CKEC » Topics » 10. Miscellaneous Provisions

This excerpt taken from the CKEC 8-K filed Jun 4, 2009.

§ 10. Miscellaneous Provisions

10.1 Assignment. This Agreement is for the personal services of Executive, and the rights and obligations of Executive under this Agreement are not assignable in whole or in part by Executive without the prior written consent of Carmike. This Agreement is assignable in whole or in part to any parent, subsidiaries, or affiliates of Carmike, but only if such person or entity is financially capable of fulfilling the obligations of Carmike under this Agreement.

10.2 Disputes.

(a) Governing Law and Courts. This Agreement will be governed by and construed under the laws of the State of Georgia (without reference to the choice of law principles under the laws of the State of Georgia). Executive consents to jurisdiction and venue in the state and federal courts in the State of Georgia for any action arising from a dispute under this Agreement, and for any such action brought in such a court, expressly waives any defense Executive might otherwise have based on lack of personal jurisdiction or improper venue, or that the action has been brought in an inconvenient forum.

(b) Arbitration. Carmike shall have the right to obtain an injunction or other equitable relief in court arising out of Executive’s breach of the provisions of § 8 of this Agreement. However, any other controversy or claim arising out of or relating to this Agreement or any alleged breach of this Agreement shall be settled by binding arbitration in Columbus, Georgia in accordance with the rules of the American Arbitration Association then applicable to employment-related disputes and any judgment upon any award, which may include an award of damages, may be entered in the highest state or federal court having jurisdiction over such award. In the event of the termination of Executive’s employment, his or her sole remedy shall be arbitration under this § 10.2(b) and any award of damages shall be limited to recovery of lost compensation and benefits provided for in this Agreement. No punitive damages may be awarded to Executive. Carmike shall be responsible for paying all reasonable fees of the arbitrator.

10.3 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

 

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10.4 Headings; References. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. Any reference to a section (§) shall be to a section (§) of this Agreement unless there is an express reference to a section (§) of the Code or the Exchange Act, in which event the reference shall be to the Code or to the Exchange Act, whichever is applicable.

10.5 Attorneys Fees. If any action at law or in equity is necessary for Executive to enforce or interpret the terms of this Agreement with respect to claims related to his Protection Period, Carmike shall pay Executive’s reasonable attorneys’ fees and other reasonable expenses incurred with respect to such action, and such fees and expenses shall be paid on the date which is six (6) months and one (1) day after the date Executive has a “separation from service” (as “separation from service” is defined in Treas. Regs. § 1.409A-1(h)). To the extent that attorneys’ fees or expenses are incurred with respect to claims related to Executive’s Protection Period after such payment date, Carmike shall pay such additional fees and expenses on the first business day of each month following the date which is six (6) months and one (1) day after the date Executive has a separation from service. However, no payments shall be made after the third anniversary of the date the last applicable statute of limitations has run, and no payments shall be made for any expenses for a calendar year if Carmike cannot reasonably reimburse such expenses before December 31 of the following calendar year. If any other action is taken with respect to this Agreement, Carmike shall bear its own attorneys’ fees and expenses and Executive shall bear Executive’s own attorneys’ fees and expenses.

10.6 Amendments and Waivers. Except as otherwise specified in this Agreement, this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of Carmike and Executive.

10.7 Severability. Any provision of this Agreement held to be unenforceable under applicable law will be enforced to the maximum extent possible, and the balance of this Agreement will remain in full force and effect.

10.8 Entire Agreement. This Agreement constitutes the entire understanding and agreement of Carmike and Executive with respect to the transactions contemplated in this Agreement, and this Agreement supersedes all prior understandings and agreements between Carmike and Executive with respect to such transactions. The provisions of Sections 8, 9 and 10 of this Agreement shall survive the termination thereof in accordance with their terms.

10.9 Return of Company Property. All records, designs, patents, business plans, financial statements, manuals, memoranda, customer lists, computer data, customer information, and other property or information delivered to or compiled by Executive by or on behalf of Carmike or its representatives, vendors or customers shall be and remain the property of Carmike, and be subject at all times to its discretion and control. Upon the request of Carmike and, in any event, upon the termination of Executive’s employment with Carmike, Executive shall deliver all such materials to Carmike.

