and outstanding share of common stock of the Company would be acquired at
$24.25 per share, payable in a combination of cash and Cablevision common stock
on the basis of 55% cash and 45% Cablevision common stock. The gross value of
the transaction is estimated at approximately $160 million, based on the
acquisition of approximately 3.3 million shares of the Company's common stock on
a fully diluted basis and the assumption of the $80 million of Notes outstanding
as of August 13, 1998.
The consummation of the transaction, expected to be completed in the fourth
quarter of 1998, is subject to the satisfaction of certain closing conditions
including, among others, receipt of certain governmental approvals and approval
of the transaction by the stockholders of the Company. Approximately 54.7% of
the voting stockholders of the Company have entered into agreements with
Cablevision pursuant to which such stockholders have agreed to vote their
securities in favor of the transaction.
The acquisition of the Company by Cablevision would be considered a change
in control transaction which would trigger certain provisional rights as
stipulated in various security and debt agreements of the Company. Specifically,
a change in control would (a) entitle the holders of the Notes the right to
require the Company to repurchase all or any portion of the Notes at 101% of the
aggregate principal amount outstanding, (b) grant the lender under the New
Credit Facility the right to terminate the credit commitment and declare all
amounts outstanding immediately due and payable, (c) result in an adjustment of
the conversion price of the Class C Preferred Stock and also give the holders
the right to redeem the shares held, (d) result in all stock options outstanding
to purchase 284,500 shares of the Company's common stock to become fully
exercisable, and (e) result in the automatic conversion of the Class A Preferred
Stock into 467,400 shares of the Company's common stock. Clearview made a tender
offer, which expired on September 17, 1998, to repurchase the Company's 10 7/8%
Senior Notes. No holder elected to tender their Notes. The change in control
provision under the Notes continues to be operational.
F-11
142
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL INFORMATION--(CONTINUED)
In January 1998, the Company entered into an agreement providing for the
lease of a theater in Millburn, N.J. with the option to purchase certain assets
of the theater for $1.15 million in cash. The initial lease period was for three
months, with an option to extend for an additional three months, at $9,000 per
month, which the Company exercised. In August 1998, the Company exercised its
option to purchase the theater, using a portion of the proceeds from the Notes
offering.
In August 1998, the Company purchased substantially all the assets,
including equipment and leasehold interests of one theater located in Bala
Cynwyd, Pennsylvania from Constantine Sotolidis (the "Bala Cynwyd Acquisition"),
for $700,000 in cash, using a portion of the proceeds from the Notes offering.
F-12
143
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of Clearview Cinema Group, Inc.
In our opinion, the accompanying consolidated balance sheet and the related
consolidated statements of operations, of changes in stockholders' equity, and
of cash flows present fairly, in all material respects, the financial position
of Clearview Cinema Group, Inc. and its subsidiaries (the "Company") at December
31, 1997, and the results of their operations and their cash flows for the year
in conformity with generally accepted accounting principles. These financial
statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audit. We conducted our audit of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audit provides a reasonable basis for the opinion expressed
above.
Price Waterhouse LLP
New York, New York
March 19, 1998
F-13
144
INDEPENDENT AUDITORS' REPORT
Board of Directors
Clearview Cinema Group, Inc.
We have audited the consolidated balance sheet of Clearview Cinema Group,
Inc. and subsidiaries as of December 31, 1996 and the related consolidated
statements of operations, changes in stockholders' equity and cash flows for
each of the two years in the period ended December 31, 1996. These consolidated
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the consolidated financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the consolidated financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Clearview
Cinema Group, Inc. and subsidiaries at December 31, 1996 and the results of
their operations and their cash flows for each of the two years in the period
ended December 31, 1996, in conformity with generally accepted accounting
principles.
WISS & COMPANY, LLP
Woodbridge, New Jersey
February 10, 1997 (except as to
the stock split described in Note 7
and as to Note 12, for which the dates
are August 7, 1997 and February 3, 1998)
F-14
145
CLEARVIEW CINEMA GROUP, INC.
CONSOLIDATED BALANCE SHEET
DECEMBER 31, 1996 AND 1997
- --------------------------------------------------------------------------------
DECEMBER 31,
--------------------------
1996 1997
----------- -----------
ASSETS
Current assets
Cash and cash equivalents................................. $ 751,345 $ 1,647,176
Inventories............................................... 45,102 116,655
Other current assets...................................... 34,866 341,273
----------- -----------
Total current assets.............................. 831,313 2,105,104
Property, equipment and leaseholds, net..................... 11,412,217 34,488,714
Intangible assets, net...................................... 2,711,518 19,931,555
Other non-current assets.................................... 805,496 827,019
----------- -----------
$15,760,544 $57,352,392
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Current maturities of long-term debt...................... $ 835,650 $ 2,876,607
Current maturities of subordinated notes payable.......... 479,986
Accounts payable and accrued expenses..................... 1,226,502 4,562,633
----------- -----------
Total current liabilities......................... 2,542,138 7,439,240
Long-term debt, less current maturities..................... 7,742,611 32,234,955
Subordinated notes payable, less current maturities......... 1,193,882 6,000,000
Commitments and contingencies (Note 10)
Class A redeemable preferred stock at redemption price...... 2,132,294
Class B redeemable preferred stock.......................... 1,350,000
Redeemable common stock at redemption price................. 357,305
Stockholders' equity
Undesignated preferred stock 2,498,697 and 2,478,697
shares authorized, respectively
Class A preferred stock, par value $.01, 1,303 shares
authorized; 779 shares issued and outstanding.......... 8 8
Common stock, par value $.01, 10,000,000 shares
authorized; 832,800 and 2,213,097 shares issued and
outstanding, respectively.............................. 8,328 22,131
Additional paid-in-capital................................ 4,827,096 12,214,515
Accumulated deficit....................................... (553,519) (1,908,457)
Less: Redemption price of redeemable stock................ (2,489,599)
----------- -----------
Total stockholders' equity........................ 1,792,314 10,328,197
----------- -----------
$15,760,544 $57,352,392
=========== ===========
See accompanying notes to consolidated financial statements.
F-15
146
CLEARVIEW CINEMA GROUP, INC.
CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
- --------------------------------------------------------------------------------
1995 1996 1997
---------- ---------- -----------
Theater revenues
Box office.......................................... $1,759,131 $6,195,399 $12,926,134
Concession.......................................... 554,671 1,861,155 3,914,416
Other............................................... 31,895 141,420 421,427
---------- ---------- -----------
2,345,697 8,197,974 17,261,977
---------- ---------- -----------
Operating expenses
Film rental and booking fees........................ 823,791 3,022,377 6,168,380
Cost of concession sales............................ 99,261 279,549 634,395
Theater operating expenses.......................... 1,078,370 3,297,825 6,590,703
General and administrative expenses................. 375,262 589,822 1,130,855
Depreciation and amortization....................... 99,632 635,007 2,051,163
---------- ---------- -----------
2,476,316 7,824,580 16,575,496
---------- ---------- -----------
Operating income (loss)............................. (130,619) 373,394 686,481
Interest expense, net................................. 85,697 591,722 2,015,419
---------- ---------- -----------
Net loss............................................ $ (216,316) $ (218,328) $(1,328,938)
========== ========== ===========
Basic and diluted loss per share...................... $ (.36) $ (.29) $ (1.03)
========== ========== ===========
See accompanying notes to consolidated financial statements.
F-16
147
CLEARVIEW CINEMA GROUP, INC.
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
- --------------------------------------------------------------------------------
CLASS A
PREFERRED STOCK COMMON STOCK ADDITIONAL
--------------- ------------------- PAID-IN ACCUMULATED
SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT TOTAL
------ ------ --------- ------- ----------- ------------ -----------
Balance, December 31, 1994...... 600,000 $ 6,000 $ 765,200 $ (78,875) $ 692,325
Dividends paid................ (30,000) (30,000)
Issuance of warrants in
connection with subordinated
debt........................ 19,610 19,610
Net loss...................... (216,316) (216,316)
--- -- --------- ------- ----------- ------------ -----------
Balance, December 31, 1995...... 600,000 6,000 784,810 (325,191) 465,619
Proceeds from sale of
preferred stock, net of
related costs of $154,911... 779 $8 2,345,081 2,345,089
Dividends paid................ (10,000) (10,000)
Issuance of common stock
For cash.................... 12,600 126 69,874 70,000
Upon conversion of debt..... 12,000 120 79,880 80,000
For assets acquired......... 208,200 2,082 1,107,918 1,110,000
Issuance of warrants in
connection with
Subordinated debt........... 23,532 23,532
Bank financing.............. 416,001 416,001
Net loss...................... (218,328) (218,328)
--- -- --------- ------- ----------- ------------ -----------
Balance, December 31, 1996...... 779 8 832,800 8,328 4,827,096 (553,519) 4,281,913
Repurchase of warrants held by
lender...................... (1,000,000) (1,000,000)
Sale of underwriter
warrants.................... 1,000 1,000
Issuance of common stock
At initial public offering,
net of costs.............. 1,150,000 11,500 7,055,597 7,067,097
Upon termination of
preferred stock redemption
right..................... 60,000 600 25,400 (26,000)
In exchange for warrants
surrendered............... 66,000 660 103,340 104,000
In exchange for assets
acquired.................. 104,297 1,043 1,202,082 1,203,125
Net loss...................... (1,328,938) (1,328,938)
--- -- --------- ------- ----------- ------------ -----------
Balance, December 31, 1997...... 779 $8 2,213,097 $22,131 $12,214,515 $(1,908,457) $10,328,197
=== == ========= ======= =========== ============ ===========
See accompanying notes to consolidated financial statements.
F-17
148
CLEARVIEW CINEMA GROUP, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
- --------------------------------------------------------------------------------
1995 1996 1997
----------- ----------- -----------
Cash flows from operating activities
Net loss............................................. $ (216,316) $ (218,328) $(1,328,938)
Adjustments to reconcile net loss to net cash
provided by operating activities
Depreciation and amortization of property,
equipment and leaseholds........................ 95,445 526,182 1,675,856
Amortization of intangible assets................. 4,187 108,825 375,307
Amortization of debt discount and debt issuance
costs........................................... 5,320 42,715 281,190
Interest expense recognized upon surrender of
warrants........................................ 104,000
Changes in operating assets and liabilities
Inventories..................................... (4,938) (28,455) (71,553)
Other current assets............................ (62,014) 32,954 (306,407)
Other non-current assets........................ (9,600) (48,063) (131,382)
Accounts payable and accrued expenses........... 306,736 731,232 3,336,131
----------- ----------- -----------
Net cash provided by operating activities.... 118,820 1,147,062 3,934,204
----------- ----------- -----------
Cash flows from investing activities
Purchase of property, equipment and leaseholds....... (630,675) (317,946) (3,486,123)
Acquisitions of theaters............................. (6,499,000) (29,875,000)
Acquisition costs and other.......................... (608,315) (477,906) (285,499)
----------- ----------- -----------
Net cash used in investing activities........ (1,238,990) (7,294,852) (33,646,622)
----------- ----------- -----------
Cash flows from financing activities
Proceeds from issuance of long-term debt............. 400,000 4,317,228 30,386,108
Payments on long-term debt........................... (17,448) (136,543) (4,995,054)
Proceeds from issuance of subordinated notes
payable........................................... 580,000 600,000
Payments on subordinated notes payable............... (1,100,000)
Debt issuance costs.................................. (342,842) (750,902)
Proceeds from issuance of common stock upon initial
public offering................................... 9,200,000
Initial public offering costs........................ (2,132,903)
Proceeds from issuance of common stock............... 70,000
Proceeds from issuance of preferred stock............ 2,500,000
Preferred stock issuance costs....................... (154,911)
Dividends paid....................................... (30,000) (10,000)
Proceeds from issuance of underwriter warrants....... 1,000
Payments on option................................... (80,000) (120,000)
----------- ----------- -----------
Net cash provided by financing activities.... 852,552 6,722,932 30,608,249
----------- ----------- -----------
Net change in cash and cash equivalents................ (267,618) 575,142 895,831
Cash and cash equivalents, beginning of year........... 443,821 176,203 751,345
----------- ----------- -----------
Cash and cash equivalents, end of year................. $ 176,203 $ 751,345 $ 1,647,176
=========== =========== ===========
See accompanying notes to consolidated financial statements.
