EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, made and executed effective as of the 11th day
of November, 2005, by and between CARMIKE CINEMAS, INC., a Delaware corporation
(the "Company"), and XXXXX X. XXXXXXX, an individual resident of the State of
California (the "Indemnitee").
WHEREAS, the Company is aware that, in order to induce highly competent
persons to serve the Company as directors or officers or in other capacities,
the Company must provide such persons with adequate protection through insurance
and indemnification against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of the Company;
WHEREAS, the Company recognizes that the increasing difficulty in obtaining
directors' and officers' liability insurance, the increases in the cost of such
insurance and the general reductions in the coverage of such insurance have
increased the difficulty of attracting and retaining such persons;
WHEREAS, the Board of Directors of the Company has determined that it is
essential to the best interests of the Company's stockholders that the Company
act to assure such persons that there will be increased certainty of such
protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify such persons to the fullest extent
permitted by applicable law so that they will continue to serve the Company free
from undue concern that they will not be so indemnified; and
WHEREAS, the Indemnitee is willing to serve, continue to serve, and take on
additional service for or on behalf of the Company on the condition that he/she
be so indemnified.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and
Indemnitee do hereby agree as follows:
1. SERVICE BY THE INDEMNITEE. The Indemnitee agrees to serve and/or
continue to serve as a director or officer of the Company faithfully and will
discharge his/her duties and responsibilities to the best of his/her ability so
long as the Indemnitee is duly elected or qualified in accordance with the
provisions of the Amended and Restated Certificate of Incorporation, as amended
(the "Certificate"), and Amended and Restated By-laws, as amended (the
"By-laws") of the Company and the General Corporation Law of the State of
Delaware, as amended (the "DGCL"), or until his/her earlier death, resignation
or removal. The Indemnitee may at any time and for any reason resign from such
position (subject to any other contractual obligation or other obligation
imposed by operation by law), in which event the Company shall have no
obligation under this Agreement to continue the Indemnitee in any such position.
Nothing in this Agreement shall confer upon the Indemnitee the right to continue
in the employ of the Company
or as a director of the Company or affect the right of the Company to terminate
the Indemnitee's employment at any time in the sole discretion of the Company,
with or without cause, subject to any contract rights of the Indemnitee created
or existing otherwise than under this Agreement.
2. INDEMNIFICATION. The Company shall indemnify the Indemnitee against all
Expenses (as defined below), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnitee as provided in this Agreement
to the fullest extent permitted by the Certificate, By-laws and DGCL or other
applicable law in effect on the date of this Agreement and to any greater extent
that applicable law may in the future from time to time permit. Without
diminishing the scope of the indemnification provided by this Section 2, the
rights of indemnification of the Indemnitee provided hereunder shall include,
but shall not be limited to, those rights hereinafter set forth, except that no
indemnification shall be paid to the Indemnitee:
(a) on account of any suit in which judgment is rendered against the
Indemnitee for disgorgement of profits made from the purchase or sale by
the Indemnitee of securities of the Company pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934, as amended (the
"Act"), or similar provisions of any federal, state or local statutory law;
(b) on account of conduct of the Indemnitee which is finally adjudged
by a court of competent jurisdiction to have been knowingly fraudulent or
to constitute willful misconduct;
(c) in any circumstance where such indemnification is expressly
prohibited by applicable law;
(d) with respect to liability for which payment is actually made to
the Indemnitee under a valid and collectible insurance policy or under a
valid and enforceable indemnity clause, By-law or agreement (other than
this Agreement), except in respect of any liability in excess of payment
under such insurance, clause, By-law or agreement;
(e) if a final decision by a court having jurisdiction in the matter
shall determine that such indemnification is not lawful (and, in this
respect, both the Company and the Indemnitee have been advised that it is
the position of the Securities and Exchange Commission that indemnification
for liabilities arising under the federal securities laws is against public
policy and is, therefore, unenforceable, and that claims for
indemnification should be submitted to the appropriate court for
adjudication); or
(f) in connection with any proceeding by the Indemnitee against the
Company or its directors, officers, employees or other Indemnitees, (i)
unless such indemnification is expressly required to be made by law, (ii)
unless the proceeding was authorized by the Board of Directors of the
Company, (iii) unless such indemnification is provided by the Company, in
its sole discretion, pursuant
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to the powers vested in the Company under applicable law, or (iv) except as
provided in Sections 11 and 13 hereof.
