As filed with the United States Securities and Exchange Commission on April 4, 2014
Registration No. 333-176055
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Post-Effective Amendment No. 3
to
FORM S-3
Registration Statement
Under
the
Securities Act of 1933
National CineMedia, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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20-5665602
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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9110 E. Nichols Ave., Suite 200
Centennial, Colorado 80112-3405
(303) 792-3600
(Address,
including zip code, and telephone number, including area code, of registrants principal executive offices)
Ralph E.
Hardy, Esq.
Executive Vice President and General Counsel
National CineMedia, Inc.
9110 E. Nichols Ave., Suite 200
Centennial, Colorado 80112-3405
(303) 792-3600
(Name,
address, including zip code and telephone number, including area code, of agent for service)
With a copy to:
LaDawn Naegle, Esq.
Jennifer A. DAlessandro, Esq.
Bryan Cave LLP
1700
Lincoln Street, Suite 4100
Denver, Colorado 80203
(303) 861-7000
APPROXIMATE DATE
OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement, as determined by market conditions.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box:
¨
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box:
x
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering.
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If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
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If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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x
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock, par value $0.01 per share
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65,083,427 shares
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$15.09
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$981,829,338.32
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$ 117,159.43 (2)
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Common Stock, par value $0.01 per share
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4,460,152 shares
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$14.87(3)
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$66,322,460.24 (3)
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$ 8,542.33
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Total
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69,543,579 shares
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$ 125,701.76
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(1)
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Represents the number of shares of Common Stock included in this Registration Statement that are currently issuable upon exchange of National CineMedia, LLCs common membership units held by the founding member
theatre circuits named as selling stockholders in the prospectus supplement at the ratio of one common membership unit for one share of Common Stock of National CineMedia, Inc. Pursuant to Rule 416 under the Securities Act, the shares being
registered hereunder include such indeterminate number of shares of Common Stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. Excludes 2,300,000 shares
previously registered under this Registration Statement which have been sold hereunder.
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(3)
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Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the Securities Act. The price per share and aggregate offering price are based on the average of the high and low
sales prices of the registrants Common Stock on March 28, 2014, as reported on the Nasdaq Global Select Market.
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PROSPECTUS
69,543,579 Shares
National CineMedia, Inc.
Common Stock
This
prospectus relates to the disposition from time to time by our founding member theatre circuits, or the selling stockholders, of up to 69,543,579 shares of common stock, par value $0.01 per share, of National CineMedia, Inc., or NCM, Inc., issuable
upon exchange on a one-for-one basis of common membership units of National CineMedia, LLC, or NCM LLC, the operating company for our business and of which we are a member and the sole manager. Under the terms of the registration rights agreement
with the selling stockholders executed at the date of the IPO, NCM Inc. is required to register shares of its common stock equal to the number of NCM LLC common membership units held by each selling stockholder.
The selling stockholders hold an aggregate of 69,543,579 common membership units that were issued in conjunction with our IPO and thereafter
pursuant to contractual arrangements in effect among NCM, Inc., NCM LLC and the selling stockholders relating to net screens that have been added to our network. We have registered for resale by our selling stockholders NCM, Inc. common stock equal
to all of the current outstanding common membership units as required by the registration rights agreement.
We will not pay any
underwriting discounts or commissions on the shares of common stock issued to the selling stockholders. We will not receive any proceeds from the sale of common stock by the selling stockholders.
Our common stock trades on the Nasdaq Global Select Market under the symbol NCMI. On April 3, 2014, the reported last sale
price of our common stock on the Nasdaq Global Select Market was $15.90 per share.
The selling stockholders or their pledgees, assignees
or successors-in-interest may offer and sell or otherwise dispose of the shares of common stock described in this prospectus from time to time through public or private transactions at prevailing market prices, at prices related to prevailing market
prices or at privately negotiated prices. See Plan of Distribution beginning on page 8 for more information about how the selling stockholders may sell or dispose of their shares of common stock.
The selling stockholders may resell the common stock to or through underwriters, broker-dealers or agents, who may receive compensation in the
form of discounts, concessions or commissions. The selling stockholders will bear all commissions and discounts, if any, attributable to the sales of common stock. We will bear all costs, expenses and fees in connection with the registration of the
common stock.
Investing in our common stock involves risks. See
Risk Factors
beginning on page 4 of this
prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this
prospectus is April 4, 2014.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the SEC, using a
shelf registration or continuous offering process. Under this shelf process, the selling stockholders may from time to time sell the shares of common stock described in this prospectus in one or more offerings. Additionally, under the
shelf process, in certain circumstances, we may provide a prospectus supplement that will contain certain specific information about the terms of a particular offering by one or more of the selling stockholders. This prospectus and any applicable
prospectus supplement, including the documents incorporated by reference, include important information about us, our common stock and other information you should know before investing in our common stock. We may also provide a prospectus
supplement to add information to, or update or change information contained in this prospectus.
You should rely only on the
information contained or incorporated by reference into this prospectus or any applicable prospectus supplement. We have not, and the selling stockholders have not, authorized anyone to provide you with different or additional information. The
selling stockholders are offering to sell, and seeking offers to buy, shares of our common stock only in jurisdictions where it is lawful to do so. The information in this prospectus, including the documents incorporated by reference, are accurate
only as of the date set forth on the front of this prospectus or the date of the document incorporated by reference, as applicable, regardless of the time of delivery of this prospectus or any sale of our common stock.
MARKET INFORMATION
Information regarding market share, market position and industry data pertaining to our business contained in or incorporated by reference
into this prospectus or any applicable prospectus supplement consists of estimates based on data and reports compiled by industry professional organizations (including Nielsen Media Research, Inc. and the National Association of Theatre Owners) and
analysts, and our knowledge of our revenues and markets. DMA
®
is a registered trademark of Nielsen Media Research, Inc.
We take responsibility for compiling and extracting, but have not independently verified, market and industry data provided by third parties,
or by industry or general publications, and take no further responsibility for such data. Similarly, while we believe our internal estimates are reliable, our estimates have not been verified by any independent sources, and we cannot assure you as
to their accuracy.
