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EXHIBIT 10.22
DEFERRED COMPENSATION AGREEMENT
This Agreement, made and entered as of the 16th day of July, 1999, by
and between CARMIKE CINEMAS, INC., a Delaware corporation with its principal
office in Columbus, Georgia (the "Employer"), and XXXXXX X. XXXXXX, a resident
of Columbus, Georgia, (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 TWO THOUSAND SIX HUNDRED AND 00/100 DOLLARS
($2,600.00) to the Trust for the use and benefit of Employee, as more
specifically described in the Trust. In addition, for the calendar quarter
beginning October 1, 1999, 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 ss.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:
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Its:
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ATTEST:
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Its:
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(Corporate Seal)
EMPLOYEE:
--------------------------------------(L.S.)
XXXXXX X. XXXXXX
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DESIGNATION OF METHOD OF BENEFIT PAYMENT
I, XXXXXX X. XXXXXX, 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 16th day of July, 1999, by and between
Carmike Cinemas, Inc., as Grantor, and Xxxxxxx Xxxx Xxxxxxx, X. Xxx Champion,
III and Xxxxx X. Xxxxx, 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 November, 1999.
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XXXXXX X. XXXXXX
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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 _______________, 1999.
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Notary Public
My Commission Expires:
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