3. ACTIONS OR PROCEEDINGS OTHER THAN AN ACTION BY OR IN THE RIGHT OF THE
COMPANY. The Indemnitee shall be entitled to the indemnification rights provided
in this Section 3 if the Indemnitee was or is a party or is threatened to be a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative in nature, other than
an action by or in the right of the Company, by reason of the fact that the
Indemnitee is or was a director, officer, employee, agent or fiduciary of the
Company, or is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary of any other entity, including, but not
limited to, another corporation, partnership, limited liability company,
employee benefit plan, joint venture, trust or other enterprise, or by reason of
any act or omission by him/her in such capacity. Pursuant to this Section 3, the
Indemnitee shall be indemnified against all Expenses, judgments, penalties
(including excise and similar taxes), fines and amounts paid in settlement which
were actually and reasonably incurred by the Indemnitee in connection with such
action, suit or proceeding (including, but not limited to, the investigation,
defense or appeal thereof), if the Indemnitee acted in good faith and in a
manner the Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his/her conduct was unlawful.
4. ACTIONS BY OR IN THE RIGHT OF THE COMPANY. The Indemnitee shall be
entitled to the indemnification rights provided in this Section 4 if the
Indemnitee was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding brought by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that the Indemnitee is or was a director, officer, employee, agent or fiduciary
of the Company, or is or was serving at the request of the Company as a
director, officer, employee, agent or fiduciary of another entity, including,
but not limited to, another corporation, partnership, limited liability company,
employee benefit plan, joint venture, trust or other enterprise, or by reason of
any act or omission by him/her in any such capacity. Pursuant to this Section 4,
the Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by him/her in connection with the defense or settlement of such action,
suit or proceeding (including, but not limited to the investigation, defense or
appeal thereof), if the Indemnitee acted in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company; provided however, that no such indemnification shall be made in
respect of any claim, issue, or matter as to which the Indemnitee shall have
been adjudged to be liable to the Company, unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such
action, suit or proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, the Indemnitee is fairly and reasonably entitled to be indemnified
against such Expenses actually and reasonably incurred by him/her which such
court shall deem proper.
5. GOOD FAITH DEFINITION. For purposes of this Agreement, the Indemnitee
shall be deemed to have acted in good faith and in a manner the Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, or, with respect to any criminal action or proceeding to have had no
reasonable cause to believe the Indemnitee's conduct was unlawful, if such
action was based on (i) the records or books of the accounts of the Company or
other
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enterprise, including financial statements; (ii) information supplied to the
Indemnitee by the officers of the Company or other enterprise in the course of
their duties; (iii) the advice of legal counsel for the Company or other
enterprise; or (iv) information or records given in reports made to the Company
or other enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Company or other
enterprise.
6. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY. Notwithstanding the
other provisions of this Agreement, to the extent that the Indemnitee has served
on behalf of the Company as a witness or other participant in any class action
or proceeding, or has been successful, on the merits or otherwise, in defense of
any action, suit or proceeding referred to in Section 3 and 4 hereof, or in
defense of any claim, issue or matter therein, including, but not limited to,
the dismissal of any action without prejudice, the Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by the
Indemnitee in connection therewith, regardless of whether or not the Indemnitee
has met the applicable standards of Section 3 or 4 and without any determination
pursuant to Section 8.
7. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of the Expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnitee in connection with the
investigation, defense, appeal or settlement of such suit, action, investigation
or proceeding described in Section 3 or 4 hereof, but is not entitled to
indemnification for the total amount thereof, the Company shall nevertheless
indemnify the Indemnitee for the portion of such Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by the
Indemnitee to which the Indemnitee is entitled.
8. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. (a) To
obtain indemnification under this Agreement, Indemnitee shall submit to the
Company a written request, including documentation and information which is
reasonably available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification. The
Secretary of the Company shall, promptly upon receipt of a request for
indemnification, advise the Board of Directors in writing that Indemnitee has
requested indemnification. Any Expenses incurred by the Indemnitee in connection
with the Indemnitee's request for indemnification hereunder shall be borne by
the Company. The Company hereby indemnifies and agrees to hold the Indemnitee
harmless for any Expenses incurred by Indemnitee under the immediately preceding
sentence irrespective of the outcome of the determination of the Indemnitee's
entitlement to indemnification.
(b) Upon written request by the Indemnitee for indemnification pursuant to
Section 3 or 4 hereof, the entitlement of the Indemnitee to indemnification
pursuant to the terms of this Agreement shall be determined by the following
person or persons, who shall be empowered to make such determination: (i) if a
Change in Control (as hereinafter defined) shall have occurred, by Independent
Counsel (as hereinafter defined) (unless the Indemnitee shall request in writing
that such determination be made by the Board of Directors (or a committee
thereof) in the manner provided for in clause (ii) of this Section 8(b)) in a
written opinion to the Board of Directors, a copy of which shall be delivered to
the Indemnitee; or (ii) if a Change in Control shall not have occurred, (A)(1)
by the Board of Directors of the Company, by a majority vote of
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Disinterested Directors (as hereinafter defined) even though less than a quorum,
or (2) by a committee of Disinterested Directors designated by majority vote of
Disinterested Directors, even though less than a quorum, or (B) if there are no
such Disinterested Directors or, even if there are such Disinterested Directors,
if the Board of Directors, by the majority vote of Disinterested Directors, so
directs, by Independent Counsel in a written opinion to the Board of Directors,
a copy of which shall be delivered to the Indemnitee. Such Independent Counsel
shall be selected by the Board of Directors and approved by the Indemnitee. Upon
failure of the Board of Directors to so select, or upon failure of the
Indemnitee to so approve, such Independent Counsel shall be selected by the
Chancellor of the State of Delaware or such other person as the Chancellor shall
designate to make such selection. Such determination of entitlement to
indemnification shall be made not later than 45 days after receipt by the
Company of a written request for indemnification. If the person making such
determination shall determine that the Indemnitee is entitled to indemnification
as to part (but not all) of the application for indemnification, such person
shall reasonably prorate such part of indemnification among such claims, issues
or matters. If it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten days after such
determination.
9. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. (a) In making a
determination with respect to entitlement to indemnification, the Indemnitee
shall be presumed to be entitled to indemnification hereunder and the Company
shall have the burden of proof in the making of any determination contrary to
such presumption.
(b) If the Board of Directors, or such other person or persons empowered
pursuant to Section 8 to make the determination of whether Indemnitee is
entitled to indemnification, shall have failed to make a determination as to
entitlement to indemnification within 45 days after receipt by the Company of
such request, the requisite determination of entitlement to indemnification
shall be deemed to have been made and the Indemnitee shall be absolutely
entitled to such indemnification, absent actual and material fraud in the
request for indemnification or a prohibition of indemnification under applicable
law. The termination of any action, suit, investigation or proceeding described
in Section 3 or 4 hereof by judgment, order, settlement or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself: (a) create a
presumption that the Indemnitee did not act in good faith and in a manner which
he/she reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, that the
Indemnitee has reasonable cause to believe that the Indemnitee's conduct was
unlawful; or (b) otherwise adversely affect the rights of the Indemnitee to
indemnification, except as may be provided herein.