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PROSPECTUS SUMMARY
This summary highlights information contained elsewhere or incorporated by reference into this prospectus. Because it is a summary, it does
not contain all of the information that you should consider before investing in our securities. You should read this entire prospectus and any applicable prospectus supplement carefully, including the section entitled Risk Factors and
the documents that we incorporate by reference, before making an investment decision.
In this document, unless the context
otherwise requires:
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NCM, Inc., the Company, we, us or our refer to National CineMedia, Inc., a Delaware corporation, and its consolidated subsidiary National CineMedia,
LLC.
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NCM LLC refers to National CineMedia, LLC, a Delaware limited liability company, which commenced operations on April 1, 2005, and is the current operating company for our business, which NCM,
Inc. acquired an interest in, and became a member and the sole manager of, upon completion of our initial public offering, or IPO, which closed on February 13, 2007.
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ESAs refers to the amended and restated exhibitor services agreements entered into by NCM LLC with each of NCM LLCs founding members upon completion of the IPO, which were further amended and
restated on December 26, 2013 in connection with the sale of the Fathom Events business.
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AMC refers to AMC Entertainment Inc. and its subsidiaries, National Cinema Network, Inc., or NCN, which contributed assets used in the operations of NCM LLC and formed NCM LLC in March
2005, AMC ShowPlace Theatres, Inc., which joined NCM LLC in June 2010 in connection with AMCs acquisition of Kerasotes ICON Theatres and American Multi-Cinema, Inc., and is party to an ESA with NCM LLC.
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Cinemark refers to Cinemark Holdings, Inc. and its subsidiaries, Cinemark Media, Inc., which joined NCM LLC in July 2005, and Cinemark USA, Inc., and is party to an ESA with NCM LLC.
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Regal refers to Regal Entertainment Group and its subsidiaries, Regal CineMedia Corporation, or RCM, which contributed assets used in the operations of NCM LLC, Regal CineMedia
Holdings, LLC, which formed NCM LLC in March 2005, and Regal Cinemas, Inc., and is party to an ESA with NCM LLC.
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Founding members refers to AMC, Cinemark and Regal.
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Business of
National CineMedia, Inc.
The Company
NCM, Inc., a Delaware corporation was organized on October 5, 2006 and began operations on February 13, 2007 upon completion of its
IPO. NCM, Inc. is a holding company that manages its consolidated subsidiary NCM LLC, but has no business operations or material assets other than its cash and ownership interest of approximately 45.8% of the common membership units in NCM LLC as of
March 27, 2014. NCM LLCs founding members, AMC, Cinemark and Regal, the three largest motion picture exhibition companies in the U.S., hold the remaining 54.2% of NCM LLCs common membership units. NCM, Inc.s primary source of
cash flow from operations is distributions from NCM LLC pursuant to the NCM LLC operating agreement. NCM, Inc. also receives management fees pursuant to a management services agreement with NCM LLC in exchange for providing specific management
services to NCM LLC.
NCM LLC has long-term ESAs with NCM LLCs founding members and multi-year agreements with other theatre
operators whom we refer to as network affiliates. The ESAs and network affiliate agreements grant NCM LLC exclusive rights in their theatres, subject to limited exceptions to sell advertising.
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The growth of our digital network depends on us entering into new agreements with network
affiliates and net increases in the number of screens operated by the founding members of NCM LLC. The common unit adjustment agreement with the founding members of NCM LLC provides a mechanism for adjusting common membership units held by the
founding members, based on increases or decreases in the number of screens operated by each founding member. Increases in the number of screens are included in the unit adjustment if arising from acquisition of a theatre or opening of a newly
constructed theatre, except that acquired theatres subject to an agreement with an alternative cinema advertising provider will not be included until certain run out payments are made to NCM LLC by the founding member acquiring the theatre pursuant
to its ESA or until such third party cinema advertising agreement expires and the theatre is added to our network. Decreases in the number of screens are included in the unit adjustment if arising from disposition of a theatre, unless the purchaser
or sublessee enters into an agreement with NCM LLC similar to the ESA, the theatre is closed at the end of its lease term or a non-digitized theatre is closed within three years of the end of its lease term.
Overview of the Business
We operate the
largest digital in-theatre media network in North America, through which we sell in-theatre and online advertising and promotions. Our advertising pre-show called
FirstLook
and lobby entertainment network, or LEN, programming are
distributed across our digital content network, or DCN, utilizing our proprietary digital content software, or DCS.
We currently derive
revenue principally from advertising activities whereby we develop, produce, sell and distribute several versions of
FirstLook
on theatre screens, and advertising programming on our LEN. We also sell other forms of advertising and promotions
in theatre lobbies and across our online network and mobile apps called Movie Night Out
®
and FirstLookSync.
We believe that the reach and digital delivery capability of our network provide an effective platform for national and local advertisers to
reach a large, young and affluent audience on a highly-targeted, engaging and measurable basis. As of December 26, 2013, our theater advertising network covered 187 Designated Market
Areas
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(49 of the top 50) and included over 19,800 screens (approximately 19,000 connected to our satellite network). During 2013, approximately 710 million patrons (on an annualized
basis) attended movies shown in theaters in which NCM currently has exclusive cinema advertising agreements in place.
Corporate Information
We are a Delaware corporation organized on October 5, 2006, and our principal executive offices are located at 9110 E. Nichols Ave., Suite
200, Centennial, Colorado 80112-3405. The telephone number of our principal executive offices is (303) 792-3600. We maintain a website at
www.ncm.com
, on which we post our key corporate governance documents, including our board committee
charters and our code of ethics. We also regularly post information about the Company on the Investor Relations page. We do not incorporate the information on our website into this prospectus and you should not consider any information on, or that
can be accessed through, our website as part of this prospectus.
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The Offering
Issuer
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National CineMedia, Inc.
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Selling Stockholders
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The selling stockholders identified on page 6.
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Securities Offered
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Up to 69,543,579 shares of our common stock.
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Use of Proceeds
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We will not receive any proceeds from sales of the shares of common stock sold from time to time under this prospectus by the selling stockholders. Such shares will be issued upon an exchange of common membership units, which will increase the
ownership of NCM, Inc. in NCM LLC.