F-18
149
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
NOTE 1--NATURE OF THE BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation--The consolidated financial statements include
the accounts of Clearview Cinema Group, Inc. ("Clearview") and its wholly-owned
subsidiaries (collectively referred to as the "Company"). All significant
intercompany balances and transactions have been eliminated in consolidation.
Nature of the Business--The Company was incorporated November 23, 1994 and
is a regional motion picture exhibitor that acquires and operates in-town
multiplex theaters primarily located in affluent suburban communities in the New
York/New Jersey metropolitan area. As of December 31, 1997, the Company's 31
theaters with 148 screens show a mix of first-run commercial, art and
family-oriented films. The Company licenses films from distributors on a
film-by-film and theater-by-theater basis. The Company's business is seasonal
with a substantial portion of its revenue and operating income being derived
during the summer months (June through August) and the holiday season (November
and December).
Use of Estimates--The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results, as determined at a later date,
could differ from those estimates.
Film rental costs owed to distributors are estimated as a percentage of the
film's box office receipts and the length of a film's run and are ultimately
settled with distributors within a period approximating three months.
Revenue Recognition--The Company recognizes revenues from box office
admissions and concession sales at the time of sale.
Cash Equivalents--Cash equivalents include commercial paper investments
purchased with original maturities of three months or less.
Inventories--Inventories consist of concession products and are stated at
the lower of cost (first-in, first-out method) or market.
Property, Equipment and Leaseholds--Property, equipment and leaseholds are
stated at cost less accumulated depreciation and amortization. Buildings and
improvements, furniture and equipment are depreciated using the straight line
method over the estimated useful lives of the assets as follows: buildings and
improvements--40 years; furniture and equipment--5 to 7 years. Leasehold
interests represent acquired rights to operate theatres under previously
existing operating leases. The fair value assigned to these leasehold interests
and lease improvements are capitalized and amortized using the straight-line
method over the shorter of the term of the lease or the estimated useful life of
the assets.
In 1996, the Company adopted Statement of Financial Accounting Standards
121, Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to Be Disposed Of ("SFAS 121"). SFAS 121 requires that long-lived assets
and certain identifiable intangibles to be held and used by the Company be
reviewed for impairment whenever there is an indication that the carrying amount
of the asset may not be recoverable. Recoverability of these assets is
determined by comparing the forecasted undiscounted net cash flows of the
operation to which the assets relate, to the carrying amount, including
associated intangible assets, of such operation. The adoption of SFAS 121 did
not have a significant effect on the consolidated financial position or results
of operations.
Intangible Assets--Intangible assets consist of cost in excess of the
tangible and identifiable intangible assets of the theaters acquired (goodwill),
debt issuance costs, covenants not to compete, and organization costs. Costs are
amortized on a straight line basis over the following lives: goodwill--15 years,
covenants not to compete--3 to 5 years, organization costs--5 years. The Company
evaluates the recoverability of goodwill on an ongoing
F-19
150
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
NOTE 1--NATURE OF THE BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING
POLICIES--(CONTINUED)
basis in light of changes in any business conditions, events or circumstances
that may indicate the potential impairment of intangibles. Debt issuance costs
are amortized as interest expense over the term of the related debt.
Stock-Based Compensation--The Company has elected to follow Accounting
Principles Board Opinion No. 25, Accounting for Stock Issued to Employees ("APB
25") and related interpretations in accounting for stock-based compensation. The
Company has adopted the disclosure-only provisions of Statement of Financial
Accounting Standards No. 123, Accounting for Stock-Based Compensation ("SFAS
123").
Income Taxes--Deferred tax assets and liabilities are computed annually for
temporary differences between the financial statement and tax bases of assets
and liabilities that will result in taxable or deductible amounts in the future
based on enacted tax laws and rates applicable to the periods in which the
temporary differences are expected to affect taxable income. Valuation
allowances are established when necessary to reduce deferred tax assets to the
amounts expected to be realized.
Net Loss Per Share--In February 1997, the Financial Accounting Standards
Board issued Statement of Financial Accounting Standards 128, Earnings Per Share
("SFAS 128") which is effective for financial statements for both interim and
annual periods ending after December 15, 1997. The Company adopted SFAS 128 in
the fourth quarter of 1997. SFAS 128 replaces the presentation of primary and
fully diluted earnings per share with basic and diluted earnings per share.
Basic earnings per share is calculated based on the weighted average number of
common shares outstanding during the period and excludes all dilution. Diluted
earnings per share is calculated by using the weighted average number of common
shares outstanding, while also giving effect to all dilutive potential common
shares that were outstanding during the period. Prior period amounts have been
restated to conform to the requirements of SFAS 128.
Disclosure of Fair Value of Financial Instruments--The carrying amounts
reported for cash and cash equivalents and accounts payable and accrued expenses
approximate fair value due to the short maturities of these assets and
liabilities. The fair value of the long term debt, subordinated notes payable
and Class B redeemable preferred stock are estimated based on discounted future
cash flows using rates currently available for debt and equity instruments with
similar terms. At December 31, 1997, the fair values approximate carrying
values.
NOTE 2--THEATER ACQUISITIONS
During 1997, the Company acquired a total of fourteen theaters and 79
screens located in New Jersey and New York. The acquisitions have been accounted
for under the purchase method of accounting. Under the purchase method of
accounting, the purchase price for each transaction has been allocated based on
the estimated fair value of identifiable tangible and intangible assets
(principally property, equipment and leasehold interest) of the respective
theaters with the excess purchase price, together with acquisition costs
approximating $285,000 being allocated to goodwill. The results of operations of
the acquired theaters are included in the accompanying consolidated financial
statements from the respective acquisition dates.
UA Acquisition--In September 1997 the Company acquired substantially all
the assets, including land, building, leasehold interests, equipment and various
operating contracts of five theaters from United Artists Theater Circuit, Inc.
(the "UA Acquisition") for a total purchase price of $8.65 million in cash from
proceeds of the initial public offering (Note 7) and borrowings under the Credit
Facility (Note 6). Leasehold interests
F-20
151
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
NOTE 2--THEATER ACQUISITIONS--(CONTINUED)
acquired are to be amortized over the related theater leases which have
remaining lease terms through December 31, 2019. The purchase price has been
allocated as follows:
Land........................................................ $1,527,000
Buildings................................................... 3,665,000
Leasehold interests......................................... 2,641,000
Equipment................................................... 695,000
Goodwill.................................................... 122,000
----------
$8,650,000
==========
Nelson Ferman Acquisition--In November 1997 the Company acquired
substantially all the assets, including leasehold interests, equipment and
various operating contracts of two theaters from F&N Cinema, Inc. (the "Nelson
Ferman Acquisition") for a total purchase price of $18.5 million. The Company
paid $12 million in cash from borrowings under the Credit Facility, issued $6
million in subordinated notes payable (Note 6) and issued 41,797 shares of
common stock with an aggregate market value of $500,000 based on the closing
price of the Company's stock on the ten days preceding the acquisition.
Leasehold interests acquired are to be amortized over the related theater leases
which have remaining lease terms through December 31, 2016. The purchase price
has been allocated as follows:
Leasehold interests......................................... $ 6,500,000
Equipment................................................... 1,270,000
Non-compete................................................. 10,000
Goodwill.................................................... 10,720,000
-----------
$18,500,000
===========
CJM Acquisition--In December 1997 the Company executed four separate
agreements to acquire certain assets, including leasehold interests and
equipment of four theaters from CJM Enterprises (the "CJM Acquisition") for a
total purchase price of approximately $8.7 million. Pursuant to the agreements,
the Company paid $7.25 million in cash from borrowings under the Credit
Facility, issued 62,500 shares of common stock with an aggregate market value of
approximately $703,000 (based on the closing price of the Company's stock on the
date of acquisition) and agreed to issue either 750 shares of Class B redeemable
preferred stock (Note 7) by March 31, 1998 or pay $750,000 in cash in lieu of
stock if the Company consummated a private placement offering by such date. As
the private placement offering is not likely to occur by March 31, 1998, the 750
shares of Class B redeemable preferred stock will be issued and have been
reflected as such in the accompanying financial statements. The agreements also
provide for additional consideration of 750 additional shares of Class B
redeemable preferred stock valued at $750,000 to be paid to the seller if
another competing theater is not opened in the operating vicinity of the
purchased theaters within two years. However, such consideration is deemed to be
contingent and, as such, will only be recorded on December 12, 1999 if no
competing theater has opened. Leasehold interests acquired in the CJM
Acquisition are to be amortized over the related theater leases which have
remaining lease terms through November 30, 2017. The purchase price has been
allocated as follows:
Leasehold interests......................................... $1,503,000
Equipment................................................... 1,510,400
Non-compete................................................. 60,000
Goodwill.................................................... 5,629,725
----------
$8,703,125
==========
F-21
152
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
NOTE 2--THEATER ACQUISITIONS--(CONTINUED)
The shares of common stock issued in the Nelson Ferman Acquisition and the
CJM Acquisition are unregistered shares and are subject to Voting Trust
Agreements whereby the President and Chief Executive Officer has the right to
vote the shares until the shares are sold or registered.
The Company acquired three additional theaters during 1997 in two separate
transactions for $1,975,000 in cash from borrowings under the Credit Facility
and working capital.
The following unaudited pro forma consolidated results of operations for
the years ended December 31, 1996 and 1997 assumes the UA Acquisition, the
Nelson Ferman Acquisition and the CJM Acquisition, along with the Company's 1996
acquisitions, had occurred on January 1, 1996 giving effect to purchase
accounting adjustments and financing. The pro forma results have been prepared
for informational purposes only and do not reflect any benefit from economies
which might be achieved from combined operations. The pro forma results do not
represent results which would have occurred if the acquisition had taken place
on the basis assumed above, nor are they indicative of the results of future
combined operations.