 

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10.10 Notices. Any notice required under this Agreement to be given by either Carmike or Executive will be in writing and will be deemed effectively given upon personal delivery to the party to be notified or five (5) days after deposit with the United States post office by registered or certified mail, postage prepaid, to the other party at the address set forth below or to such other address as either party may from time to time designate by ten (10) days advance written notice pursuant to this § 10.10. Any such written notice shall be directed as follows:

If to Carmike:

Carmike Cinemas, Inc.

1301 First Avenue

Columbus, Georgia 31901

Attention: General Counsel

If to Executive:

To Executive at his or her most recent

address provided by Executive to Carmike

10.11 Binding Effect. This Agreement shall be for the benefit of, and shall be binding upon, Carmike and Executive and their respective heirs, personal representatives, legal representatives, successors and assigns, subject, however, to the provisions in § 10.1 of this Agreement.

10.12 Compliance with § 409A of the Code. To the extent this Agreement is subject to § 409A of the Code, the Executive and Carmike intend all payments under this Agreement to comply with the requirements of such section, and this Agreement shall, to the extent practical, be operated and administered to effectuate such intent. To the extent necessary to avoid adverse tax consequences under § 409A of the Code, the timing of any payment under this Agreement shall be delayed by six months and one day in a manner consistent with § 409A(a)(2)(B)(i) of the Code.”

 

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IN WITNESS WHEREOF, Carmike and Executive have executed this Agreement effective as of this 4th day of June, 2009.

 

CARMIKE CINEMAS, INC.
By:  

 

  Lee Champion
  Senior Vice President, General Counsel and Secretary
EXECUTIVE

 

S. David Passman III

 

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This excerpt taken from the CKEC 8-K filed May 23, 2007.

Miscellaneous Provisions

4.1 Assignment. This Agreement is for the personal services of Executive, and the rights and obligations of Executive under this Agreement are not assignable in whole or in part by Executive without the prior written consent of Carmike. This Agreement is assignable in whole or in part to any parent, subsidiaries, or affiliates of Carmike, but only if such person or entity is financially capable of fulfilling the obligations of Carmike under this Agreement, and Carmike as part of any Change in Control which is made effective through a transaction for which there is a “closing” shall assign Carmike’s obligations under this Agreement to Carmike’s successor and such successor shall expressly agree to such assignment or Carmike on or before the Effective Date for such Change in Control shall (without any further action on the part of Executive) begin making the payments described in § 2.1(b) (in addition to and not in lieu of any other payments due Executive) and take the action called for in § 2.1(c) of

 

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this Agreement as if Executive had been terminated without Cause on the Effective Date for such Change in Control without regard to whether Executive’s employment actually has terminated.

4.2 Disputes.

(a) Governing Law and Courts. This Agreement will be governed by and construed under the laws of the State of Georgia (without reference to the choice of law principles under the laws of the State of Georgia). Executive consents to jurisdiction and venue in the state and federal courts in the State of Georgia which sit in Columbus, Georgia for any action arising from a dispute under this Agreement, and for any such action brought in such a court, expressly waives any defense Executive might otherwise have based on lack of personal jurisdiction or improper venue, or that the action has been brought in an inconvenient forum.

(b) Arbitration. Carmike shall have the right to obtain an injunction or other equitable relief arising out of Executive’s breach of the provisions of § 3 of this Agreement. However, any other controversy or claim arising out of or relating to this Agreement or any alleged breach of this Agreement shall be settled by binding arbitration in Columbus, Georgia in accordance with the rules of the American Arbitration Association then applicable to employment-related disputes and any judgment upon any award, which may include an award of damages, may be entered in the highest state or federal court having jurisdiction over such award. In the event of the termination of Executive’s employment, his or her sole remedy shall be arbitration under this § 4.2(b) and any award of damages shall be limited to recovery of lost compensation and benefits provided for in this Agreement. No punitive damages may be awarded to Executive. Carmike shall be responsible for paying all reasonable fees of the arbitrator.