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Risk Factors
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An investment in our common stock involves a high degree of risk. The Risk Factors section beginning on page 4 contains a discussion of factors that you should carefully read and consider before deciding to invest in shares of our
common stock.
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Nasdaq Global Select Market Symbol
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NCMI.
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RISK FACTORS
Ownership of and an investment in our common stock involve certain risks. You should consider carefully the risks incorporated by reference in
this prospectus or any applicable prospectus supplement, including the risks described under the captions Risks Related to our Business and Industry and Risks Related to Our Corporate Structure, included in our Annual Report
on
Form 10-K
for the year ended December 26, 2013 and other information included and incorporated by reference into this prospectus or any applicable prospectus supplement, including our historical
financial statements and related notes, in evaluating an investment in our common stock. The information incorporated by reference in this prospectus or any applicable prospectus supplement may be amended, supplemented or superseded from time to
time by other reports we file with the SEC in the future. For a description of these reports and documents, and information about where you can find them, see the sections entitled Where You Can Find More Information and
Incorporation of Certain Information by Reference in this prospectus. The risks and uncertainties described in this prospectus, any applicable prospectus supplement and the documents incorporated by reference herein and therein are not
the only ones facing us. Additional risks and uncertainties that we do not presently know about or that we currently believe are not material may also adversely affect our business. If any of the risks and uncertainties described in this prospectus,
any applicable prospectus supplement or the documents incorporated by reference herein or therein actually occur, our business, financial condition and results of operations could be adversely affected in a material way. This could cause the trading
price of our common stock to decline, perhaps significantly, and you may lose part or all of your investment.
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
In addition to historical information, some of the information in this prospectus includes forward-looking statements. All
statements other than statements of historical facts included or incorporated by reference in this prospectus, including, without limitation, certain statements under Business, Risk Factors and Managements
Discussion and Analysis of Financial Condition and Results of Operations, may constitute forward-looking statements. In some cases, you can identify these forward-looking statements by the specific words, including but not limited
to may, will, should, expects, forecast, project, intend, plans, anticipates, believes, estimates,
predicts, potential or continue or the negative of those words and other comparable words. These forward-looking statements involve known and unknown risks and uncertainties, assumptions and other factors,
including, but not limited to, the following:
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changes in the ESAs or lack of support by the founding members;
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non-competition provisions of the ESAs being deemed unenforceable;
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bankruptcy of one of the founding members;
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national, regional and local economic conditions that may affect the markets in which we operate;
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the levels of expenditures on advertising in general and cinema advertising in particular;
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increased competition within the overall advertising industry;
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technological changes and innovations, including 3D, digital cinema, alternative methods for delivering movies to consumers and failures or disruptions of our technology systems;
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failure to effectively manage or continue our growth;
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the popularity of major motion picture releases and level of theatre attendance, including at founding members theatres;
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failure to retain our senior management;
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shifts in population and other demographics;
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infringement of our technology on intellectual property rights owned by others;
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our ability to renew expiring advertising contracts at favorable rates, or to replace them with new contracts that are comparably favorable to us;
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our need for, and ability to obtain, additional funding for acquisitions and operations;
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our founding members ability to compete with us, influence our affairs and benefit from corporate opportunities that might otherwise be available to us;
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risks and uncertainties relating to our significant indebtedness and investments, including the availability and adequacy of cash flows to meet our debt service requirements, and any other indebtedness that we may incur
in the future;
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fluctuations in operating costs, capital expenditures, revenue and Adjusted OIBDA;
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future issuance of membership units by NCM LLC or issuance of preferred stock;
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determination that NCM, Inc. or any of our founding members is an investment company;
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determination that any amount of our tax benefits under the tax receivable agreement should not have been available and we cannot recoup from our founding members due to insolvency or bankruptcy;
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changes in market interest rates and stock prices; and
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other factors described under Risk Factors or elsewhere in this prospectus.
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This
list of factors that may affect future performance and the accuracy of forward-looking statements are illustrative and not exhaustive. Our actual results, performance or achievements could differ materially from those indicated in these statements
as a result of additional factors as more fully discussed under Risk Factors above.
All subsequent written and oral
forward-looking statements attributable to us or to persons acting on our behalf are expressly qualified in their entirety by these cautionary statements. We disclaim any intention or obligation to update publicly any forward-looking statements,
whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.
USE OF PROCEEDS
The proceeds from the sale or other disposition of the common stock covered by this prospectus are solely for the
accounts of the selling stockholders. We will not receive any proceeds from any sale or other disposition of these shares of common stock by the selling stockholders.
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DETERMINATION OF OFFERING PRICE
This offering is being made solely to allow the selling stockholders to offer and sell shares of our common stock to the public. The selling
stockholders may offer for sale some of their shares at the time and price that they choose. On any given day, the price per share is likely to be based on the market price of our common stock, as quoted on the Nasdaq Global Select Market on the
date of sale, unless shares are sold in private transactions. Consequently, we cannot currently determine the price at which the shares offered for resale pursuant to this prospectus may be sold.
SELLING STOCKHOLDERS
Each of the selling stockholders is a founding member of NCM LLC, our operating company subsidiary. Regal and AMC formed NCM LLC in
March 29, 2005. On July 15, 2005, Cinemark joined NCM LLC as the third founding member. In February 2007, as part of a reorganization related to our IPO, NCM LLC issued an aggregate of 51,850,951 common membership units to the selling
stockholders. Pursuant to the common unit adjustment agreement among us, NCM LLC and the founding members or certain of their affiliates, the founding members may be issued additional common membership units or surrender common membership units from
time to time, depending on changes in the numbers of theatre screens operated by each founding member. As of the date of this prospectus, an aggregate of 32,427,737 additional common membership units have been issued to the founding members since
our IPO due to positive common unit adjustments, and 1,479,638 common membership units have been surrendered to NCM LLC by the founding members due to negative common unit adjustments. In 2010, an aggregate of 10,955,471 common membership units were
redeemed by two of the founding members in exchange for shares of our common stock, which were then sold by those founding members in secondary offerings to public shareholders. In 2013, an aggregate of 2,300,000 common membership units were
redeemed by one of the founding members in exchange for shares of our common stock, which were then sold by the founding member in secondary offerings to public shareholders.