YEAR ENDED DECEMBER 31,
--------------------------
1996 1997
(UNAUDITED) (UNAUDITED)
----------- -----------
Revenues.......................................... $28,960,499 $32,105,444
Net loss.......................................... (3,692,950) (3,692,996)
Basic and diluted loss per share.................. $ (1.68) $ (1.67)
During 1996, the Company acquired the leaseholds of seven theaters and two
theaters with the underlying real estate, all located in New Jersey and New York
(the "1996 Acquisitions"). The 1996 Acquisitions have also been accounted for
under the purchase method of accounting. The results of operations of the
acquired theaters are included in the accompanying consolidated financial
statements from their respective acquisition dates. The 1996 Acquisitions are
described as follows:
May 1996--The Company purchased the leaseholds of three New Jersey theaters
and one New York theater in May 1996 for $5,000,000 in cash and the issuance of
208,200 shares of the Company's Common Stock. The total cost was allocated as
follows: $835,000--theater equipment, $5,075,000--leasehold interests and
$200,000--covenant not to compete.
July 1996--The Company purchased the leaseholds of two New York theaters in
July 1996. The total cost of $1,499,000 was paid in cash and was allocated as
follows: $1,489,000--leasehold interests and $10,000--covenant not to compete.
December 1996--The Company purchased two theaters and the underlying real
estate and the leasehold of another theater in New Jersey in December 1996. The
total cost of $5,000,000 was paid with a $4,400,000 secured note and $600,000
subordinated note. The purchase price was allocated as follows: $400,000--land,
$1,300,000--buildings and leasehold improvements, $832,000--theater equipment,
$848,000--leasehold interests and $1,620,000--goodwill.
The following unaudited pro forma results of operations for the years ended
December 31, 1995 and 1996 assume the 1996 Acquisitions occurred as of January
1, 1995 after giving effect to certain adjustments, including depreciation and
increased interest expense on acquisition debt. The pro forma results have been
prepared for
F-22
153
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
NOTE 2--THEATER ACQUISITIONS--(CONTINUED)
comparative purposes only and do not purport to indicate the results of
operations which would actually have occurred had the combinations been in
effect on the dates indicated, or which may occur in the future.
YEAR ENDED
DECEMBER 31,
--------------------------
1995 1996
----------- -----------
(UNAUDITED)
Revenues.......................................... $10,754,531 $13,182,481
Net loss.......................................... $(1,658,987) $(1,268,766)
Basic and diluted loss per common share........... $ (2.05) $ (1.55)
NOTE 3--PROPERTY, EQUIPMENT AND LEASEHOLDS
Property, equipment and leaseholds are summarized as follows:
DECEMBER 31,
--------------------------
1996 1997
----------- -----------
Land.............................................. $ 400,000 $ 1,927,848
Buildings and improvements........................ 1,302,098 5,491,183
Leasehold interest and improvements............... 8,095,097 21,704,639
Furniture and equipment........................... 2,347,117 7,772,995
----------- -----------
12,144,312 36,896,665
Less: Accumulated depreciation and amortization... 732,095 2,407,951
----------- -----------
$11,412,217 $34,488,714
=========== ===========
NOTE 4--INTANGIBLE ASSETS
Intangible assets are summarized as follows:
DECEMBER 31,
------------------------
1996 1997
---------- -----------
Goodwill............................................. $2,151,437 $19,004,450
Debt issuance costs.................................. 378,264 1,129,166
Covenants not to compete............................. 210,000 305,000
Organization costs................................... 36,362 42,234
---------- -----------
2,776,063 20,480,850
Less: Accumulated amortization....................... 64,545 549,295
---------- -----------
$2,711,518 $19,931,555
========== ===========
F-23
154
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
NOTE 5--ACCOUNTS PAYABLE AND ACCRUED EXPENSES
Accounts payable and accrued expenses are summarized as follows:
DECEMBER 31,
------------------------
1996 1997
---------- ----------
Film rental and booking fees payable................ $ 699,444 $1,613,834
Accounts payable.................................... 243,278 1,936,552
Accrued interest.................................... 55,351 369,874
Accrued payroll..................................... 68,632 254,538
Sales taxes payable................................. 49,228 100,688
Other accrued expenses.............................. 110,569 287,147
---------- ----------
$1,226,502 $4,562,633
========== ==========
NOTE 6--LONG-TERM DEBT AND SUBORDINATED NOTES PAYABLE
Long-term debt consists of the following:
DECEMBER 31,
------------------------
DESCRIPTION INTEREST RATE 1996 1997
----------- ------------- ---- ----
Term notes A & B under Credit Facility,
interest payable in monthly
installments, principal due in quarterly
installments through September 2002, net 10% at December 31, 1997
of unamortized debt discount of $384,976 (floating rate of 1.5%
and $242,729, respectively.............. above prime) $3,790,024 $34,757,271
Notes payable--Seller, refinanced as
described below......................... 4,400,000
Note payable to bank, in monthly
installments of principal and interest
of $5,029, due October 2005............. 11 1/4% 337,009 313,096
Other..................................... 51,228 41,195
---------- -----------
8,578,261 35,111,562
Less: Current maturities.................. 835,650 2,876,607
---------- -----------
$7,742,611 $32,234,955
========== ===========
Credit Facility--In September 1997 the Company entered into an amended and
restated credit agreement with Provident Bank (the "Credit Facility") consisting
of a revolving credit line of $1.0 million, Term Note A of $12 million and Term
Note B of $17 million, the proceeds of which were used to refinance existing
term loans with the same bank of $10.4 million and finance acquisitions (Note
2). In December 1997 the Company further increased its Credit Facility to $36
million by increasing the availability under Term Note B to $23 million through
the participation of an additional bank, the proceeds of which were used to
finance acquisitions (Note 2). In February 1998, the Company increased its
Credit Facility by obtaining a $5.8 million Term Note C (Note 14).
The revolving credit line of $1 million bears interest at prime +1.5%,
terminates on September, 2002 and can be used for refinancing existing debt,
financing working capital, financing acquisitions and for general corporate
purposes. There were no amounts outstanding on the revolving credit line at
December 31, 1997.
F-24
155
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
NOTE 6--LONG-TERM DEBT AND SUBORDINATED NOTES PAYABLE--(CONTINUED)
The Credit Facility is collateralized by substantially all of the assets of
the Company and contains various restrictive covenants, including maintenance of
specified levels of net worth and debt coverage ratios. All such covenants were
satisfied or waived by the bank at December 31, 1997 and 1996. The Credit
Facility also restricts certain payments by the Company including the payment of
dividends, retirement of equity securities or retirement of any subordinated
debt through premium payments.
In accordance with the provisions of the Credit Facility, the Company
maintains a $2.5 million key-man life insurance policy on its President and
Chief Executive Officer.
Refinancing--In January 1997, seller-financing of $4,400,000 was paid with
$100,000 from the Company's operating cash and the proceeds from a $4,300,000
bank term note, issued under the Company's credit agreement with its principal
lender. Accordingly, the note payable at December 31, 1996 was classified in
accordance with the terms of this new bank term note.
Subordinated Notes--In November 1997, the Company issued $6 million in
subordinated notes payable to the seller in connection with the Nelson Ferman
Acquisition (Note 2). The notes bear interest at 10 1/2% which is payable
monthly. The principal and any unpaid interest on one note in the amount of $2
million is due on the earlier of the consummation of a private debt offering or
January 1999. The principal on the $4 million note is due the earlier of the
consummation of a private debt offering or November 2002.
During 1995 and 1996, the Company sold 8% subordinated notes totalling
$1,100,000 to certain related parties. In October 1997, the Company repaid
$500,000 of these subordinated notes payable and in December 1997, the Company
converted the remaining $600,000 of subordinated notes payable into 600 shares
of Class B redeemable preferred stock valued at $600,000 (Note 7).
The Company had a $600,000 12% subordinated note payable which was issued
in connection with its acquisition of certain theaters in December 1996. Such
note was repaid in August 1997 upon consummation of the Company's initial public
offering.
Long-term debt and subordinated notes payable at December 31, 1997 mature
as follows:
YEAR ENDING DECEMBER 31,
- ------------------------
1998........................................................ $ 2,876,607
1999........................................................ 8,984,318
2000........................................................ 6,989,036
2001........................................................ 7,024,619
2002........................................................ 15,091,387
2003 and thereafter......................................... 145,595
-----------
$41,111,562
===========
NOTE 7--STOCKHOLDERS' EQUITY
Stock Split--In May 1997, the Company's Board of Directors approved a 600
to 1 stock split which has been retroactively reflected in the accompanying
consolidated financial statements.
Initial Public Offering--In August 1997, the Company consummated an initial
public offering (the "Offering") through the sale of 1,150,000 shares of its
common stock, $.01 par value for total proceeds of approximately $7.1 million,
net of offering costs of approximately $2.1 million.
F-25
156
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
NOTE 7--STOCKHOLDERS' EQUITY--(CONTINUED)
Preferred Stock--The Company's Certificate of Incorporation authorizes the
issuance of up to 2,500,000 shares of preferred stock. The Board of Directors is
authorized to issue shares of preferred stock from time to time in one or more
series and to establish and designate any such series and to determine the
number of shares and the relative conversion rights, voting rights, terms of
redemption and liquidation.
Class A Preferred Stock and Warrant--In May and July 1996, the Company
issued 779 shares of Class A preferred stock and warrants in exchange for
$2,500,000. Each share of Class A preferred stock is convertible at any time at
the option of the holders into 600 shares of common stock. Upon the occurrence
of certain events, the shares of Class A preferred stock will automatically
convert into shares of common stock. The warrants, which entitled the holder to
purchase up to 471 shares of Class A preferred stock were exchanged at the time
of the offering for a new warrant exercisable for 282,600 shares of common
stock.
The warrant is not exercisable until June 1, 2001 unless, prior to that
date, the Company sells all or substantially all of its assets, liquidates,
dissolves or merges with another corporation in a transaction which results in a
change in control of the Company's voting stock. The number of shares of common
stock for which the warrant is exercisable is subject to reduction, including
not being exercisable into any shares, based on a formula and the fair value of
the Company's stock as defined, upon the occurrence of certain events.
Class B Redeemable Preferred Stock--During 1997 the Company authorized
20,000 shares and issued 1,350 shares of Class B non-voting, 10 1/2% cumulative
redeemable preferred stock with a liquidation value of $1,000 per share. The
holders of the Class B redeemable preferred stock are entitled to receive
preferential dividends, when and as declared by the Board of Directors. So long
as any shares of Class B redeemable preferred stock are outstanding, unless all
dividends on the Class B redeemable preferred stock have been paid, no dividend
or other distribution may be paid or made on the common stock, Class A preferred
stock or any other capital stock of the Company ranking junior as to dividends
to the Class B redeemable preferred stock. In the event of any sale of all or
substantially all of the assets of the Company or any liquidation, dissolution
or winding up of the Company, the holders of the Class B redeemable preferred
stock will be entitled to receive an amount per share equal to a liquidation
value ($1,000) plus all unpaid dividends per share on the Class B redeemable
preferred stock, prior to any distribution to holders of the common stock, Class
A preferred stock or any other capital stock of the Company ranking junior upon
liquidation or dissolution. The holder of Class B redeemable preferred stock can
redeem upon the earlier to occur of dissolution of the Company, within ten
business days after the date of closing of a private placement offering with
aggregate proceeds of $70 million, or five years after the date of issuance of
such shares. The Company can redeem these shares at any time.
