Exhibit 10.29
AMENDMENT NUMBER ONE TO
THE
SEPARATION
AGREEMENT
THIS AMENDMENT
(“Amendment”) is entered into by and between Fred W.
Van Noy (“Executive”) and Carmike Cinemas, Inc.
(“Carmike”) as of the date set forth below.
WITNESSETH
:
WHEREAS, on [
], [
], Carmike entered into a Separation Agreement (the
“Separation Agreement”) with Executive to address
certain benefits payable to Executive upon termination of
employment;
WHEREAS, Carmike and Executive
desire to amend the Separation Agreement to bring the Separation
Agreement into compliance with § 409A of the Internal
Revenue Code and to make certain additional amendments;
NOW THEREFORE, the Separation
Agreement is hereby amended as follows effective as of the date
this Amendment is executed:
§ 1
By amending § 2.1(b) to
read in its entirety as follows:
“(b) Carmike shall pay
Executive two (2.0) times Executive’s Base Salary in
equal monthly installments (subject to applicable tax withholdings)
over the twenty-four (24) consecutive month period which
starts on the date Executive separates from service (within the
meaning of § 409A of the Code);”
§ 2
By amending § 2.1(c) to
read in its entirety as follows:
“(c)(1) Each outstanding and
nonvested stock option granted to Executive by Carmike shall
(notwithstanding the terms under which such option was granted)
become fully vested and exercisable on the date Executive’s
employment so terminates and each outstanding stock option shall
(notwithstanding the terms under which such option was granted)
remain exercisable for the remaining term of each such option (as
determined as if there had been no such termination of
Executive’s employment) or for the remainder of the period
described in § 2.1(b), whichever is less, subject to the
same terms and conditions as if Executive had remained employed by
Carmike for such term or such period (other than any term or
condition which gives Carmike the right to cancel any such option)
and (2) any restrictions on any outstanding restricted stock
grants to Executive by Carmike immediately shall (notwithstanding
the terms under which such grant was made) expire and
Executive’s right to such stock shall be non-forfeitable;
and”
§ 3
By amending § 2.1(d) to
read in its entirety as follows:
“Carmike shall continue for
the period described in § 2.1(b) to provide to Executive
the same health, dental and vision care coverage and life insurance
coverage as Executive was provided under Carmike’s employee
benefit plans, policies and practices on the day before
Executive’s employment terminated or, at Executive’s
election, on any date in the one (1) year period which ends on
the date of such termination of employment; provided, however,
Executive shall pay 100% of the cost of such coverage and any tax
liability and Carmike shall reimburse Executive for such tax
liability and Carmike’s portion of such coverage as soon as
practical after Executive pays such costs. Further, if Carmike
cannot provide such coverage under Carmike’s employee benefit
plans, policies or programs, either Carmike shall provide such
coverage and benefits to Executive outside such plans, policies and
programs at no additional expense or tax liability to Executive
(with Executive paying 100% of the cost of such coverage and any
tax liability and Carmike reimbursing Executive for such tax
liability and Carmike’s portion of such coverage as soon as
practical after Executive pays such costs) or Carmike shall
reimburse Executive for Executive’s cost to purchase such
coverage and benefits and for any tax liability for such
reimbursements. Executive at the end of the period described in
§ 2.1(b) shall have the right to elect healthcare
continuation coverage under § 4980B of the Code and the
corresponding provisions of the Employee Retirement Income Security
Act of 1974, as amended, as if his or her employment had terminated
at the end of such period; provided, however,”
§ 4
By amending § 2.1,
Separation Benefit , to add a new § 2.1(e) to read
as follows:
“(e) if Executive is a
“specified employee” for purposes of
§&nb