The common membership units were issued as restricted securities under the Securities Act and are subject to certain restrictions
on transfer under NCM LLCs operating agreement. The common membership units can be exchanged for our common stock on a one-to-one basis, except if we exercise our option to exchange the common membership units for cash. This prospectus covers
the offer and sale or other disposition by the selling stockholders of 69,543,579 shares of common stock issuable to the selling stockholders upon exchange of the common membership units.
We have registered the above-referenced shares to permit each of the selling stockholders and their pledgees, donees, transferees or other
successors-in-interest that, after the date of this prospectus, receive shares of common stock issued upon exchange of their common membership units to resell or otherwise dispose of the shares in the manner contemplated under the Plan of
Distribution.
The selling stockholders may exchange some, all or none of their common membership units for shares of common stock
(subject to our option to exchange units for cash), and they may sell some, all or none of their shares of common stock. The shares of common stock offered by this prospectus may be offered from time to time by the selling stockholders. As part of
the original agreement with the selling stockholders at the time of the IPO, we have agreed to use reasonable best efforts to keep a registration statement effective for each selling stockholder until the earlier of (a) such time as all the
shares owned by the selling stockholder as a consequence of their exchange and conversion of the common membership units have been disposed of by the selling stockholder or (b) all such shares may be sold by the selling stockholder in reliance
on Rule 144 without restriction. We have registered for resale by the founding members common stock equal to all of the current outstanding common membership units as required by the registration rights agreement executed at the date of the IPO.
Since the formation of NCM LLC, AMC and affiliates of RCM and Cinemark have been parties to ESAs (as amended from time to time) with NCM
LLC, which govern the terms by which NCM LLC provides advertising
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in the theatres of the selling stockholders and their affiliates. We and the selling stockholders are also party to a software license agreement related to our provision of services under the
ESAs. Pursuant to a director designation agreement dated February 13, 2007, between us and the selling stockholders, so long as a selling stockholder owns at least 5% of NCM LLCs issued and outstanding common membership units, such
selling stockholder will have the right to designate a total of two nominees to our ten-member board of directors, who are voted upon by our stockholders. If a selling stockholders director designee is not elected, then NCM LLCs
operating agreement provides that each of the selling stockholders with at least 5% of NCM LLCs issued and outstanding common membership units has approval rights for certain NCM LLC actions. The operating agreement also provides for mandatory
distributions from NCM LLC to its members (the selling stockholders and us). Additionally, for as long as a selling stockholder beneficially owns at least 5% of NCM LLCs issued and outstanding common membership units, our certificate of
incorporation provides that supermajority voting is required on certain of our board actions and actions we, in our capacity as sole manager of NCM LLC, may authorize NCM LLC to take. A tax receivable agreement between us and the selling
stockholders provides for our payment of certain tax savings to the selling stockholders. We are also party to a joint defense agreement with the selling stockholders, as well as a registration rights agreement, which pertains to the registration of
shares issuable in exchange for NCM LLC common membership units, as contemplated in this prospectus. On December 26, 2013, NCM LLC sold the Fathom Events business to AC JV, LLC, owned 32% by each of the founding members and 4% by us, and
received a total of $25.0 million in promissory notes from our founding members (one-third or approximately $8.3 million from each founding member). In connection with this transaction, NCM LLC amended and restated the ESAs with each of the founding
members to remove the provisions related to the transferred Fathom Events business, and also entered into a transition services agreement and a services agreement with AC JV, LLC.
The following table sets forth the name of each selling stockholder, the number of shares of our common stock beneficially owned (through
redemption rights associated with the common membership units) by each selling stockholder, the number of shares that may be offered under this prospectus and the number of shares of our common stock to be owned by each selling stockholder after
this offering is completed. The number of shares in the column Number of Shares Being Offered represents all of the shares that a selling stockholder may offer under this prospectus. Information regarding any position, office or other
material relationship which any selling stockholder has had with us within the past three years is described above. For additional information regarding relationships between us and the selling stockholders, see Certain Relationships and
Related Party Transactions in our Definitive Proxy Statement on Schedule 14A filed with the SEC on March 19, 2014, which is incorporated by reference in this prospectus.
As of the date of this prospectus, the selling stockholders do not hold any shares of our common stock, but rather hold common membership
units in NCM LLC. Under the limited liability company agreement for NCM LLC, the selling stockholders have the right to redeem their membership units for, at our election, cash or common stock.
Beneficial ownership of a security is determined in accordance with the rules and regulations of the SEC. Under these rules, a person is
deemed to beneficially own a share of our common stock if that person has or shares voting power or investment power with respect to that share, or has the right to acquire beneficial ownership of that share within 60 days, including through the
exercise of any option or other right or the conversion of any other security. Shares issuable under stock options and warrants not subject to this offering are deemed outstanding for computing the percentage of the person holding options or
warrants but are not deemed outstanding for computing the percentage of any other person. As of March 27, 2014, the percentage of beneficial ownership for the following table is based upon 58,716,346 shares of our common stock (excluding
unvested restricted stock) outstanding of NCM, Inc. and 128,259,925 common membership units of NCM LLC outstanding, of which 58,716,346 are owned by NCM, Inc.