4.3 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

4.4 Headings; References. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. Any reference to a section (§) shall be to a section (§) of this Agreement unless there is an express reference to a section (§) of the Code or the Exchange Act, in which event the reference shall be to the Code or to the Exchange Act, whichever is applicable.

4.5 Attorneys Fees. If any action at law or in equity is necessary for Executive to enforce or interpret the terms of this Agreement with respect to claims related to his or her Protection Period, Carmike shall pay Executive’s reasonable attorneys’ fees and other reasonable expenses incurred with respect to such action, and such fees and expenses shall be paid on the date which is six (6) months and one (1) day after the

 

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date Executive has a “separation from service” (as “separation from service” is defined in Treas. Regs. § 1.409A-1(h)). To the extent that attorneys’ fees or expenses are incurred with respect to claims related to Executive’s Protection Period after such payment date, Carmike shall pay such additional fees and expenses on the first business day of each month following the date which is six (6) months and one (1) day after the date Executive has a separation from service. If any other action is taken with respect to this Agreement, Carmike shall bear its own attorneys’ fees and expenses and Executive shall bear Executive’s own attorneys’ fees and expenses.

4.6 Amendments and Waivers. Except as otherwise specified in this Agreement, this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of Carmike and Executive.

4.7 Severability. Any provision of this Agreement held to be unenforceable under applicable law will be enforced to the maximum extent possible, and the balance of this Agreement will remain in full force and effect.

4.8 Entire Agreement. This Agreement constitutes the entire understanding and agreement of Carmike and Executive with respect to the transactions contemplated in this Agreement, and this Agreement supersedes all prior understandings and agreements between Carmike and Executive with respect to such transactions.

4.9 Notices. Any notice required under this Agreement to be given by either Carmike or Executive will be in writing and will be deemed effectively given upon personal delivery to the party to be notified or five (5) days after deposit with the United States post office by registered or certified mail, postage prepaid, to the other party at the address set forth below or to such other address as either party may from time to time designate by ten (10) days advance written notice pursuant to this § 4.9. Any such written notice shall be directed as follows:

 

If to Carmike:
Carmike Cinemas, Inc.
1301 First Avenue
Columbus, Georgia 331901
Attention: General Counsel
If to Executive:

To Executive at his or her most

recent address provided by Executive to Carmike

4.10 Binding Effect. This Agreement shall be for the benefit of, and shall be binding upon, Carmike and Executive and their respective heirs, personal representatives, legal representatives, successors and assigns, subject, however, to the provisions in § 4.1 of this Agreement.

 

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4.11 Not an Employment Contract. This Agreement is not an employment contract and shall not give Executive the right to continue in employment by Carmike for any period of time or from time to time. Moreover, this Agreement shall not adversely affect the right of Carmike to terminate Executive’s employment with or without cause at any time.

4.12 Term.

(a) General Rule. Subject to § 4.12(b), the initial term of this Agreement shall be a three (3) year term which starts on the date of this Agreement, and this initial term automatically shall be extended for one additional year on the second anniversary of the date of this Agreement and for one additional year on each anniversary date thereafter unless Carmike on or before any such anniversary date advises Executive that there will be no such extension on such anniversary date.

(b) Special Rule. If Executive has a right to any compensation or benefits under § 2 before the term of this Agreement expires under § 4.12(a), the term of this Agreement shall continue until Executive agrees that all of Carmike’s obligations to Executive under this Agreement have been satisfied in full or a court of competent jurisdiction makes a final determination that Carmike has no further obligations to Executive under this Agreement, whichever comes first.

(Signatures on next page)

 

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IN WITNESS WHEREOF, Carmike and Executive have executed this Agreement effective as of this      day of                     , 2007.

 

 

CARMIKE CINEMAS, INC.

 

By:

 

 

 

EXECUTIVE

 

 

 

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EXCERPTS ON THIS PAGE:

8-K
Jun 4, 2009
8-K
May 23, 2007
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