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EXHIBIT 10.11
The following officers have executed Deferred Compensation Agreements, a form of
which follows, with Carmike Cinemas, Inc. as of the dates indicated below:
Officer Date Executed
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Xxxxxxx X. Xxxxxxx April 16, 1990
Xxxxxx X. Xxxxxx July 16, 0000
Xxxx X. XxxXxx April 16, 1990
Xxxxxxx X. Xxxxx April 16, 1990
Xxx Xxxxxxxx June 30, 1998
H. Xxxxxxx Xxxxxxx April 16, 1990
DEFERRED COMPENSATION AGREEMENT
This Agreement, made and entered as of the ______ day of _______, by
and between CARMIKE CINEMAS, INC., a Delaware corporation with its principal
office in Columbus, Georgia (the "Employer"), and ______________, a resident of
______________, (the "Employee").
WITNESSETH:
WHEREAS, Employee is a valued executive employee of Employer; and
WHEREAS, Employer wishes to aid Employee in providing for his
retirement and to provide benefits upon Employee's death or disability; and
WHEREAS, Employer will provide these benefits to Employee in
accordance with the terms and provisions of this Deferred Compensation Agreement
(the "Agreement") and a related trust to be contemporaneously established (the
"Trust") the terms of which are hereinafter described; and
WHEREAS, it is intended that this Agreement and related Trust shall
qualify as a "top hat" plan for key employees; and
WHEREAS, it is intended that payments by Employer under this Agreement
to the Trust shall, for federal and state income tax purposes, be included in
Employee's income and deducted by Employer in the year paid.
NOW, THEREFORE, in consideration of the mutual promises and
obligations contained herein, the parties hereto agree as follows:
I. DEFERRED COMPENSATION.
(a) Contributions. Upon the execution of this Agreement and the
Trust, Employer shall pay _________ DOLLARS ($ __________ ) to the Trust for the
use and benefit of Employee, as more specifically described in the Trust. In
addition, for the calendar quarter beginning _______________, and within
forty-five (45) days following the end of each succeeding calendar quarter
during which Employee shall be employed by Employer for the entire calendar
quarter, but subject to termination as described in paragraph (b) of this
Article I or Article IV, Employer shall make payments equal to ten percent (10%)
of Employee's taxable compensation for such calendar quarter (as same shall be
reflected by Employer for the calendar year on Employee's Form W-2 or Form
1099), in the following manner:
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(1) If Employee is eligible to make a tax deductible
contribution to an Individual Retirement Account ("XXX") for a calendar year as
provided for in section 408 of the Internal Revenue Code of 1986, as amended
(the "Code"), Employer shall, on or before April 15 of the next calendar year,
pay directly to an XXX established for the benefit of Employee an amount equal
to the maximum amount deductible by Employee for federal income tax purposes as
a contribution to an XXX for such calendar year;
(2) Employer shall withhold an amount, as determined by
Employer in its best judgment, which represents the appropriate amount of
federal and state income taxes to be withheld on the amount of deferred
compensation paid hereunder; and (3) The remaining amount of deferred
compensation, after deducting the amounts described in (1) and (2) above, shall
be paid within forty-five (45) days after the end of each calendar quarter, to
the Trustee of the Trust established by Employee, the general terms of which are
described in Article II.
(b) Termination of Contributions. Notwithstanding that Employee
may continue to be employed by Employer and any other provision of this
Agreement to the contrary, payments by Employer equal to ten percent (10%) of
Employee's taxable compensation, as hereinabove described in paragraph (a) of
this Article I, shall cease as of the end of the calendar quarter immediately
prior to the first date that benefits become distributable from the Trust.
II. SUMMARY OF TRUST PROVISIONS.
The Trust created by Employer shall be an irrevocable trust
established by Employer solely for the benefit of Employee. All expenses of
maintaining the Trust shall be borne either by the Trust or by Employer. The
Trustee of the Trust shall receive from Employer the amount hereinabove provided
for under Article I, and shall hold, manage, invest and administer the funds
received and the income earned thereon according to the terms and conditions
contained in the Trust. With respect to the management, investment and
administration of the Trust, and subject to the terms and definitions therein,
the Trust shall provide the following:
(a) Trust Income. All Trust income shall be accumulated and added
to principal.
(b) Employee Treated as Owner. Employee, as beneficiary of the
Trust, shall be treated as the "owner" of the Trust as that term is used in
section 671 of the Code, and the Trust shall be a "grantor trust" for Federal
income tax purposes with the taxable income earned by the Trust being taxed to
Employee.
(c) Irrevocable Trust. The Trust shall be irrevocable and the
Trust assets, whether income or principal, shall not be subject to the claims of
creditors of Employer, Employee or any beneficiary of the Trust.