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Name
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Shares Beneficially
Owned Prior to Offering (1)
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Number
of Shares
Being Offered (1)
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Shares Beneficially
Owned After Offering (2)
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|
Number
of Shares
|
|
|
% of Class
|
|
|
|
Number
of Shares
|
|
|
% of Class
|
|
American Multi-Cinema, Inc. and affiliates (3)
|
|
|
19,194,501
|
|
|
|
24.6
|
%
|
|
|
19,194,501
|
|
|
|
|
|
|
|
|
|
Cinemark Holdings, Inc. and affiliates (4)
|
|
|
24,556,136
|
|
|
|
29.5
|
%
|
|
|
24,556,136
|
|
|
|
|
|
|
|
|
|
Regal Entertainment Group and affiliates (5)
|
|
|
25,792,942
|
|
|
|
30.5
|
%
|
|
|
25,792,942
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL
|
|
|
69,543,579
|
|
|
|
54.2
|
%
|
|
|
69,543,579
|
|
|
|
|
|
|
|
|
|
(1)
|
Assumes redemption of all of the holders common membership units into shares of common stock on a one-to-one basis.
|
(2)
|
Assumes all offered shares are sold and beneficial ownership of any additional shares or securities which are convertible or exchangeable into shares are not acquired. The registration of these shares does not
necessarily mean that the selling stockholders will sell all or any portion of their shares covered by this prospectus.
|
(3)
|
Includes American Multi-Cinema, Inc., AMC Entertainment Inc. and AMC Entertainment Holdings, Inc. The address of these stockholders is One AMC Way, 11500 Ash Street, Leawood, Kansas 66211.
|
(4)
|
Includes Cinemark Holdings, Inc., Cinemark USA, Inc. and Cinemark Media, Inc. The address of these stockholders is 3900 Dallas Parkway, Suite 500, Plano, Texas 75093.
|
(5)
|
Includes Regal Entertainment Group, Regal Entertainment Holdings, Inc., Regal Cinemas, Corp., Regal Cinemas, Inc., Regal CineMedia Holdings, LLC and Regal CineMedia Corp. at 7132 Regal Lane, Knoxville, Tennessee 37918
and Anschutz Company and Phillip F. Anschutz at 555 Seventeenth Street, Suite 2400, Denver, Colorado 80202.
|
PLAN OF DISTRIBUTION
The selling stockholders, which as used herein includes donees, pledgees, transferees or other
successors-in-interest selling common membership units or shares received after the date of this prospectus from a selling stockholder as a gift, pledge, partnership distribution or other transfer, may, from time to time, sell, transfer or otherwise
dispose of any or all of their shares on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices
related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices. The offering price of the shares from time to time will be determined by the selling stockholder and, at the time of determination,
may be higher or lower than the market price of our common stock on the Nasdaq Global Select Market.
The selling stockholders may use any
one or more of the following methods from time to time when disposing of shares:
|
|
|
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
|
|
|
|
block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction;
|
|
|
|
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
|
|
|
|
an exchange distribution in accordance with the rules of the applicable exchange;
|
|
|
|
privately negotiated transactions;
|
8
|
|
|
short sales effected after the date the registration statement of which this prospectus is a part is declared effective by the SEC;
|
|
|
|
through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
|
|
|
|
broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;
|
|
|
|
a combination of any such methods of sale; or
|
|
|
|
any other method permitted pursuant to applicable law.
|
The selling stockholders may also sell
shares under Rule 144 under the Securities Act, if available, rather than under this prospectus. The selling stockholders are not obligated to, and there is no assurance that the selling stockholders will, sell all or any of the shares we are
registering. The selling stockholders may transfer, devise or gift such shares by other means not described in this prospectus.
In
connection with the sale of our shares, the selling stockholders may sell the shares directly or through broker-dealers acting as a principal or agent, or pursuant to a distribution by one or more underwriters on a firm commitment or best efforts
basis. The selling stockholders may also enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling
stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of
shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction). The selling stockholders, broker-dealers or agents
that participate in the sale of the common stock may be underwriters within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the shares may be
underwriting discounts and commissions under the Securities Act. Selling stockholders who are underwriters within the meaning of Section 2(11) of the Securities Act will be subject to the prospectus delivery requirements of the
Securities Act.
The aggregate proceeds to each selling stockholder from the sale of the common stock offered by them will be the purchase
price of the common stock less discounts or commissions, if any. Each of the selling stockholders reserves the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of common stock
to be made directly or through agents. We will not receive any of the proceeds from this offering.
Broker-dealers engaged by the selling
stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in
amounts to be negotiated. The selling stockholders do not expect these commissions and discounts to exceed what is customary in the types of transactions involved. Any profits on the resale of shares by a broker-dealer acting as principal might be
deemed to be underwriting discounts or commissions under the Securities Act. Discounts, concessions, commissions and similar selling expenses, if any, attributable to the sale of shares will be borne by a selling stockholder. The selling
stockholders may agree to indemnify any agent, dealer or broker-dealer that participates in transactions involving sales of the shares if liabilities are imposed on that person under the Securities Act.
Under the registration agreement, we are required to pay certain fees and expenses incurred by us incident to the registration of the shares.
We have agreed to indemnify the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act. The selling stockholders have severally agreed to indemnify us against certain losses,
claims, damages and liabilities, including liabilities under the Securities Act.
The selling stockholders may from time to time pledge or
grant a security interest in some or all of the shares owned by them and, if they default in the performance of any of their secured obligations, the pledgees or
9
secured parties may offer and sell the shares from time to time under this prospectus as it may be supplemented from time to time, or under an amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus.
To the extent required, the shares to be sold, the names of the selling stockholders, the respective purchase prices and public offering
prices, the names of any agents, dealer or underwriter, any applicable commissions or discounts with respect to a particular offer will be set forth in a supplement to this prospectus or, if appropriate, a post-effective amendment to the
registration statement that includes this prospectus.
In order to comply with the securities laws of some states, if applicable, the
common stock may be sold in these jurisdictions only through registered or licensed brokers or dealers. In addition, in some states the common stock may not be sold unless it has been registered or qualified for sale or an exemption from
registration or qualification requirements is available and is complied with.
The anti-manipulation rules of Regulation M under the
Exchange Act may apply to sales of shares in the market and to the activities of the founding members and their affiliates. In addition, we will make copies of this prospectus (as it may be supplemented or amended from time to time) available to the
selling stockholders for the purpose of satisfying the prospectus delivery requirements of the Securities Act. The selling stockholders may indemnify any broker-dealer that participates in transactions involving the sale of the shares against
certain liabilities, including liabilities arising under the Securities Act.
We have agreed with the selling stockholders to use
reasonable best efforts to keep the registration statement of which this prospectus constitutes a part effective until the earlier of (1) such time as all of the shares covered by this prospectus have been disposed of pursuant to and in
accordance with the registration statement or (2) the date on which the shares may be sold pursuant to Rule 144 of the Securities Act without restriction.