Warrants--In consideration of services provided at the time of the
Offering, the Company issued to the underwriter of the Offering, for a nominal
amount of $1,000, warrants to purchase 100,000 shares of common stock with an
initial exercise price of $9.60 per share. As provided in the warrant agreement,
the exercise price and the number of shares that may be purchased upon the
exercise of the warrants are subject to modification and adjustment upon the
occurrence of certain events, as defined in the warrant agreement. The warrants
are exercisable for a four year period commencing on August 12, 1998. The fair
value of services provided of approximately $200,000 has been determined based
on the fair value of the warrants using an option pricing model in accordance
with SFAS 123 and has no impact on stockholders' equity as the services provided
are considered additional offering costs.
During 1995 and 1996, the Company issued 200 warrants, convertible into
120,000 shares of common stock, together with the issuance of certain
subordinated debt. Concurrent with the consummation of the Offering, holders of
warrants to purchase 97,500 shares of common stock (at exercise prices ranging
from $3.33 to $6.67 per share) exchanged such warrants for 66,000 shares of
common stock and also amended the terms of
F-26
157
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
NOTE 7--STOCKHOLDERS' EQUITY--(CONTINUED)
certain subordinated notes payable. The fair value of the common stock issued,
less the value of the warrants surrendered, was recorded as interest expense of
$104,000 in the accompanying financial statements. The remaining warrants were
canceled upon retirement of the subordinated debt on December 12, 1997 (Note 6)
in accordance with the terms of the debt and warrant agreement.
In connection with the bank financing as described in Note 6 and pursuant
to a May 1996 warrant agreement (amended in December 1996), the Company issued
seven-year warrants in May and December 1996 to its principal lender to purchase
43,800 and 50,400 shares of the Company's common stock, respectively, at an
exercise price of $.01 per share. In June 1997, the Company repurchased those
warrants for $1 million which approximated the put price at that time. As a
result, the repurchase has been recorded as a charge to additional
paid-in-capital.
Terminated Redemption Rights--A certain common stockholder had the right to
sell its shares of common stock at a redemption price based upon a formula. If
such stockholder did not exercise that right, the Company had the right to
purchase those shares of common stock from such stockholder at a price based
upon the same formula. Such stockholder and the Company terminated those rights
upon consummation of the Offering.
The holder of the outstanding shares of the Company's Class A preferred
stock, $.01 par value had the right to sell to the Company all of those shares
or the shares of common stock into which those shares had been converted at a
redemption price determined in accordance with a specified formula. Such holder
terminated that right upon consummation of the Offering in exchange for the
issuance of 60,000 shares of common stock. The fair value of the 60,000 shares
of common stock issued, less the estimated value of the redemption right
terminated, was recorded as a preferred stock dividend of $26,000 during 1997.
As of December 31, 1996, the Company reported the Class A redeemable
preferred stock and the redeemable common stock at the current redemption value
separately between liabilities and stockholders' equity, since redemption was
outside of the Company's control. A corresponding reduction was made to
stockholders' equity, as the equivalent of treasury stock. The per share
redemption value of the Class A redeemable preferred stock was based on the
greater of gross revenues (as defined) or six times theater operating income
before general and administrative expenses, interest and taxes for the preceding
twelve months divided by the number of shares of common stock issued and, as if
converted or exercised, all convertible securities, options, warrants and
similar instruments. The redemption value of the common stock was based on book
value per share computed on a fully diluted basis.
NOTE 8--INCOME TAXES
Deferred income taxes reflect the tax consequences on future years of
differences between the bases of assets and liabilities for financial reporting
purposes and income tax purposes. A valuation allowance is provided when it is
more likely than not that some portion of the deferred tax assets will not be
realized. The Company has determined, based on its recurring net losses since
inception, that a full valuation allowance of $85,000, $172,000 and $621,000 is
appropriate at December 31, 1995, 1996 and 1997.
F-27
158
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
NOTE 8--INCOME TAXES--(CONTINUED)
The income tax effect of temporary differences that give rise to the
deferred tax assets and deferred tax liabilities at December 31, 1997 are as
follows:
Deferred tax assets
Net operating loss carryforwards.......................... $ 678,000
Other..................................................... 46,000
---------
Gross deferred tax assets................................... 724,000
Deferred tax liabilities
Property, equipment and leaseholds........................ (103,000)
---------
621,000
Valuation allowance......................................... (621,000)
---------
Net deferred tax assets................................... $
=========
A reconciliation between the statutory federal income tax rate of 34% and
the effective rate of income tax expense for the years ended December 31, 1995,
1996 and 1997 follows:
YEAR ENDED DECEMBER 31,
---------------------------------
1995 1996 1997
-------- -------- ---------
Income tax benefit at federal statutory rate....... $(72,000) $(74,000) $(452,000)
State income tax benefit, net of federal tax
effect........................................... (13,000) (13,000) (79,000)
Increase in net operating loss carryforwards....... 85,000 87,000 531,000
-------- -------- ---------
Provision (benefit) for income taxes............... $ $ $
======== ======== =========
The Company has available at December 31, 1997 net operating loss
carryforwards totaling approximately $1,698,000 that may be applied against
future consolidated federal and state taxable income of the respective
subsidiary companies. The loss carryforwards will expire through 2012.
Certain losses are subject to limitation by the provisions of Section 382
of the Internal Revenue Code due to a more than 50% change in ownership which
occurred upon the consummation of the Company's Offering.
NOTE 9--STOCK BASED COMPENSATION
In August 1997, the Company adopted the Stock Incentive Plan (the "Plan")
which provides for the granting of awards to purchase shares of the Company's
common stock to officers, directors and key employees and non-employees at the
discretion of a committee of the Board of Directors. Awards granted under the
Plan may be in the form of Non-Qualified Stock Options, Incentive Stock Options,
Stock Appreciation Rights, Restricted Shares and Performance Awards. The
exercise price of each share of stock awarded under the Plan shall be determined
by the committee; provided however, that the exercise price shall in all cases
be equal to or greater than the quoted market price of the Company's common
stock on the date of grant. At December 31, 1997, 200,000 shares of common stock
are reserved for issuance under the Plan. Awards granted under the Plan become
fully vested upon a change in control of the Company.
During 1997, the Company granted 122,500 incentive stock options with
exercise prices ranging from $8 to $12 and with a weighted average exercise
price of $8.40 per share. No options became exercisable or were forfeited during
1997. The awards granted during 1997 terminate in 10 years and have a graded
vesting schedule that provides for 100% vesting in four years as follows: Year
1--10%, Year 2--35%, Year 3--65%, Year 4--100%.
F-28
159
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
NOTE 9--STOCK BASED COMPENSATION--(CONTINUED)
Pro forma information, as required by SFAS 123, has been determined as if
the Company had accounted for stock options awarded under the Plan under the
fair value method as defined by SFAS 123. The fair value of these options was
estimated at the date of grant using the Black Scholes option pricing model with
the following weighted-average assumptions: risk-free rate of 6.5%; expected
common stock market price volatility factor of 30%; and an average expected life
of the options of six years. The weighted average fair value of each option on
the date of grant using the option pricing model was $3.26. If fair value based
accounting in accordance with SFAS 123 had been used to measure stock based
compensation cost, the Company's consolidated net loss would have increased by
$40,000 or $0.03 per share for the year ended December 31, 1997. This pro forma
impact only takes into account options granted since January 1, 1997 and is
likely to increase in future years as additional options are granted and
amortized ratably over the vesting period.
NOTE 10--COMMITMENTS AND CONTINGENCIES
Theater Leases--A substantial portion of the Company's theaters and the
corporate office are operated under lease arrangements with initial lease terms
and renewal options. Future minimum rental payments for all non-cancellable
operating leases having initial or remaining lease terms in excess of one year
as of December 31, 1997 are:
YEAR ENDING DECEMBER 31,
- ------------------------
1998........................................................ $ 2,685,334
1999........................................................ 2,699,106
2000........................................................ 2,646,440
2001........................................................ 2,557,795
2002........................................................ 2,602,006
2003 and thereafter......................................... 17,837,239
-----------
$31,027,920
===========
Certain theaters operated by the company have operating leases that contain
escalating clauses. For these leases, the aggregate rent payments over the lease
term are recognized on a straight-line basis over the lease term. The
differences between the expense charged to operations and amounts payable under
such leases are recorded annually as deferred rent expense, which will
ultimately reverse over the lease term. In addition, leases require additional
amounts to be paid for common area maintenance and/or contingent rental payments
based on a percent of net revenues of the theater in excess of a predetermined
amount. Total rent expense for the years ended December 31, 1995, 1996 and 1997
was approximately $209,000, $802,000 and $1,287,000, respectively.
Acquisition Commitments--During September 1995, the Company entered into an
option agreement providing for the lease of three New York theater locations
with the option to purchase certain assets of the three theaters through
September 2000. In consideration of the option granted, the Company made an
initial $200,000 payment which was financed by the seller. Until exercise of the
option, the Company is required to make annual payments which are recorded as
interest expense in the accompanying financial statements. It is the Company's
intention to ultimately exercise this option.
In November 1997, the Company entered into an agreement to acquire a
theater upon completion of construction of such theater for a price of $1
million to be paid in common stock of the Company; provided however, that in no
event shall the common shares to be issued be greater than 90,909 or less than
76,923 shares. The closing date under this agreement will occur within ten
business days after receipt of a valid construction permit, but in no event
later than January 1999. Neither the Company nor the seller is obligated to
close on this agreement if a valid construction permit is not obtained by June
1998.
F-29
160
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
NOTE 10--COMMITMENTS AND CONTINGENCIES--(CONTINUED)
Employment Agreement--The Company is obligated through May 2003 to pay its
President and Chief Executive Officer an annual base salary of $120,000, plus an
additional amount based on gross revenue, provided that such total does not to
exceed $750,000.