(d) Anti-alienation. No right, benefit, or payment under the
Trust shall be subject to sale, anticipation, alienation or assignment by
Employee or his beneficiaries.
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(e) No Continued Employment Rights. Employee shall have no right
to continued employment with Employer on account of this Agreement or Employee's
status as a beneficiary of the Trust.
(f) Events of Distribution. Unless Employee elects in writing an
earlier commencement date for the payment of benefits from the Trust at any time
after Employee attains age 60, Employee, or his beneficiaries, shall have no
right or claim to any benefits from the Trust until Employee attains age 70,
becomes totally disabled or dies. Upon the happening of any such distribution
event, Employee or Employee's beneficiary, as the case may be, shall be entitled
to receive payments from the Trust, as described in paragraph (g) of this
Article.
(g) Payment of Benefits. Except as may be modified by the joint
and survivor annuity provisions, the Trust shall provide that upon Employee's
attainment of age 70, or upon his earlier death or total disability, or upon
Employee's election to commence the payment of benefits after attaining age 60,
payments from the Trust to Employee or his beneficiary shall be made, commencing
within sixty (60) days after any such event, as follows:
(1) One-half (1/2) of the benefits shall be paid in the form
of a life annuity with payments guaranteed for five (5) years should Employee
not live to receive the annuity payments for at least five (5) years, with any
unpaid guaranteed portion being paid to Employee's designated beneficiary; and
(2) The remaining one-half (1/2) of the benefits shall be
paid either as an annuity or in a lump sum payment, as designated in writing by
Employee.
In accordance with ERISA Section 206 (a), Employee hereby elects that
the payment of benefits under the Trust shall commence at such time as
hereinabove provided for in this paragraph (g) and in Article V of the Trust,
and not as set forth in ERISA Section 206 (a).
(h) Designation of Method of Payment. Except as may be modified
by the joint and survivor annuity provisions, Employee shall designate the
method of payment of one-half (1/2) of the benefits from the Trust, as
hereinabove described in paragraph (g)(2), by executing a "Designation of Method
of Benefit Payment" form and delivering it to the Trustee. At any time prior to
the commencement of the payment of benefits as provided for under paragraph (h),
the "Designation of Method of Benefit Payment" form may be modified, altered, or
revoked as to any benefits payable under paragraph (g) (2) of the Trust. If
Employee fails to execute a "Designation of Method of Benefit Payment" form and
deliver it to the Trustee, the Trustee shall pay over and distribute such
one-half (1/2) portion of the Trust in one lump-sum to Employee or his
beneficiary, as the case may be.
The Trust shall provide that upon making any distribution to Employee,
the Trustee shall withhold from such distribution the amount, if any, required
to be withheld for federal, state and local taxes.
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(i) Joint and Survivor Annuity Requirements.
(1) Qualified Joint and Survivor Annuity. Unless an optional
form of benefit is selected pursuant to a qualified election within the 90-day
period ending on the annuity starting date, the benefits of Employee, if
Employee is married, will be paid in the form of a qualified joint and survivor
annuity, and if Employee is not married, Employee's benefits will be paid in the
form of a life annuity.
(2) Qualified Preretirement Survivor Annuity. If Employee
dies before the annuity starting date and has not selected an optional form of
benefit within the election period pursuant to a qualified election, then
Employee's full benefit under the Trust shall be applied toward the purchase of
an annuity for the life of the surviving spouse. The surviving spouse may elect
to have such annuity distributed within a reasonable period after Employee's
death.
(j) Designation of Beneficiary.
(1) Manner of Designation. In the event Employee dies before
receipt of all of his benefits under the Trust, Employee's beneficiary shall be
his spouse; provided, however, Employee may, from time to time, designate a
beneficiary other than his spouse if Employee's spouse consents irrevocably, in
writing, to such designation of Employee's beneficiary; acknowledges the effect
of such election; and such consent and acknowledgment and the spouse's signature
is witnessed by a Notary Public. Each beneficiary designation shall be on a form
furnished by the Trustee and will be effective only when filed with the Trustee
during Employee's lifetime. Each beneficiary designation filed by Employee with
the Trustee will revoke all such designations previously filed by him and such
revocation shall not require the consent of any previously designated
beneficiary. Any beneficiary designation previously made by Employee shall
automatically be revoked upon the marriage or remarriage of Employee. A spouse's
consent shall be valid only with respect to the specified beneficiary or
beneficiaries by Employee unless the spouse has consented to expressly permit
designations by Employee without the spouse's further consent. The spouse's
consent to any beneficiary designation made by Employee, once made, may not be
revoked by the spouse. Notwithstanding the foregoing, spousal consent to
Employee's beneficiary designation shall not be required if: (i) the spouse is
designated as the sole primary beneficiary by Employee, or (ii) it is
established to the satisfaction of the Trustee that spousal consent cannot be
obtained because there is no spouse, because the spouse cannot be located or
because of such other circumstances as may be prescribed in Regulations issued
by the Secretary of the Treasury. Any consent by a spouse or any determination
that the consent is not required above shall be effective only with respect to
such spouse.