Upon our notification by a selling stockholder that any material arrangement has been entered into with an underwriter or broker-dealer for
the sale of shares through a block trade, special offering, exchange distribution, secondary distribution or a purchase by an underwriter or broker-dealer, we will file a supplement to this prospectus, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing certain material information, including:
|
|
|
the name of the selling stockholder;
|
|
|
|
the number of shares being offered;
|
|
|
|
the terms of the offering;
|
|
|
|
the names of the participating underwriters, broker-dealers or agents;
|
|
|
|
any discounts, commissions or other compensation paid to underwriters or broker-dealers and any discounts, commission or concessions allowed or re-allowed or paid by any underwriters to dealers;
|
|
|
|
the public offering price; and
|
|
|
|
other material terms of the offering.
|
LEGAL MATTERS
The validity of the common stock offered hereby will be passed on for us by Bryan Cave LLP, Denver, Colorado.
10
EXPERTS
The consolidated financial statements incorporated in this Prospectus by reference from the Companys Annual Report on Form 10-K, and the
effectiveness of the Companys internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by
reference. Such consolidated financial statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file electronically with the Securities and Exchange Commission our Annual Reports on
Form 10-K,
Quarterly Reports on
Form 10-Q,
Current Reports on
Form 8-K,
and amendments to those reports filed or
furnished pursuant to Section 13(a) or 15(d) of the Exchange Act. You can request copies of such documents by contacting our Investor Relations Department at National CineMedia, Inc., 9110 E. Nichols Avenue, Suite 200, Centennial, CO
80112-3405, calling 1-800-844-0935 or sending an email to investors@ncm.com. We also make available on or through our website, at
www.ncm.com
, free of charge, copies of these reports as soon as reasonably practicable after we electronically
file or furnish it to the SEC.
Our website and the information contained therein or connected thereto shall not be deemed to be
incorporated into this prospectus or the registration statement of which this prospectus forms a part, and you should not rely on any such information in making your decision whether to purchase our securities.
You may read and copy any document we file at the following location at the SEC:
100 F Street, N.E.
Room 1580
Washington, D.C. 20549
You can
also obtain copies of this information by mail from the Public Reference Room of the SEC, 100 F Street, N.E., Room 1580, Washington D.C. 20549, at prescribed rates. You may obtain information on the operation of the Public Reference Room by calling
the SEC at (800) SEC-0330.
The SEC also maintains a website that contains reports, proxy statements and other information about
issuers, like NCM Inc., that file electronically with the SEC. The address of that site is
http://www.sec.gov
.
We have filed with
the SEC a registration statement on Form S-3 that registers the securities the selling stockholders are offering. The registration statement, including the attached exhibits and schedules, contains additional relevant information about us and our
securities. The rules and regulations of the SEC allow us to omit certain information included in the registration statement from this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference information into this prospectus. This means that we can disclose important
information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this prospectus, except for any information that is superseded by information that is
included directly in this document.
This prospectus includes by reference the documents listed below that we have previously filed with
the SEC and that are not included in or delivered with this document. They contain important information about us and our financial condition.
11
|
|
|
Our Annual Report on
Form 10-K
for the year ended December 26, 2013, filed with the SEC on February 21, 2014 (including the portions of our proxy statement for our
2014 annual meeting of stockholders incorporated by reference therein);
|
|
|
|
Our Current Reports on
Form 8-K,
filed with the SEC on December 31, 2013, January 3, 2014, January 22, 2014, February 28,
2014, March 7, 2014 and March 17, 2014; and
|
|
|
|
The description of our common stock that is contained in our Registration Statement on Form 8-A filed with the SEC on February 5, 2007, including any amendment or reports filed for the purpose of updating such
description.
|
All documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date of this prospectus and prior to the termination of this offering shall be deemed to be incorporated by reference herein and to be a part of this prospectus from the date of filing of such documents, excluding any information furnished under
Item 2.02 or Item 7.01 of any Current Report on Form 8-K and exhibits furnished on such form that are related to such items. We also specifically incorporate by reference any documents filed by us with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of the initial registration statement and prior to the effectiveness of the registration statement. Any statement contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You can obtain any of the documents incorporated by reference in this document from us without charge, excluding any exhibits to those
documents unless the exhibit is specifically incorporated by reference as an exhibit to this prospectus. You can obtain documents incorporated by reference in this prospectus by requesting them in writing or by telephone from us at the following
address:
Investor Relations
National CineMedia, Inc.
9110
East Nichols Avenue, Suite 200
Centennial, CO 80112-3405
1-800-844-0935
We have not, and
the selling stockholders have not, authorized anyone to give any information or make any representation about us that is different from, or in addition to, that contained in this prospectus or in any of the materials that we have incorporated by
reference into this document. Therefore, if anyone does give you information of this sort, you should not rely on it. If you are in a jurisdiction where offers to sell, or solicitations of offers to purchase, the securities offered by this document
are unlawful, or if you are a person to whom it is unlawful to direct these types of activities, then the offer presented in this document does not extend to you.
12
National CineMedia, Inc.
69,543,579 Shares of
Common Stock
PROSPECTUS
April 4, 2014
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses payable by the registrant in connection with the issuance and distribution of the securities, other
than underwriting discounts and commissions. The registrant will bear all of such expenses. All the amounts shown are estimates, except the registration fee.
|
|
|
|
|
Registration fee
|
|
$
|
8,542.33
|
|
Accounting fees and expenses
|
|
|
20,000.00
|
|
Legal fees and expenses
|
|
|
10,000.00
|
|
Miscellaneous
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
38,542.33
|
|
|
|
|
|
|
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law (the DGCL) grants us the power to limit the personal liability of our
directors or our stockholders for monetary damages for breach of a fiduciary duty. Article Sixth of our Amended and Restated Certificate of Incorporation eliminates the personal liability of directors for monetary damages for actions taken as a
director, except for liability for breach of duty of loyalty; for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law; under Section 174 of the DGCL (unlawful dividends); or for transactions from
which the director derived improper personal benefit.