10. ADVANCEMENT OF EXPENSES. All reasonable Expenses actually incurred by
the Indemnitee in connection with any threatened or pending action, suit or
proceeding shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding, if so requested by the Indemnitee, within 20
days after the receipt by the Company of a statement or statements from the
Indemnitee requesting such advance or advances. The Indemnitee may submit such
statements from time to time. The Indemnitee's entitlement to such Expenses
shall include those incurred in connection with any proceeding by the Indemnitee
seeking an adjudication or award in arbitration pursuant to this Agreement. Such
statement or statements shall reasonably evidence the Expenses incurred by the
Indemnitee in connection therewith and
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shall include or be accompanied by a written affirmation by Indemnitee of
Indemnitee's good faith belief that Indemnitee has met the standard of conduct
necessary for indemnification under this Agreement and an undertaking by or on
behalf of the Indemnitee to repay such amount if it is ultimately determined
that the Indemnitee is not entitled to be indemnified against such Expenses by
the Company pursuant to this Agreement or otherwise. Each written undertaking to
pay amounts advanced must be an unlimited general obligation but need not be
secured, and shall be accepted without reference to financial ability to make
repayment.
11. REMEDIES OF THE INDEMNITEE IN CASES OF DETERMINATION NOT TO INDEMNIFY
OR TO ADVANCE EXPENSES. In the event that a determination is made that the
Indemnitee is not entitled to indemnification hereunder or if the payment has
not been timely made following a determination of entitlement to indemnification
pursuant to Sections 8 and 9, or if Expenses are not advanced pursuant to
Section 10, the Indemnitee shall be entitled to a final adjudication in an
appropriate court of the State of Delaware or any other court of competent
jurisdiction of the Indemnitee's entitlement to such indemnification or advance.
Alternatively, the Indemnitee may, at the Indemnitee's option, seek an award in
arbitration to be conducted by a single arbitrator pursuant to the rules of the
American Arbitration Association, such award to be made within 60 days following
the filing of the demand for arbitration. The Company shall not oppose the
Indemnitee's right to seek any such adjudication or award in arbitration or any
other claim. Such judicial proceeding or arbitration shall be made de novo, and
the Indemnitee shall not be prejudiced by reason of a determination (if so made)
that the Indemnitee is not entitled to indemnification. If a determination is
made or deemed to have been made pursuant to the terms of Section 8 or Section 9
hereof that the Indemnitee is entitled to indemnification, the Company shall be
bound by such determination and shall be precluded from asserting that such
determination has not been made or that the procedure by which such
determination was made is not valid, binding and enforceable. The Company
further agrees to stipulate in any such court or before any such arbitrator that
the Company is bound by all the provisions of this Agreement and is precluded
from making any assertions to the contrary. If the court or arbitrator shall
determine that the Indemnitee is entitled to any indemnification hereunder, the
Company shall pay all reasonable Expenses actually incurred by the Indemnitee in
connection with such adjudication or award in arbitration (including, but not
limited to, any appellate proceedings).
12. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by the
Indemnitee of notice of the commencement of any action, suit or proceeding, the
Indemnitee will, if a claim in respect thereof is to be made against the Company
under this Agreement, notify the Company in writing of the commencement thereof;
but the omission to so notify the Company will not relieve the Company from any
liability that it may have to the Indemnitee under this Agreement or otherwise,
except to the extent that the Company may suffer material prejudice by reason of
such failure. Notwithstanding any other provision of this Agreement, with
respect to any such action, suit or proceeding as to which the Indemnitee gives
notice to the Company of the commencement thereof:
(a) The Company will be entitled to participate therein at its own
expense.
(b) Except as otherwise provided in this Section 12(b), to the extent
that it may wish, the Company, jointly with any other indemnifying party
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similarly notified, shall be entitled to assume the defense thereof with
counsel reasonably satisfactory to the Indemnitee. After notice from the
Company to the Indemnitee of its election to so assume the defense thereof,
the Company shall not be liable to the Indemnitee under this Agreement for
any legal or other Expenses subsequently incurred by the Indemnitee in
connection with the defense thereof other than reasonable costs of
investigation or as otherwise provided below. The Indemnitee shall have the
right to employ the Indemnitee's own counsel in such action or lawsuit, but
the fees and Expenses of such counsel incurred after notice from the
Company of its assumption of the defense thereof shall be at the expense of
the Indemnitee unless (i) the employment of counsel by the Indemnitee has
been authorized by the Company, (ii) the Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and
the Indemnitee in the conduct of the defense of such action and such
determination by the Indemnitee shall be supported by an opinion of
counsel, which opinion shall be reasonably acceptable to the Company, or
(iii) the Company shall not in fact have employed counsel to assume the
defense of the action, in each of which cases the fees and Expenses of
counsel shall be at the expense of the Company. The Company shall not be
entitled to assume the defense of any action, suit or proceeding brought by
or on behalf of the Company or as to which the Indemnitee shall have
reached the conclusion provided for in clause (ii) above.