NOTE 11--SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
1995 1996 1997
-------- ---------- ----------
Cash paid for interest.................................. $ 42,877 $ 623,656 $1,179,000
Non-cash investing and financing activities
Issuance of common stock as consideration for theaters
acquired........................................... 1,110,000 1,203,125
Issuance of subordinated notes payable as
consideration for theaters acquired................ 5,000,000 6,000,000
Issuance of Class B redeemable preferred stock as
consideration for theaters acquired................ 750,000
Conversion of subordinated notes payable into Class B
redeemable preferred stock......................... 600,000
Repurchase of warrants................................ 1,000,000
Common stock issued upon termination of preferred
stock redemption right............................. 26,000
Fair value of warrants issued in connection with
subordinated debt and bank financing............... 19,610 439,533
Conversion of subordinated note payable (related
party) into common stock........................... 80,000
Project acquisition costs in exchange for option
payable............................................ 200,000
NOTE 12--SUPPLEMENTAL DISCLOSURE OF LOSS PER SHARE
1995 1996 1997
--------- --------- -----------
Net Loss................................................ $(216,316) $(218,328) $(1,328,938)
Less: Preferred stock dividends......................... (26,000)
--------- --------- -----------
Loss available to common stockholders................... $(216,316) $(218,328) $(1,354,938)
========= ========= ===========
Weighted average shares outstanding..................... 600,000 744,038 1,312,865
========= ========= ===========
Basic and diluted loss per share........................ $ (.36) $ (0.29) $ (1.03)
========= ========= ===========
The Class A preferred stock and warrant, underwriter warrants and incentive
stock options outstanding are potentially convertible into 972,500 shares of
common stock and have not been included in the computation of diluted loss per
share as the effect would have been antidilutive. The Company's loss per share
for the years ended December 31, 1995 and 1996 have been restated in accordance
with SFAS 128, as described in Note 1.
NOTE 13--RELATED PARTY TRANSACTIONS
In June 1997 the Company entered into a consulting and confidentiality
agreement with a director and stockholder of the Company to assist the Company
in the identification of theater acquisition candidates and provide other
services as requested by the Company. The director/stockholder is also an
executive vice president of First New York Realty Co., Inc. ("First New York").
To the extent, if any, that the director/stockholder identifies any person who
is interested in leasing a site to the Company in his capacity as an employee of
First
F-30
161
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
NOTE 13--RELATED PARTY TRANSACTIONS--(CONTINUED)
New York and the Company determines to lease that site, First New York could be
entitled to a commission from that person and the director/stockholder would
then be entitled to a commission from First New York. During the years ended
December 31, 1995, 1996 and 1997 the Company incurred $0, $12,000 and $17,000,
respectively in consulting fees to the director/stockholder.
In May 1997 the Company renewed its agreement with an affiliated entity who
is a preferred stockholder and whose managing directors are directors of the
Company, to provide business strategy and financial and investment management
services for a fee equal to $60,000 per year. The Company incurred fees for such
services of $30,000 and $50,000 in 1996 and 1997, respectively. No such fees
were paid in 1995.
A director of the Company is an officer of the entity that served as the
underwriter for the Offering. The director was appointed to the Company's board
of directors subsequent to consummation of the Offering. Amounts paid to the
underwriter for services provided at the time of the Offering were $1,013,000.
NOTE 14--SUBSEQUENT EVENTS
In February 1998, the Company extended its existing Credit Facility through
the issuance of a Term Note C in the amount of $5.8 million to be used for
additional acquisitions. Interest is due quarterly at prime plus 1.5%. Principal
payments are to be paid quarterly commencing October 1, 1998 with final payment
due September 2002. The Company borrowed $3.8 million under Term Note C to fund
the acquisition of three theaters subsequent to December 31, 1997. The Company
continues to pursue the acquisition of additional theaters, the development of
new theaters and the addition of screens to existing theaters.
In March 1998, the Company adopted the Clearview Cinema Group 401(K) Plan
(the "401(K) Plan") that covers all employees of the Company who have reached
the age of 21 and have completed one year of service, as defined. The 401(K)
Plan provides for employee elective contributions up to 15% of annual
compensation, with matching contributions by the Company of 50% of the first 6%
of the employees' compensation contributed. Additionally, the Company, at its
discretion may make profit-sharing contributions to the 401(K) Plan. Employees
vest 100% in the Company's matching contributions and profit sharing
contributions after three years of service.
NOTE 15--SUBSEQUENT EVENT--MERGER TRANSACTION (UNAUDITED)
On August 13, 1998, the Company announced that it had entered into an
Agreement and Plan of Merger among Cablevision Systems Corporation
("Cablevision"), CCG Holdings Inc., a subsidiary of Cablevision, and the
Company, pursuant to which the Company would be acquired by Cablevision. Each
issued and outstanding share of common stock of the Company would be acquired at
$24.25 per share, payable in a combination of cash and Cablevision common stock
on the basis of 55% cash and 45% Cablevision common stock. The gross value of
the transaction is estimated at approximately $160 million, based on the
acquisition of approximately 3.3 million shares of the Company's common stock on
a fully diluted basis and the assumption of the $80 million of Notes outstanding
as of August 13, 1998.
The consummation of the transaction, expected to be completed in the fourth
quarter of 1998, is subject to the satisfaction of certain closing conditions
including, among others, receipt of certain governmental approvals and approval
of the transaction by the stockholders of the Company. Approximately 54.7% of
the voting stockholders of the Company have entered into agreements with
Cablevision pursuant to which such stockholders have agreed to vote their
securities in favor of the transaction.
F-31
162
CLEARVIEW CINEMA GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
NOTE 15--SUBSEQUENT EVENT--MERGER TRANSACTION (UNAUDITED)--(CONTINUED)
The acquisition of the Company by Cablevision would be considered a change
in control transaction which would trigger certain provisional rights as
stipulated in various security and debt agreements of the Company. Specifically,
a change in control would (a) entitle the holders of the Notes the right to
require the Company to repurchase all or any portion of the Notes at 101% of the
aggregate principal amount outstanding, (b) grant the lender under the New
Credit Facility the right to terminate the credit commitment and declare all
amounts outstanding immediately due and payable, (c) result in an adjustment of
the conversion price of the Class C Preferred Stock and also give the holders
the right to redeem the shares held, (d) result in all stock options outstanding
to purchase 284,500 shares of the Company's common stock to become fully
exercisable, and (e) result in the automatic conversion of the Class A Preferred
Stock into 467,400 shares of the Company's common stock. Clearview made a tender
offer, which expired on September 17, 1998, to repurchase the Company's 10 7/8%
Senior Notes. No holder elected to tender their Notes. The change in control
provision under the Notes continues to be operational.
F-32
163
INDEPENDENT AUDITORS' REPORT
Board of Directors
Clearview Cinema Group, Inc.
We have audited the combined balance sheet of the United Artist Theatre
Circuit, Inc. Theaters at Bronxville, Larchmont, Wayne, New City and Mamaroneck
(the "UA Theaters"), as of December 31, 1996 and the related combined statements
of income and divisional equity and cash flows for each of the two years in the
period ended December 31, 1996. These combined financial statements are the
responsibility of the management of United Artist Theatre Circuit, Inc. Our
responsibility is to express an opinion on these combined financial statements
based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the combined financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the combined financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the combined financial statements referred to above present
fairly, in all material respects, the financial position of the UA Theaters at
December 31, 1996 and the results of their operations and their cash flows for
each of the two years in the period ended December 31, 1996, in conformity with
generally accepted accounting principles.
As discussed in Note 1 to the combined financial statements, United Artist
Theatre Circuit, Inc. changed its method of accounting for impairment of
long-lived assets in accordance with SFAS 121 in 1996.
WISS & COMPANY, LLP
Woodbridge, New Jersey
June 4, 1997
F-33
164
UNITED ARTISTS THEATRES AT BRONXVILLE, LARCHMONT, WAYNE,
NEW CITY AND MAMARONECK
COMBINED BALANCE SHEETS
- --------------------------------------------------------------------------------
DECEMBER 31, MARCH 31,
1996 1997
------------ -----------
(UNAUDITED)
ASSETS
CURRENT ASSETS:
Cash...................................................... $ 61,716 $ 65,666
Inventories............................................... 22,122 22,930
Other current assets...................................... 19,366 43,799
---------- -----------
Total current assets................................... 103,204 132,395
---------- -----------
PROPERTY AND EQUIPMENT, LESS ACCUMULATED DEPRECIATION....... 4,846,814 4,827,793
---------- -----------
OTHER ASSETS:
Due from parent and affiliate............................. 2,955,667 3,247,520
Security deposits......................................... 2,000 2,000
---------- -----------
2,957,667 3,249,520
---------- -----------
$7,907,685 $ 8,209,708
========== ===========
LIABILITIES AND DIVISIONAL EQUITY
CURRENT LIABILITIES:
Accounts payable and accrued expenses..................... $ 731,595 $ 932,282
DIVISIONAL EQUITY........................................... 7,176,090 7,277,426
---------- -----------
$7,907,685 $ 8,209,708
========== ===========
See accompanying notes to combined financial statements.
F-34
165
UNITED ARTISTS THEATRES AT BRONXVILLE, LARCHMONT, WAYNE,
NEW CITY AND MAMARONECK
COMBINED STATEMENTS OF INCOME AND DIVISIONAL EQUITY
- --------------------------------------------------------------------------------
YEAR ENDED THREE MONTHS
DECEMBER 31, ENDED MARCH 31,
----------------------- -----------------------
1995 1996 1996 1997
---------- ---------- ---------- ----------
(UNAUDITED)
THEATER REVENUES:
Box office............................... $3,503,949 $3,578,346 $ 864,313 $ 961,187
Concession............................... 1,004,651 1,048,292 239,725 278,823
Other.................................... 147,248 174,334 35,051 39,238
---------- ---------- ---------- ----------
4,655,848 4,800,972 1,139,089 1,279,248
---------- ---------- ---------- ----------
OPERATING EXPENSES:
Film rental and booking fees............. 1,556,970 1,603,729 362,806 482,578
Cost of concession sales................. 171,003 176,031 42,005 43,294
Theater operating expenses............... 1,734,320 1,828,092 444,099 470,704
General and administrative............... 71,634 71,366 16,933 19,890
Depreciation and amortization............ 224,947 216,154 56,033 49,142
Impairment of long-lived assets.......... -- 224,908 -- --
---------- ---------- ---------- ----------
3,758,874 4,120,280 921,876 1,065,608
---------- ---------- ---------- ----------
OPERATING INCOME........................... 896,974 680,692 217,213 213,640
INTEREST EXPENSE........................... 588,577 444,534 111,000 112,304
---------- ---------- ---------- ----------
NET INCOME................................. 308,397 236,158 106,213 101,336
DIVISIONAL EQUITY:
Beginning of period...................... 6,631,535 6,939,932 6,939,932 7,176,090
---------- ---------- ---------- ----------
End of period............................ $6,939,932 $7,176,090 $7,046,145 $7,277,426
========== ========== ========== ==========
See accompanying notes to combined financial statements.