Under Section 145 of the DGCL, a corporation has the power to indemnify
directors and officers under certain prescribed circumstances against certain costs and expenses, actually and reasonably incurred in connection with any action, suit or proceeding, whether civil, criminal, administrative or investigative, to which
any of them is a party by reason of his being a director or officer of the corporation if it is determined that he acted in accordance with the applicable standard of conduct set forth in such statutory provision. Article VI of our Amended and
Restated Bylaws requires us to indemnify any current or former directors or officers to the fullest extent permitted by the DGCL, and to pay expenses incurred in defending any such proceeding in advance of its final disposition upon delivery to us
of an undertaking, by or on behalf of an indemnified person, to repay all amounts so advanced if it should be determined ultimately that such person is not entitled to be indemnified under this section or otherwise. Article VI also permits us to
indemnify any current or former employees or agents to the fullest extent permitted by the DGCL, and to pay expenses incurred in defending any such proceeding in advance of its final disposition upon such terms and conditions, if any, as we deem
appropriate.
Section 145 of the DGCL authorizes a corporation to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the corporation against any liability asserted against and incurred by such person in any such capacity, or arising out of such persons status as such. As permitted by Section 145 and
Section 6.08 of our Amended and Restated Bylaws, we carry insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity as directors and officers.
We have entered into separate indemnification agreements with each of our directors and officers, which may be broader than the specific
indemnification provisions contained in the DGCL. These indemnification agreements may require us, among other things, to indemnify our directors and officers against liabilities that may arise by reason of their status or service as directors or
officers, other than liabilities arising from willful misconduct. These indemnification agreements may also require us to advance any expenses incurred by the directors or officers as a result of any proceeding against them as to which they could be
indemnified and to obtain directors and officers insurance, if available on reasonable terms.
II-1
The indemnification rights set forth above shall not be exclusive of any other right which an
indemnified person may have or hereafter acquire under any statute, provision of our Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
ITEM 16. EXHIBITS.
|
|
|
Exhibit
No.
|
|
Description
|
|
|
4.1
|
|
Amended and Restated Certificate of Incorporation. (1)
|
|
|
4.2
|
|
Amended and Restated Bylaws. (2)
|
|
|
4.3
|
|
National CineMedia, LLC Third Amended and Restated Limited Liability Company Operating Agreement dated as of February 13, 2007, by and among American Multi-Cinema, Inc., Cinemark Media, Inc., Regal CineMedia Holdings, LLC and
National CineMedia, Inc. (3)
|
|
|
4.4
|
|
First Amendment to Third Amended and Restated Limited Liability Company Operating Agreement of National CineMedia, LLC dated as of March 16, 2009, by and among American Multi-Cinema, Inc., Cinemark Media, Inc., Regal CineMedia
Holdings, LLC and National CineMedia, Inc. (4)
|
|
|
4.5
|
|
Second Amendment to Third Amended and Restated Limited Liability Company Operating Agreement of National CineMedia, LLC dated as of August 6, 2010, by and among American Multi-Cinema, Inc., Cinemark Media, Inc., Regal CineMedia
Holdings, LLC and National CineMedia, Inc. (5)
|
|
|
4.6
|
|
Third Amendment to Third Amended and Restated Limited Liability Company Operating Agreement of National CineMedia, LLC dated as of September 3, 2013, by and among American Multi-Cinema, Inc., AMC Showplace Theatres, Inc., Cinemark
Media, Inc., Regal CineMedia Holdings, LLC, Regal Cinemas, Inc. and National CineMedia, Inc. (6)
|
|
|
4.7
|
|
Common Unit Adjustment Agreement dated as of February 13, 2007, by and among National CineMedia, Inc., National CineMedia, LLC, Regal CineMedia Holdings, LLC, American Multi-Cinema, Inc., Cinemark Media, Inc, Regal Cinemas, Inc. and
Cinemark USA, Inc. (Confidential treatment granted as to certain portions, which portions were omitted and filed separately with the Commission.) (7)
|
|
|
4.8
|
|
Director Designation Agreement dated as of February 13, 2007, by and among National CineMedia, Inc., American Multi-Cinema, Inc., Cinemark Media, Inc. and Regal CineMedia Holdings, LLC. (8)
|
|
|
4.9
|
|
Registration Rights Agreement dated as of February 13, 2007, by and among National CineMedia, Inc., American Multi-Cinema, Inc., Regal CineMedia Holdings, LLC and Cinemark Media, Inc. (9)
|
|
|
5.1
|
|
Opinion of Bryan Cave LLP.*
|
|
|
23.1
|
|
Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm.*
|
|
|
23.2
|
|
Consent of Bryan Cave LLP (included in Exhibit 5.1).*
|
|
|
24.1
|
|
Powers of Attorney of National CineMedia, Inc. **
|
|
|
24.2
|
|
Powers of Attorney of National CineMedia, Inc.*
|
(1)
|
Incorporated by reference to Exhibit 3.1 from the Registrants Quarterly Report on Form 10-Q (File No. 001-33296) filed on May 6, 2011.
|
(2)
|
Incorporated by reference to Exhibit 4.2 from the Registrants Registration Statement on Form S-8 (File No. 333-140652) filed on February 13, 2007.
|
(3)
|
Incorporated by reference to Exhibit 10.1 from the Registrants Current Report on Form 8-K (File No. 001-33296) filed on February 16, 2007.
|
(4)
|
Incorporated by reference to Exhibit 10.1.1 from the Registrants Quarterly Report on Form 10-Q (File No. 001-33296) filed on August 7, 2009.
|
(5)
|
Incorporated by reference to Exhibit 10.1 from the Registrants Current Report on Form 8-K (File No. 001-33296) filed on August 10, 2010.
|
II-2
(6)
|
Incorporated by reference to Exhibit 10.1.3 from the Registrants Current Report on Form 8-K (File No. 001-33296) filed on September 9, 2013.
|
(7)
|
Incorporated by reference to Exhibit 10.6 from the Registrants Current Report on Form 8-K (File No. 001-33296) filed on February 16, 2007.
|
(8)
|
Incorporated by reference to Exhibit 10.10 from the Registrants Current Report on Form 8-K (File No. 001-33296) filed on February 16, 2007.
|
(9)
|
Incorporated by reference to Exhibit 10.11 from the Registrants Current Report on Form 8-K (File No. 001-33296) filed on February 16, 2007.
|
ITEM 17. UNDERTAKINGS.