(c) The Company shall not be liable to indemnify the Indemnitee under
this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent, which consent shall not be
unreasonably withheld. The Company shall not be required to obtain the
consent of Indemnitee to settle any action or claim which the Company has
undertaken to defend if the Company assumes full and sole responsibility
for such settlement and such settlement grants Indemnitee a complete and
unqualified release in respect of potential liability.
(d) If, at the time of the receipt of a notice of a claim pursuant to
this Section 12, the Company has director and officer liability insurance
in effect, the Company shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set forth in
the respective policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of the policies.
13. OTHER RIGHT TO INDEMNIFICATION. The indemnification and advancement of
Expenses provided by this Agreement are cumulative, and not exclusive, and are
in addition to any other rights to which the Indemnitee may now or in the future
be entitled under any provision of the By-laws or Certificate of the Company,
any vote of stockholders or Disinterested Directors, any provision of law or
otherwise. Except as required by applicable law, the Company shall not adopt any
amendment to its By-laws or Certificate the effect of which would be to deny,
diminish or encumber the Indemnitee's right to indemnification under this
Agreement.
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14. DIRECTOR AND OFFICER LIABILITY INSURANCE. The Company shall, from time
to time, make the good faith determination whether or not it is practicable for
the Company to obtain and maintain a policy or policies of insurance with
reputable insurance companies providing the officers and directors of the
Company with coverage for losses from wrongful acts, or to ensure the Company's
performance of its indemnification obligations under this Agreement. Among other
considerations, the Company will weigh the costs of obtaining such insurance
coverage against the protection afforded by such coverage. In the event the
Company maintains directors' and officers' liability insurance, the Indemnitee
shall be named as an insured in such manner as to provide the Indemnitee the
same rights and benefits as are accorded to the most favorably insured of the
Company's officers or directors. However, the Company agrees that the provisions
hereof shall remain in effect regardless of whether liability or other insurance
coverage is at any time obtained or retained by the Company; except that any
payments made to, or on behalf of, the Indemnitee under an insurance policy
shall reduce the obligations of the Company hereunder. Notwithstanding the
foregoing, the Company shall have no obligation to obtain or maintain such
insurance if the Company determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are
disproportionate to the amount of coverage provided or if the coverage provided
by such insurance is limited by exclusions so as to provide an insufficient
benefit.
15. SPOUSAL INDEMNIFICATION. The Company will indemnify the Indemnitee's
spouse to whom the Indemnitee is legally married at any time the Indemnitee is
covered under the indemnification provided in this Agreement (even if Indemnitee
did not remain married to him or her during the entire period of coverage)
against any pending or threatened action, suit, proceeding or investigation for
the same period, to the same extent and subject to the same standards,
limitations, obligations and conditions under which the Indemnitee is provided
indemnification herein, if the Indemnitee's spouse (or former spouse) becomes
involved in a pending or threatened action, suit, proceeding or investigation
solely by reason of his or her status as Indemnitee's spouse, including, without
limitation, any pending or threatened action, suit, proceeding or investigation
that seeks damages recoverable from marital community property, jointly-owned
property or property purported to have been transferred from the Indemnitee to
his/her spouse (or former spouse). The Indemnitee's spouse or former spouse also
may be entitled to advancement of Expenses to the same extent that Indemnitee is
entitled to advancement of Expenses herein. The Company may maintain insurance
to cover its obligation hereunder with respect to Indemnitee's spouse (or former
spouse) or set aside assets in a trust or escrow fund for that purpose.