F-35
166
UNITED ARTISTS THEATRES AT BRONXVILLE, LARCHMONT, WAYNE,
NEW CITY AND MAMARONECK
COMBINED STATEMENTS OF CASH FLOWS
- --------------------------------------------------------------------------------
YEAR ENDED THREE MONTHS
DECEMBER 31, ENDED MARCH 31,
----------------------- ---------------------
1995 1996 1996 1997
--------- ----------- --------- ---------
(UNAUDITED)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income.................................. $ 308,397 $ 236,158 $ 106,213 $ 101,336
Adjustments to reconcile net income (loss)
to net cash flows from operating
activities:
Depreciation and amortization............ 224,947 216,154 56,033 49,142
Loss in impairment of long-lived asset... -- 224,908 -- --
Changes in operating assets and
liabilities:
Inventories............................ 299 (1,442) (1,073) (808)
Other current assets................... 471 19,510 14,586 (24,433)
Security deposits...................... -- (2,000) (2,000) --
Accounts payable and accrued
expenses............................ (73,043) 274,470 51,129 200,687
--------- ----------- --------- ---------
Net cash flows from operating
activities........................ 461,071 967,758 224,888 325,924
--------- ----------- --------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment.......... (180,994) (46,942) (28,277) (30,121)
Advances to parent and affiliate............ (250,028) (1,004,461) (289,193) (291,853)
--------- ----------- --------- ---------
Net cash flows from investing
activities........................ (431,022) (1,051,403) (317,470) (321,974)
--------- ----------- --------- ---------
NET CHANGE IN CASH............................ 30,049 (83,645) (92,582) 3,950
CASH, BEGINNING OF PERIOD..................... 115,312 145,361 145,361 61,716
--------- ----------- --------- ---------
CASH, END OF PERIOD........................... $ 145,361 $ 61,716 $ 52,779 $ 65,666
========= =========== ========= =========
SUPPLEMENTAL CASH FLOW INFORMATION:
Interest paid............................... $ -- $ -- $ -- $ --
--------- ----------- --------- ---------
Income taxes paid........................... $ -- $ -- $ -- $ --
--------- ----------- --------- ---------
See accompanying notes to combined financial statements.
F-36
167
UNITED ARTISTS THEATRE CIRCUIT, INC. CINEMAS AT
BRONXVILLE, LARCHMONT, WAYNE, NEW CITY AND MAMARONECK
NOTES TO COMBINED FINANCIAL STATEMENTS
(Data relating to March 31, 1997 and 1996 are unaudited)
- --------------------------------------------------------------------------------
NOTE 1--NATURE OF THE BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Principles of Combination--The combined financial statements include the
accounts of the United Artist Theatre Circuit, Inc. theaters at Bronxville,
Larchmont, Wayne, New City and Mamaroneck (the "UA Theaters"). All significant
inter-location balances and transactions have been eliminated in combination.
Nature of the Business--The UA Theaters are regional motion picture houses
located in suburban communities in the New York/New Jersey metropolitan area.
Revenues and Film Rental Costs--The UA Theaters recognize revenues from box
office admissions and concession sales at the time of sale. Film rental costs
are based a film's box office receipts and length of a film's run.
Seasonality--The UA Theaters' business is seasonal with a large portion of
their revenues and profits being derived during the summer months (June through
August) and the holiday season (November and December).
Estimates and Uncertainties--The preparation of financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results, as determined at a later date,
could differ from those estimates.
Inventories--Inventories consist of concession products and are stated at
the lower of cost (first-in, first-out method) or market.
Property and Equipment--Property and equipment are stated at cost.
Buildings and improvements, theater equipment and office furniture and equipment
are depreciated using straight line and accelerated methods over the estimated
useful lives of the assets. In general, the estimated useful lives used in
computing depreciation and amortization are: buildings and improvements--39
years; theater equipment--5 to 10 years; office furniture and equipment--5 to 10
years. Leasehold improvements are amortized using the straight-line method over
the term of the related lease or the estimated useful life of the asset,
whichever is less.
Rent Expense--The Wayne theater included in the combined financial
statements is operated under a lease that contains predetermined increases in
the rent payable during the term of such lease. For this lease, the aggregate
rental expense over the lease term is recognized on a straight-line basis over
the lease term. The differences between the expense charged to operations and
the amount payable under that lease are recorded annually as deferred rent
expense, which will ultimately reverse over the lease term.
Additional rent is paid for common area maintenance and may also be charged
based on a percentage of net revenue in excess of a predetermined amount.
Financial Instruments--Financial instruments include cash, security
deposits, accounts payable and accrued expenses The amounts reported for
financial instruments are considered to be reasonable approximations of their
fair values, based on market information concerning financial instruments with
similar characteristics available to management.
Impairment of Long-Lived Assets--In 1996, the United Artists Theatre
Circuit, Inc. ("UA") adopted Statement of Financial Accounting Standards
("SFAS") No. 121, "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to be Disposed Of" (See Note 4). SFAS No. 121 prescribes that
an impairment loss is recognized in the event that facts and circumstances
indicate that the carrying amount of an asset may not be recoverable.
F-37
168
UNITED ARTISTS THEATRE CIRCUIT, INC. CINEMAS AT
BRONXVILLE, LARCHMONT, WAYNE, NEW CITY AND MAMARONECK
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(Data relating to March 31, 1997 and 1996 are unaudited)
- --------------------------------------------------------------------------------
NOTE 1--NATURE OF THE BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING
POLICIES:--(CONTINUED)
Interim reporting--The interim financial statements included herein reflect
all adjustments which are, in the opinion of management, necessary for a fair
presentation of the results for the interim periods presented. Such adjustments
consist solely of normal recurring accruals. Results for interim periods are not
necessarily indicative of results for a full year.
NOTE 2--PROPERTY AND EQUIPMENT:
Property and equipment are summarized as follows:
DECEMBER 31, MARCH 31,
1996 1997
------------ ----------
Land............................................... $1,520,650 $1,520,650
Buildings and improvements......................... 1,584,363 1,584,363
Leasehold improvements............................. 1,922,135 1,928,550
Office furniture and equipment..................... 874,058 897,702
---------- ----------
5,901,206 5,931,265
Less: Accumulated depreciation and amortization.... 1,054,392 1,103,472
---------- ----------
$4,846,814 $4,827,793
========== ==========
NOTE 3--COMMITMENTS AND CONTINGENCIES:
Theater Leases--Certain of the UA Theaters are operated under lease
arrangements. The following is a schedule of future minimum rental payments
required for all non-cancellable operating leases (for theater facilities) that
have initial or remaining lease terms in excess of one year at December 31,
1996:
YEAR ENDING DECEMBER 31,
- ------------------------
1997........................................................ $ 121,293
1998........................................................ 121,293
1999........................................................ 121,293
2000........................................................ 121,293
2001........................................................ 122,439
2002 and thereafter......................................... 961,689
----------
$1,569,300
==========
Rent expense for theater operating leases in 1995 and 1996 was
approximately $108,000 and $151,000, respectively.
NOTE 4--IMPAIRMENT OF LONG-LIVED ASSETS:
In the third quarter of 1996, UA recorded a $224,908 charge for the
difference between the fair value and the carrying value of the New City theater
location. The fair value was determined based on an offer received by UA to sell
such location for approximately $1,300,000, reduced further for estimated sales
costs.
F-38
169
UNITED ARTISTS THEATRE CIRCUIT, INC. CINEMAS AT
BRONXVILLE, LARCHMONT, WAYNE, NEW CITY AND MAMARONECK
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
(Data relating to March 31, 1997 and 1996 are unaudited)
- --------------------------------------------------------------------------------
NOTE 5--RELATED PARTY TRANSACTIONS:
Operating Expenses, Management Fees and Interest Expense--The UA Theaters'
operations through the date of sale were significantly controlled by UA. In that
regard, the cash deposited to the UA Theaters' operating accounts was
transferred to UA which used the funds to pay operating expenses, along with the
funds from other UA affiliated theaters, on a company-wide basis using an
integrated system.
Interest expense represents an allocation of interest costs incurred by UA
and is charged to the UA Theaters based on each theater's respective net assets.
NOTE 6--SUBSEQUENT EVENTS (UNAUDITED):
In July, 1997, UA entered into an agreement to sell substantially all of
the assets, including leasehold interests, equipment and various operating
contracts, of the UA Theaters to Clearview Cinema Group, Inc. for $8,650,000.
F-39
170
INDEPENDENT AUDITORS' REPORT
Board of Directors of
Clearview Cinema Group, Inc.
We have audited the combined balance sheet of the Nelson Ferman Theaters at
Parsippany and Roxbury (the "NF Theaters"), as of September 30, 1997 and the
related combined statements of income and changes in retained earnings and cash
flows for the nine months ended September 30, 1997 and the year ended December
31, 1996. These combined financial statements are the responsibility of the
management of Nelson Ferman, Inc. Our responsibility is to express an opinion on
these combined financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the combined financials are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the combined financial statements. An audit also
includes assessing the accounting principles used and significant estimates made
by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the combined financial statements referred to above present
fairly, in all material respects, the financial position of the NF Theaters at
September 30, 1997, and the results of their operations and their cash flows for
of the nine months ended September 30, 1997 and the year ended December 31,
1996, in conformity with generally accepted accounting principles.
WISS & COMPANY, LLP
Woodbridge, New Jersey
October 22, 1997
F-40
171
NELSON FERMAN THEATERS AT PARSIPPANY AND ROXBURY
COMBINED BALANCE SHEET
SEPTEMBER 30, 1997
- --------------------------------------------------------------------------------
ASSETS
CURRENT ASSETS:
Cash...................................................... $ 37,017
Other current assets...................................... 84,415
---------
Total current assets.............................. $ 121,432
PROPERTY AND EQUIPMENT, LESS ACCUMULATED DEPRECIATION....... 3,828,748
OTHER ASSETS:
Due from affiliate........................................ 125,488
Other assets.............................................. 36,403 161,891
--------- ----------
$4,112,071
==========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current maturities of long-term debt...................... $ 302,917
Current portion of deferred income........................ 100,000
Accounts payable and accrued expenses..................... 723,674
---------
Total current liabilities......................... $1,126,591
LONG-TERM LIABILITIES:
Long-term debt, less current maturities................... 1,633,333
Deferred income, net of current portion................... 625,000
---------
2,258,333
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Common Stock.............................................. 504,000
Additional paid-in capital................................ 27,000
Retained earnings......................................... 196,147
---------
Total Stockholders' Equity........................ 727,147
----------
$4,112,071
==========
See accompanying notes to combined financial statements.
F-41
172
NELSON FERMAN THEATERS AT PARSIPPANY AND ROXBURY
COMBINED STATEMENTS OF INCOME
AND CHANGES IN RETAINED EARNINGS
- --------------------------------------------------------------------------------
NINE MONTHS
YEAR ENDED ENDED
DECEMBER 31, SEPTEMBER 30,
1996 1997
------------ -------------
THEATER REVENUES:
Box office................................................ $4,812,495 $4,015,770
Concession................................................ 1,129,729 989,484
Other..................................................... 39,167 35,979
---------- ----------
5,981,391 5,041,233
---------- ----------
OPERATING EXPENSES:
Film rental and booking fees.............................. 2,373,986 1,925,740
Theater operating expenses................................ 1,848,016 1,354,756
General and administrative expenses....................... 1,103,057 819,520
Depreciation and amortization............................. 403,075 298,980
---------- ----------
5,728,134 4,398,996
---------- ----------
OPERATING INCOME............................................ 253,257 642,237
INTEREST EXPENSE............................................ 250,156 188,963
---------- ----------
NET INCOME.................................................. 3,101 453,274
RETAINED EARNINGS (DEFICIT), BEGINNING OF PERIOD............ (260,228) (257,127)
---------- ----------
RETAINED EARNINGS (DEFICIT), END OF PERIOD.................. $ (257,127) $ 196,147
========== ==========
See accompanying notes to combined financial statements.