(2) Failure to Designate Beneficiary. If Employee fails to
designate a beneficiary, or if the designated beneficiary dies before Employee
or before distribution of all of the benefits and there are no alternate
designated beneficiaries, the Trustee shall distribute such benefits to the
following persons in the following order of priority:
(i) The spouse of Employee, if then living, and if not,
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(ii) The estate of the last to die of Employee or any
designated beneficiary of Employee.
III. RESTRICTIONS.
No right or benefit under this Agreement or the Trust shall be subject
to anticipation, alienation, sale, assignment, pledge, encumbrance or charge,
and any attempt to anticipate, alienate, sell, assign, pledge, encumber or
charge the same shall be void. No right or benefit under this Agreement or the
Trust shall in any manner be subject to the debts, contracts, liabilities or
torts of the person entitled to such benefits. If Employee or a beneficiary of
Employee hereunder should become bankrupt or attempt to anticipate, alienate,
sell, assign, pledge, encumber or charge any right to a benefit under this
Agreement or the Trust then any benefits, provided for in this Agreement or the
Trust, shall cease. Employer or Trustee shall, in the discretion of Employer or
Trustee, as applicable, hold or apply such benefit or any part thereof on behalf
of Employee or the beneficiary or beneficiaries of Employee, in such manner as
Employer or Trustee may deem proper.
IV. TERMINATION OF AGREEMENT.
Except for the final payment by Employer for the calendar quarter
immediately preceding the calendar quarter during which Employee shall terminate
his employment with Employer or, if earlier, upon the first date that benefits
become distributable from the Trust, Employer's obligations under this Agreement
and the compensation provided for hereunder shall automatically cease upon such
event. This Agreement does not create a guaranteed term of employment, and
Employer may terminate Employee's employment at any time and with or without
cause.
V. MISCELLANEOUS.
(a) The captions or headings in this Agreement are made for
convenience and general reference only and shall not be construed to describe,
define or limit the scope or intent of the provisions of this Agreement.
(b) Any reference hereunder to the Employer shall expressly
be deemed to include the Employer's successor and assigns.
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IN WITNESS WHEREOF, Employer has caused this Agreement to be duly
executed by and through its duly authorized corporate officers, with its
corporate seal to be hereunto affixed, and Employee has hereunto set his hand
and seal as of the day and year first above written.
EMPLOYER:
CARMIKE CINEMAS, INC.
BY:
------------------------------------
Its:
-----------------------------------
ATTEST:
--------------------------------
Its:
-----------------------------------
(Corporate Seal)
EMPLOYEE:
----------------------------------(L.S.)
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DESIGNATION OF METHOD OF BENEFIT PAYMENT
I, ____________, hereby elect on behalf of myself, and my beneficiary
or beneficiaries, to receive one-half (1) of the benefits from that Trust
Agreement entered into as of the ______ day of ___________, by and between
Carmike Cinemas, Inc., as Grantor, and ________________, ______________________
and ________________, as Trustees, in the following form:
(a) One (1) lump sum payment.
(b) A life annuity described as follows:
[Please strike one of the above two options.]
Executed this _______________ day of ______________.
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SPOUSE'S CONSENT
I hereby consent to the designation made by my spouse to have all
benefits under the Trust payable to ____________________________________________
________________________________________________________________________________
Beneficiary(ies) as specified on my spouse's Designation form dated
_____________________________________________________. The benefits have been
explained to me, and I hereby acknowledge that I understand (1) that the effect
of such designation is to cause my spouse's benefits to be paid to a Beneficiary
other than me; (2) that such Beneficiary Designation is not valid unless I
consent to it; and (3) that my consent is irrevocable unless my spouse revokes
the Beneficiary Designation.
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Date Spouse's Signature
STATE OF GEORGIA
COUNTY OF MUSCOGEE
BEFORE ME, the undersigned authority, a Notary Public in and for said
County and State, on this day personally appeared, _____________________________
_________________________________________________, known to me to be the person
whose name is subscribed to the foregoing instrument, and I hereby acknowledge
that said person has signed said Consent as a free and voluntary act for the
uses and purposes therein set forth.
GIVEN UNDER MY HAND AND SEAL this ____________________ day of
__________________________, ______.
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Notary Public
My Commission Expires:
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