16. INTENT. This Agreement is intended to be broader than any statutory
indemnification rights applicable in the State of Delaware and shall be in
addition to any other rights Indemnitee may have under the Company's
Certificate, By-laws, applicable law or otherwise. To the extent that a change
in applicable law (whether by statute or judicial decision) permits greater
indemnification by agreement than would be afforded currently under the
Company's Certificate, By-laws, applicable law or this Agreement, it is the
intent of the parties that Indemnitee enjoy by this Agreement the greater
benefits so afforded by such change.
17. ATTORNEY'S FEES AND OTHER EXPENSES TO ENFORCE AGREEMENT. In the event
that the Indemnitee is subject to or intervenes in any proceeding in which the
validity or enforceability of this Agreement is at issue or seeks an
adjudication or award in arbitration to
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enforce the Indemnitee's rights under, or to recover damages for breach of, this
Agreement the Indemnitee, if he/she prevails in whole or in part in such action,
shall be entitled to recover from the Company and shall be indemnified by the
Company against any actual expenses for attorneys' fees and disbursements
reasonably incurred by the Indemnitee.
18. EFFECTIVE DATE. The provisions of this Agreement shall cover claims,
actions, suits or proceedings whether now pending or hereafter commenced and
shall be retroactive to cover acts or omissions or alleged acts or omissions
which heretofore have taken place. The Company shall be liable under this
Agreement, pursuant to Sections 3 and 4 hereof, for all acts of the Indemnitee
while serving as a director and/or officer, notwithstanding the termination of
the Indemnitee's service, if such act was performed or omitted to be performed
during the term of the Indemnitee's service to the Company.
19. DURATION OF AGREEMENT. This Agreement shall survive and continue even
though the Indemnitee may have terminated his/her service as a director,
officer, employee, agent or fiduciary of the Company or as a director, officer,
employee, agent or fiduciary of any other entity, including, but not limited to
another corporation, partnership, limited liability company, employee benefit
plan, joint venture, trust or other enterprise or by reason of any act or
omission by the Indemnitee in any such capacity. This Agreement shall be binding
upon the Company and its successors and assigns, including, without limitation,
any corporation or other entity which may have acquired all or substantially all
of the Company's assets or business or into which the Company may be
consolidated or merged, and shall inure to the benefit of the Indemnitee and
his/her spouse, successors, assigns, heirs, devisees, executors, administrators
or other legal representations. The Company shall require any successor or
assignee (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, by written agreement in form and substance reasonably satisfactory to
the Company and the Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession or assignment had taken place.
20. DISCLOSURE OF PAYMENTS. Except as expressly required by any Federal or
state securities laws or other Federal or state law, neither party shall
disclose any payments under this Agreement unless prior approval of the other
party is obtained.
21. SEVERABILITY. If any provision or provisions of this Agreement shall be
held invalid, illegal or unenforceable for any reason whatsoever, (a) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including, but not limited to, all portions of any Sections of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and (b) to
the fullest extent possible, the provisions of this Agreement (including, but
not limited to, all portions of any paragraph of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifest by the provision held invalid, illegal or
unenforceable.
22. COUNTERPARTS. This Agreement may be executed by one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall
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constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought shall be required to be produced to
evidence the existence of this Agreement.