F-42
173
NELSON FERMAN THEATERS AT PARSIPPANY AND ROXBURY
COMBINED STATEMENTS OF CASH FLOWS
- --------------------------------------------------------------------------------
NINE MONTHS
YEAR ENDED ENDED
DECEMBER 31, SEPTEMBER 30,
1996 1997
------------ -------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income................................................ $ 3,101 $ 453,274
Adjustments to reconcile net income (loss) to net cash
flows from operating activities:
Depreciation and amortization.......................... 403,075 298,980
Recognition of deferred revenue........................ (100,000) (75,000)
Amortization of accrued rent........................... 25,146 18,860
Changes in operating assets and liabilities:
Other current assets................................. (28,286) 32,466
Other assets......................................... 10,000 12,000
Accounts payable and accrued expenses................ 19,681 (157,215)
--------- ---------
Net cash flows from operating activities.......... 332,717 583,365
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment........................ (114,423) --
Advances to parent and affiliate.......................... (89,878) (494,209)
--------- ---------
Net cash flows from investing activities.......... (204,301) (494,209)
--------- ---------
CASH FLOW FROM FINANCING ACTIVITIES:
Payments on long-term debt................................ (156,604) (151,250)
--------- ---------
NET CHANGE IN CASH.......................................... (28,188) (62,094)
CASH, BEGINNING OF PERIOD................................... 127,299 99,111
--------- ---------
CASH, END OF PERIOD......................................... $ 99,111 $ 37,017
========= =========
SUPPLEMENTAL CASH FLOW INFORMATION:
Interest paid............................................. $ 250,156 $ 188,963
========= =========
Income taxes paid......................................... $ -- $ --
========= =========
See accompanying notes to combined financial statements.
F-43
174
NELSON FERMAN THEATERS AT PARSIPPANY AND ROXBURY
NOTES TO COMBINED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 1--NATURE OF THE BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Principles of Combination--The combined financial statements include the
accounts of two theater affiliates of Nelson Ferman, Inc. ("Nelson Ferman") at
Parsippany and Roxbury (the "NF Theaters"). All significant inter-location
balances and transactions have been eliminated in combination.
Nature of the Business--The NF Theaters operated multi-screen theaters in
Morris County, New Jersey.
Revenues and Film Rental Costs--The NF Theaters recognize revenues from box
office admissions at the time of sale. Concession sales are recognized as a
commission from a third party, when earned. Film rental costs are based on a
film's box office receipts and length of a film's run.
Seasonality--The NF Theaters' business is seasonal with a large portion of
their revenues and profits being derived during the summer months (June through
August) and the holiday season (November and December).
Estimates and Uncertainties--The preparation of financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results, as determined at a later date,
could differ from those estimates.
Property and Equipment--Property and equipment are stated at cost. Theater
equipment and office furniture and equipment are depreciated using straight line
and accelerated methods over the estimated useful lives of the assets of 7
years. Leasehold improvements are amortized using the straight-line method over
the term of the related lease or the estimated useful life of the asset,
whichever is less.
Rent Expense--The NF Theaters included in the combined financial statements
are operated under leases that contain predetermined increases in the rentals
payable during the term of such leases. For these leases, the aggregate rental
expense over the lease terms is recognized on a straight-line basis over the
lease terms. The differences between the expense charged to operations and the
amount payable under that lease are recorded annually as deferred rent expense,
which will ultimately reverse over the lease terms.
Additional rent is paid for common area maintenance and may also be charged
based on a percentage of net revenue in excess of a predetermined amount.
Financial Instruments--Financial instruments include cash and accounts
payable and accrued expenses. The amounts reported for financial instruments are
considered to be reasonable approximations of their fair values, based on market
information of financial instruments with similar characteristics available to
management.
Income Taxes--The NF Theaters have elected under Section 1361 of the
Internal Revenue Code and under New Jersey corporate statutes to be taxed as
small business corporations. Under these provisions, all earnings and losses of
the NF Theaters are reported on the tax returns of the shareholders.
Accordingly, no provision has been made for federal income taxes and the NF
Theaters are subject to state taxes at a nominal rate.
Impairment of Long-Lived Assets--In 1996, Nelson Ferman adopted Statement
of Financial Accounting Standards ("SFAS") No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of."
The effect of the adoption of that statement did not have a material effect on
the financial statements.
F-44
175
NELSON FERMAN THEATERS AT PARSIPPANY AND ROXBURY
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
- --------------------------------------------------------------------------------
NOTE 2--PROPERTY AND EQUIPMENT:
Property and equipment at September 30, 1997 are summarized as follows:
Leasehold improvements...................................... $4,063,081
Furniture and equipment..................................... 1,563,084
----------
5,626,165
Less: Accumulated depreciation and amortization............. 1,797,417
----------
$3,828,748
==========
NOTE 3--LONG-TERM DEBT:
Long-Term Debt--A summary of long-term debt at September 30, 1997 follows:
INTEREST
DESCRIPTION RATE
----------- --------
Notes payable, due in monthly installments of
$14,583 plus interest, through November 2000 with
the remaining balance of $1,239,583 due in January Prime%
2001.............................................. plus .25 $1,808,333
Other............................................... Various 127,917
----------
1,936,250
Less: Current maturities............................ 302,917
----------
$1,633,333
==========
The above debt is secured by the leasehold interest and other operating
assets of the NF Theaters and is guaranteed by all affiliates of Nelson Ferman,
including its stockholders.
Long-term debt matures as follows:
YEAR ENDED SEPTEMBER 30,
------------------------
1998........................................................ $ 302,917
1999........................................................ 175,000
2000........................................................ 175,000
2001........................................................ 1,283,333
----------
$1,936,250
==========
NOTE 4--DEFERRED INCOME:
The NF Theaters entered into an agreement with the concession vendor of the
Parsippany location in November, 1994, wherein the concessionaire paid
$1,000,000 as advance commissions. The commissions are being recognized as
income ratably over the term of the concession agreement, which expires in
November 2004. At September 30, 1997, the unamortized deferred commission
amounted to approximately $725,000.
The agreement stipulates that if the NF Theater at Parsippany cancels the
agreement prior to its expiration, the remaining unamortized balance must be
refunded to the concessionaire.
F-45
176
NELSON FERMAN THEATERS AT PARSIPPANY AND ROXBURY
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
- --------------------------------------------------------------------------------
NOTE 5--COMMON STOCK:
Common stock consists of the following at September 30, 1997:
Parsippany:
No par value, authorized and issued 100 shares............ $500,000
Roxbury:
No par value, authorized and issued 100 shares............ 4,000
--------
$504,000
========
NOTE 6--COMMITMENTS AND CONTINGENCIES:
Theater Leases--The following is a schedule of future minimum rental
payments required for all non-cancelable operating leases (for theater
facilities) that have initial or remaining lease terms in excess of one year at
September 30, 1997:
YEAR ENDING SEPTEMBER 30,
- -------------------------
1997........................................................ $ 353,805
1998........................................................ 353,805
1999........................................................ 361,523
2000........................................................ 361,523
2001........................................................ 375,478
2002 and thereafter......................................... 5,954,209
----------
$7,760,343
==========
Rent expense for theater operating leases for the year ended December 30,
1996 and the nine months ended September 30, 1997 was approximately $570,000 and
$384,000, respectively.
NOTE 7--RELATED PARTY TRANSACTIONS:
Operating Expenses, Management Fees and Interest Expense--The NF Theaters'
operations through the date of sale were significantly controlled by Nelson
Ferman. In that regard, the cash deposited to the NF Theaters' operating
accounts was transferred to Nelson Ferman, which used the funds to pay operating
expenses, along with the funds from other Nelson Ferman affiliated theaters, on
a company-wide basis using an integrated system.
Interest expense represents an allocation of interest costs incurred by
Nelson Ferman and is charged to the NF Theaters based on each theater's
respective net assets.
NOTE 8--SUBSEQUENT EVENT (UNAUDITED):
In November 1997, Nelson Ferman sold substantially all of the assets,
including leasehold interests, equipment and various operating contracts of the
NF Theaters at Parsippany and Roxbury to Clearview Cinema Group, Inc.
("Clearview") for $18.5 million; $11.6 million in cash, 10 1/2% subordinated
notes aggregating $6.0 million, and common stock of Clearview valued at
$500,000, with an additional $400,000 held in escrow until the satisfaction of
certain obligations of Nelson Ferman.
F-46
177
INDEPENDENT AUDITORS' REPORT
Board of Directors
Clearview Cinema Group, Inc.
We have audited the combined balance sheet of the CJM Theaters at Kin-Mall,
Middlebrook, Cedar Grove and Bellevue (the "CJM Theaters") as of September 30,
1997 and the related combined statements of income and retained earnings and
cash flows for the nine months ended September 30, 1997 and the year ended
December 31, 1996. These combined financial statements are the responsibility of
the management of CJM Entertainment, Inc. Our responsibility is to express an
opinion on these combined financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the combined financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the combined financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the combined financial statements referred to above present
fairly, in all material respects, the financial position of the CJM Theaters at
September 30, 1997, and the results of their operations and their cash flows for
the nine months ended September 30, 1997 and the year ended December 31, 1996,
in conformity with generally accepted accounting principles.
WISS & COMPANY, LLP
Woodbridge, New Jersey
December 4, 1997
F-47
178
CJM THEATERS AT KIN-MALL, MIDDLEBROOK,
CEDAR GROVE AND BELLEVUE
COMBINED BALANCE SHEET
SEPTEMBER 30, 1997
- --------------------------------------------------------------------------------
ASSETS
CURRENT ASSETS:
Cash...................................................... $1,030,467
Inventories............................................... 15,657
Other current assets...................................... 31,668
----------
Total current assets................................... $1,077,792
PROPERTY AND EQUIPMENT, NET OF ACCUMULATED DEPRECIATION..... 2,479,993
OTHER ASSETS................................................ 30,280
----------
$3,588,065
==========
LIABILITIES AND STOCKHOLDERS' EQUITY
ACCOUNTS PAYABLE AND ACCRUED EXPENSES....................... $ 377,445
AMOUNTS DUE TO OFFICER...................................... 2,313,489
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Common stock.............................................. $ 19,000
Retained earnings......................................... 878,131
----------
Total stockholders' equity............................. 897,131
----------
$3,588,065
==========
See accompanying notes to combined financial statements.