(a) The undersigned
registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act.
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the
effective registration statement.
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however
, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the
registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section
15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities Act to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the
II-3
Securities Act of 1933 shall be deemed to be part of and included n the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date
of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering
thereof.
Provided, however
, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of
the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of
determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed
pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing
prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) Insofar as
indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to any charter provision, by law, contract, arrangement, statute, or otherwise, the
registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted against such registrant by
such director, officer or controlling person in connection with the securities being registered, such registrant will, unless in the opinion of counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this Post-Effective Amendment No. 3 to Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of
Centennial, State of Colorado, on the 4
th
day of April, 2014.
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National CineMedia, Inc.
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By:
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*
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Kurt C. Hall
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President, Chief Executive Officer and
Chairman
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Post-Effective Amendment
No. 3 to Registration Statement on Form S-3 has been signed by the following persons in the capacities indicated on the 4
th
day of April, 2014.
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Name
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Title
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*
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President, Chief Executive Officer and Chairman
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Kurt C. Hall
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(Principal Executive Officer)
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*
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Senior Vice President and Interim Co-Chief Financial Officer
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David J. Oddo
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(Principal Financial Officer)
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*
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Senior Vice President and Interim Co-Chief Financial Officer
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Jeffrey T. Cabot
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(Principal Accounting Officer)
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*
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Director
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Lawrence A. Goodman
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*
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Director
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David R. Haas
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*
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Director
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James R. Holland, Jr.
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*
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Director
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Stephen L. Lanning
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*
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Director
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Paula Williams Madison
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II-5
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Name
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Title
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*
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Director
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Amy E. Miles
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*
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Director
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Lee Roy Mitchell
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*
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Director
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Craig R. Ramsey
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*
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Director
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Scott N. Schneider
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*By:
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/s/ Ralph E. Hardy
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Attorney-in-fact
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Ralph E. Hardy
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II-6
EXHIBIT INDEX
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Exhibit
No.
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Description
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4.1
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Amended and Restated Certificate of Incorporation. (1)
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4.2
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Amended and Restated Bylaws. (2)
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4.3
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National CineMedia, LLC Third Amended and Restated Limited Liability Company Operating Agreement dated as of February 13, 2007, by and among American Multi-Cinema, Inc., Cinemark Media, Inc., Regal CineMedia Holdings, LLC and
National CineMedia, Inc. (3)
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4.4
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First Amendment to Third Amended and Restated Limited Liability Company Operating Agreement of National CineMedia, LLC dated as of March 16, 2009, by and among American Multi-Cinema, Inc., Cinemark Media, Inc., Regal CineMedia
Holdings, LLC and National CineMedia, Inc. (4)
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4.5
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Second Amendment to Third Amended and Restated Limited Liability Company Operating Agreement of National CineMedia, LLC dated as of August 6, 2010, by and among American Multi-Cinema, Inc., Cinemark Media, Inc., Regal CineMedia
Holdings, LLC and National CineMedia, Inc. (5)
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4.6
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Third Amendment to Third Amended and Restated Limited Liability Company Operating Agreement of National CineMedia, LLC dated as of September 3, 2013, by and among American Multi-Cinema, Inc., AMC Showplace Theatres, Inc., Cinemark
Media, Inc., Regal CineMedia Holdings, LLC, Regal Cinemas, Inc. and National CineMedia, Inc. (6)
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4.7
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Common Unit Adjustment Agreement dated as of February 13, 2007, by and among National CineMedia, Inc., National CineMedia, LLC, Regal CineMedia Holdings, LLC, American Multi-Cinema, Inc., Cinemark Media, Inc, Regal Cinemas, Inc. and
Cinemark USA, Inc. (Confidential treatment granted as to certain portions, which portions were omitted and filed separately with the Commission.) (7)
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4.8
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Director Designation Agreement dated as of February 13, 2007, by and among National CineMedia, Inc., American Multi-Cinema, Inc., Cinemark Media, Inc. and Regal CineMedia Holdings, LLC. (8)
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4.9
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Registration Rights Agreement dated as of February 13, 2007, by and among National CineMedia, Inc., American Multi-Cinema, Inc., Regal CineMedia Holdings, LLC and Cinemark Media, Inc. (9)
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5.1
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Opinion of Bryan Cave LLP.*
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23.1
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Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm.*
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23.2
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Consent of Bryan Cave LLP (included in Exhibit 5.1).*
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24.1
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Powers of Attorney of National CineMedia, Inc.**
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24.2
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Powers of Attorney of National CineMedia, Inc.*
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** Previously filed.
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(1) Incorporated by reference to Exhibit 3.1 from the Registrants Quarterly Report on Form 10-Q (File No.
001-33296) filed on May 6, 2011.
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(2) Incorporated by reference to Exhibit 4.2 from the Registrants Registration Statement on Form S-8 (File
No. 333-140652) filed on February 13, 2007.
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(3) Incorporated by reference to Exhibit 10.1 from the Registrants Current Report on Form 8-K (File No.
001-33296) filed on February 16, 2007.
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(4) Incorporated by reference to Exhibit 10.1.1 from the Registrants Quarterly Report on Form 10-Q (File
No. 001-33296) filed on August 7, 2009.
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(5) Incorporated by reference to Exhibit 10.1 from the Registrants Current Report on Form 8-K (File No.
001-33296) filed on August 10, 2010.
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(6) Incorporated by reference to Exhibit 10.1.3 from the Registrants Current Report on Form 8-K (File No.
001-33296) filed on September 9, 2013.
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(7) Incorporated by reference to Exhibit 10.6 from the Registrants Current Report on Form 8-K (File No.
001-33296) filed on February 16, 2007.
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II-7
(8)
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Incorporated by reference to Exhibit 10.10 from the Registrants Current Report on Form 8-K (File No. 001-33296) filed on February 16, 2007.
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(9)
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Incorporated by reference to Exhibit 10.11 from the Registrants Current Report on Form 8-K (File No. 001-33296) filed on February 16, 2007.
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II-8
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