23. CAPTIONS. The captions and headings used in this Agreement are inserted
for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
24. DEFINITIONS. For purposes of this Agreement:
(a) "Change in Control" shall mean:
(i) a "change in control" of the Company of a nature that would
be required to be reported in response to Item 6(e) of
Schedule 14A for a proxy statement filed under Section 14(a)
of the Act as in effect on the date of this Agreement;
(ii) a "person" (as that term is used in Section 14(d)(2) of the
Act) who becomes the beneficial owner (as defined in Rule
13d-3 under the Act) directly or indirectly of securities
representing 45% or more of the combined voting power for
election of directors of the then outstanding securities of
the Company;
(iii) the individuals who at the beginning of any period of two
consecutive years or less (starting on or after the date of
this Agreement) constitute the Company's Board of Directors
cease for any reason during such period to constitute at
least a majority of the Company's Board of Directors, unless
the election or nomination for election of each new member
of the Board of Directors was approved in advance by vote of
at least two-thirds of the members of such Board of
Directors then still in office who were members of such
Board of Directors at the beginning of such period;
(iv) the stockholders of the Company approve any reorganization,
merger, consolidation or share exchange as a result of which
the common stock of the Company shall be changed, converted
or exchanged into or for securities of another organization
or any dissolution or liquidation of the Company or any sale
or the disposition of 50% or more of the assets or business
of the Company; or
(v) the stockholders of the Company approve any reorganization,
merger, consolidation or share exchange with another
corporation unless (1) the persons who were the beneficial
owners of the outstanding shares of the common stock of the
Company immediately before the consummation of such
transaction
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beneficially own more than 60% of the outstanding shares of
the common stock of the successor or survivor corporation in
such transaction immediately following the consummation of
such transaction and (2) the number of shares of the common
stock of such successor or survivor corporation beneficially
owned by the persons described in Section 24(a)(v)(1)
immediately following the consummation of such transaction
is beneficially owned by each such person in substantially
the same proportion that each such person had beneficially
owned shares of the Company common stock immediately before
the consummation of such transaction, provided (3) the
percentage described in Section 24(a)(v)(1) of the
beneficially owned shares of the successor or survivor
corporation and the number described in Section 24(a)(v)(2)
of the beneficially owned shares of the successor or
survivor corporation shall be determined exclusively by
reference to the shares of the successor or survivor
corporation which result from the beneficial ownership of
shares of common stock of the Company by the persons
described in Section 24(a)(v)(1) immediately before the
consummation of such transaction.
(b) "Disinterested Director" shall mean a director of the Company who
is not or was not a party to the action, suit, investigation or proceeding
in respect of which indemnification is being sought by the Indemnitee.
(c) "Expenses" shall include all attorneys' fees, retainers, court
costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating or being or preparing to be a witness in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative in nature.
(d) "Independent Counsel" shall mean a law firm or a member of a law
firm that neither is presently nor in the past five years has been retained
to represent (i) the Company or the Indemnitee in any matter material to
either such party or (ii) any other party to the action, suit,
investigation or proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel"
shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or the Indemnitee in an action to determine
the Indemnitee's right to indemnification under this Agreement.
25. ENTIRE AGREEMENT, MODIFICATION AND WAIVER. This Agreement constitutes
the entire agreement and understanding of the parties hereto regarding the
subject matter hereof, and no supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both parties hereto. No
waiver of any of the provisions of this Agreement shall be
-11-
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver. No
supplement, modification or amendment of this Agreement shall limit or restrict
any right of the Indemnitee under this Agreement in respect of any act or
omission of the Indemnitee prior to the effective date of such supplement,
modification or amendment unless expressly provided therein.
26. NOTICES. All notices, requests, demands or other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand with receipt acknowledged by the party to whom said notice or
other communication shall have been directed or if (ii) mailed by certified or
registered mail, return receipt requested with postage prepaid, on the date
shown on the return receipt:
(a) If to the Indemnitee to:
Xxxxx X. Xxxxxxx
00000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
(b) If to the Company, to:
Carmike Cinemas, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: X. Xxx Champion
with a copy to:
King & Spalding LLP
Attn: Xxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
or to such other address as may be furnished to the Indemnitee by the Company or
to the Company by the Indemnitee, as the case may be.
27. GOVERNING LAW. The parties hereto agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, applied without giving effect to any conflicts-of-law
principles.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
CARMIKE CINEMAS, INC.
By /s/ X. Xxx Champion
-------------------------------------
Name: X. Xxx Champion
Title: Senior Vice President,
General Counsel and Secretary
INDEMNITEE
By /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