F-48
179
CJM THEATERS AT KIN-MALL, MIDDLEBROOK,
CEDAR GROVE AND BELLEVUE
COMBINED STATEMENTS OF INCOME AND CHANGES IN RETAINED EARNINGS
- --------------------------------------------------------------------------------
NINE MONTHS
YEAR ENDED ENDED
DECEMBER 31, SEPTEMBER 30,
1996 1997
------------ -------------
THEATER REVENUES:
Box office................................................ $3,774,264 $3,532,934
Concession................................................ 1,211,383 1,015,434
Other..................................................... 10,008 12,300
---------- ----------
4,995,655 4,560,668
---------- ----------
OPERATING EXPENSES:
Film rental and booking fees.............................. 1,703,429 1,608,263
Cost of concessions....................................... 248,766 194,289
Theater operating expenses................................ 1,823,464 1,695,748
General and administrative expenses....................... 181,116 114,834
Depreciation and amortization............................. 314,976 191,781
---------- ----------
4,271,751 3,804,915
---------- ----------
OPERATING INCOME............................................ 723,904 755,753
INTEREST EXPENSE............................................ 182,296 151,409
---------- ----------
INCOME BEFORE PROVISION FOR INCOME TAXES.................... 541,608 604,344
PROVISION FOR INCOME TAXES.................................. 18,761 25,500
---------- ----------
NET INCOME.................................................. 522,847 578,844
RETAINED EARNINGS, BEGINNING OF PERIOD...................... 326,579 643,381
DISTRIBUTIONS TO STOCKHOLDERS............................... (206,045) (344,094)
---------- ----------
RETAINED EARNINGS, END OF PERIOD............................ $ 643,381 $ 878,131
========== ==========
See accompanying notes to combined financial statements.
F-49
180
CJM THEATERS AT KIN-MALL, MIDDLEBROOK,
CEDAR GROVE AND BELLEVUE
COMBINED STATEMENTS OF CASH FLOWS
- --------------------------------------------------------------------------------
NINE MONTHS
YEAR ENDED ENDED
DECEMBER 31, SEPTEMBER 30,
1996 1997
------------ -------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income................................................ $ 522,847 $ 578,844
Adjustments to reconcile net income to net cash flows from
operating activities:
Depreciation and amortization.......................... 314,976 191,781
Changes in operating assets and liabilities:
Inventories.......................................... 40 (2,795)
Other current assets................................. 2,060 (10,553)
Other assets......................................... (29,668) 1,501
Accounts payable and accrued expenses................ 28,296 (148,958)
---------- ----------
Net cash flows from operating activities.......... 838,551 609,820
---------- ----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment........................ (398,904) (293,327)
---------- ----------
Net cash flows from investing activities.......... (398,904) (293,327)
---------- ----------
CASH FLOW FROM FINANCING ACTIVITIES:
Distributions to stockholders............................. (206,045) (344,094)
Net advances from officer................................. 58,418 30,666
Proceeds from issuance of common stock.................... 2,000 --
---------- ----------
Net cash flows from financing activities.......... (145,627) (313,428)
---------- ----------
NET CHANGE IN CASH.......................................... 294,020 3,065
CASH, BEGINNING OF PERIOD................................... 733,382 1,027,402
---------- ----------
CASH, END OF PERIOD......................................... $1,027,402 $1,030,467
========== ==========
SUPPLEMENTAL CASH FLOW INFORMATION:
Interest paid............................................. $ 182,296 $ 151,409
========== ==========
Income taxes paid......................................... $ 8,500 $ 18,000
========== ==========
See accompanying notes to combined financial statements.
F-50
181
CJM THEATERS AT KIN-MALL, MIDDLEBROOK,
CEDAR GROVE AND BELLEVUE
NOTES TO COMBINED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 1--NATURE OF THE BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Principles of Combination--The combined financial statements include the
accounts of certain theater affiliates of CJM Entertainment, Inc. ("CJM") at
Kin-Mall, Middlebrook, Cedar Grove and Bellevue (the "CJM Theaters"). All
significant inter-location balances and transactions have been eliminated in
combination.
Nature of the Business--The CJM Theaters operated multi-screen theaters
located in Morris, Essex and Monmouth Counties, New Jersey.
Revenues and Film Rental Costs--The CJM Theaters recognize revenues from
box office admissions and concession sales at the time of sale. Film rental
costs are based on a film's box office receipts and length of a film's run.
Seasonality--The CJM Theaters' business is seasonal with a large portion of
their revenues and profits being derived during the summer months (June through
August) and the holiday season (November and December).
Estimates and Uncertainties--The preparation of financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results, as determined at a later date,
could differ from those estimates.
Property and Equipment--Property and equipment are stated at cost. Theater
equipment and office furniture and equipment are depreciated using straight line
and accelerated methods over the estimated useful lives of the assets of 7
years. Leasehold improvements are amortized using the straight-line method over
the term of the related lease or the estimated useful life of the asset, which
ever is less.
Rent Expense--The CJM Theaters included in the combined financial
statements are operated under leases that contain predetermined increases in the
rentals payable during the term of such leases. For these leases, the aggregate
rental expense over the lease terms is recognized on a straight-line basis over
the lease terms. The differences between the expense charged to operations and
the amount payable under that lease are recorded annually as deferred rent
expense, which will ultimately reverse over the lease term.
Additional rent is paid for common area maintenance and may also be charged
based on a percentage of net revenue in excess of a predetermined amount.
Financial Instruments--Financial instruments include cash and accounts
payable and accrued expenses The amounts reported for financial instruments are
considered to be reasonable approximations of their fair values, based on market
information of financial instruments with similar characteristics available to
management.
Income Taxes--The CJM Theaters have elected under Section 1361 of the
Internal Revenue Code and under New Jersey corporate statutes to be taxed as
small business corporations. Under these provisions, all earnings and losses of
the CJM Theaters are reported on the tax returns of the shareholders.
Accordingly, no provision has been made for federal income taxes and the CJM
Theaters are subject to state taxes at a nominal rate.
Impairment of Long-Lived Assets--In 1996, the CJM Theaters adopted
Statement of Financial Accounting Standards ("SFAS") No. 121, "Accounting for
the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed
Of." The effect of adoption of the statement did not have a material effect on
the financial statements.
F-51
182
CJM THEATERS AT KIN-MALL, MIDDLEBROOK,
CEDAR GROVE AND BELLEVUE
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
- --------------------------------------------------------------------------------
NOTE 2--PROPERTY AND EQUIPMENT:
Property and equipment at September 30, 1997 are summarized as follows:
Leasehold improvements...................................... $2,323,240
Furniture and other equipment............................... 1,480,472
----------
3,803,712
Less: Accumulated depreciation and amortization............. 1,323,719
----------
$2,479,993
==========
NOTE 3--COMMON STOCK:
Common stock consist of the following at September 30, 1997:
Kin-Mall:
No par value, authorized 2500 shares, issued and
outstanding 200 shares................................. $ 2,000
Middlebrook:
No par value, authorized 2500 shares, issued and
outstanding 100 shares................................. 10,000
Cedar Grove:
No par value, authorized 2500 shares, issued and
outstanding 200 shares................................. 5,000
Bellevue:
No par value, authorized 2500 shares, issued and
outstanding 200 shares................................. 2,000
-------
$19,000
=======
NOTE 4--COMMITMENTS AND CONTINGENCIES:
Theater Leases--The following is a schedule of future minimum rental
payments required for all non-cancellable operating leases that have initial or
remaining lease terms in excess of one year at September 30, 1997:
YEAR ENDING SEPTEMBER 30,
- -------------------------
1998........................................................ $ 712,112
1999........................................................ 668,135
2000........................................................ 448,250
2001........................................................ 470,325
2002........................................................ 430,326
2003 and thereafter......................................... 2,249,744
----------
$4,978,892
==========
Rent expense for theater operating leases for the nine months ended
September 30, 1997 and the year ended December 31, 1996, was approximately
$608,000 and $750,000, respectively.
NOTE 5--RELATED PARTY TRANSACTIONS:
Due to Officer--The amount due to officer represent advances made to each
of the respective CJM Theaters' since their inception. No specified payment
terms have been determined.
F-52
183
CJM THEATERS AT KIN-MALL, MIDDLEBROOK,
CEDAR GROVE AND BELLEVUE
NOTES TO COMBINED FINANCIAL STATEMENTS--(CONTINUED)
- --------------------------------------------------------------------------------
NOTE 6--SUBSEQUENT EVENT (UNAUDITED):
In December 1997, CJM sold substantially all of the assets, including
leasehold interests, equipment and various operating contracts of the CJM
Theaters at Kin-Mall, Middlebrook, Cedar Grove and Bellevue to Clearview Cinema
Group, Inc. ("Clearview").
CJM received 62,500 shares of common stock of Clearview in exchange for
certain furniture, fixtures, equipment, and personal property related to the
operation of its Bellevue theater, a four-screen theater located in Upper
Montclair, New Jersey and a leasehold interest in the real property on which
that theater is located.
Pursuant to three separate asset purchase agreements, CJM sold the
respective leasehold interests and furniture, fixtures, equipment and personal
property related to the operation of its eight-screen Kin-Mall theater located
in Kinnelon, New Jersey; its five-screen theater located in Cedar Grove, New
Jersey; and its ten-screen Middlebrook theater located in Ocean Township, New
Jersey. The aggregate purchase price of these three acquisitions totaled $8.75
million; $7.25 million in cash and the right to receive 1,500 shares of
Clearview's Class B Non-Voting Cumulative Redeemable Preferred Stock (the "Class
B Preferred Stock"). CJM will receive cash of $1.5 million (plus interest
accrued at 10 1/2%) in lieu of the Class B Preferred Stock if Clearview
consummates a specified debt offering by certain prescribed dates. In addition,
the right to receive 750 of the 1,500 shares of Clearview's Class B Preferred
Stock will also terminate if, prior to December 12, 1999, any other party
receives all material governmental approvals for the construction of a new
theater complex in a specified location.
F-53
184
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
No person has been authorized to give any information or to make any
representations not contained in this Prospectus in connection with the offer
made in this Prospectus, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. This Prospectus does not constitute an offer to sell or the
solicitation of an offer to buy any security other than the Notes offered hereby
nor does it constitute an offer to sell, or a solicitation of an offer to buy,
any of the Notes to any person in any jurisdiction in which it would be unlawful
to make such an offer or solicitation to such person. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under any circumstances,
create an implication that there has not been any change in the facts set forth
in this Prospectus or in the affairs of the Company since the date hereof.
------------------------
TABLE OF CONTENTS
PAGE
----
Available Information.................... v
Prospectus Summary....................... 1
Risk Factors............................. 16
The Exchange Offer....................... 24
Use of Proceeds.......................... 31
Capitalization........................... 32
Unaudited Pro Forma Combined Financial
Information............................ 33
Selected Historical Financial Data....... 43
Management's Discussion and Analysis of
Financial Condition and Results of
Operations............................. 45
Business................................. 52
Management............................... 67
Certain Transactions..................... 71
Principal Stockholders................... 74
Description of Notes..................... 75
Description of Capital Stock............. 119
Description of New Credit Facility....... 122
Certain United States Federal Income Tax
Consequences........................... 123
Plan of Distribution..................... 124
Legal Matters............................ 124
Experts.................................. 125
Index to Financial Statements............ F-1
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CLEARVIEW CINEMA GROUP, INC.
------------------
10 7/8% SENIOR NOTES
DUE 2008
----------------
PROSPECTUS
----------------
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