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Exhibit
10.1
The following named executive
officers have executed this Separation Agreement, a form of which
follows, with Carmike Cinemas, Inc. as of the dates indicated
below:
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Name
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Date
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| Richard B.
Hare |
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May 21,
2007 |
| Lee
Champion |
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May 21,
2007 |
| Gary F.
Krannacker |
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May 21,
2007 |
| Larry
Collins |
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May 21,
2007 |
SEPARATION
AGREEMENT
This Separation Agreement, or
“Agreement”, is entered into by and between Carmike
Cinemas, Inc., a Delaware corporation, and [NAME] , or
“Executive”.
WHEREAS, Executive currently
is employed by Carmike as Carmike’s [TITLE] ;
and
WHEREAS, Carmike and
Executive desire to set forth the terms and conditions which will
be applicable if Carmike terminates Executive’s employment
without Cause before the beginning or after the end of his or her
Protection Period; and
WHEREAS, Carmike and
Executive desire to set forth the terms and conditions which will
be applicable if Carmike terminates Executive’s employment
without Cause or Executive resigns for Good Reason during his or
her Protection Period;
NOW, THEREFORE, in
consideration of the mutual promises and agreements contained in
this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Carmike
and Executive hereby agree as follows:
§ 1.
Definitions
1.1 Board . The term
“Board” for purposes of this Agreement shall mean the
Board of Directors of Carmike.
1.2 Base Salary . The
term “Base Salary” for purposes of this Agreement shall
mean Executive’s base salary as in effect on the day before
his or her employment terminates or, if higher, his or her highest
base salary which was in effect on any date in the one
(1) year period ending on the date Executive’s
employment terminates.
1.3 Carmike . The term
“Carmike” for purposes of this Agreement shall mean
Carmike Cinemas, Inc. and any successor to Carmike.
1.4 Cause . The term
“Cause” for purposes of this Agreement:
(a) shall before the
beginning or after the end of Executive’s Protection period
mean:
(1) Executive is convicted
of, pleads guilty to, or confesses or otherwise admits to any
felony or any act of fraud, misappropriation or embezzlement or
Executive otherwise engages in a fraudulent act or course of
conduct;
(2) There is any act or
omission by Executive involving malfeasance or negligence in the
performance of Executive’s duties and responsibilities for
Carmike, or the exercise of Executive’s powers as an
executive of Carmike, where such act or omission is reasonably
likely to materially and adversely affect Carmike’s
business;
(3)(A) Executive breaches any
of the provisions of § 3 or (B) Executive violates
any provision of any code of conduct adopted by Carmike which
applies to Executive and any other Carmike employee if the
consequence to such violation for any employee subject to such code
of conduct ordinarily would be a termination of his or her
employment by Carmike; and
(4) any determination that
“Cause” exists under this § 1.4(a) shall be
made in good faith by the affirmative vote of at least a majority
of the members of the Board then in office at a meeting called and
held for purposes of making such determination.
(b) shall during
Executive’s Protection Period mean:
(1) Executive is convicted
of, pleads guilty to, or confesses or otherwise admits to any
felony or any act of fraud, misappropriation or embezzlement or
Executive otherwise engages in a fraudulent act or course of
conduct which has a material and adverse effect on
Carmike;
(2) There is any act or
omission by Executive involving malfeasance or gross negligence in
the performance of Executive’s duties and responsibilities
for Carmike, or the exercise of Executive’s powers as an
executive of Carmike, where such act or omission actually has a
material and adverse effect on Carmike’s business;
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(3) (A) Executive breaches
any of the provisions of § 3 and such breach has a
material and adverse effect on Carmike or (B) Executive
violates any provision of any code of conduct adopted by Carmike
which applies to Executive and any other Carmike employee if the
consequence to such violation for any employee subject to such code
of conduct clearly would have been a termination of his or her
employment by Carmike; provided, however,
(4) No such act or omission
or event shall be treated as “Cause” under this
Agreement unless (A) Executive has been provided a detailed,
written statement of the basis for Carmike’s belief such act
or omission or event constitutes “Cause” and an
opportunity to meet with the Board (together with Executive’s
counsel if Executive chooses to have Executive’s counsel
present at such meeting) after Executive has had a reasonable
period in which to review such statement and, if the allegation is
under § 1.4(b)(2) or § 1.4(b)(3), has had at
least a thirty (30) day period to take corrective action and
(B) the Board after such meeting (if Executive meets with the
Board) and after the end of such thirty (30) day correction
period (if applicable) determines reasonably and in good faith and
by the affirmative vote of at least two thirds of the members of
the Board then in office at a meeting called and held for such
purpose that “Cause” does exist under this
Agreement.
1.5 Change in Control
. The term “Change in Control” for purposes of this
Agreement shall mean:
(a) a “change in
control” of Carmike 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 Exchange Act as in
effect on the date of this Agreement;
(b) a “person”
(as that term is used in Section 14(d)(2) of the Exchange Act)
who becomes the beneficial owner (as defined in Rule 13d-3 under
the Exchange 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 Carmike;
(c) 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
Carmike’s Board cease for any reason during such period to
constitute at least a majority of Carmike’s Board, unless the
election or nomination for election of each new member of the Board
was approved in advance by vote of at least two-thirds of the
members of such Board then still in office who were members of such
Board at the beginning of such period;
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(d) the shareholders of
Carmike approve any reorganization, merger, consolidation or share
exchange as a result of which the common stock of Carmike shall be
changed, converted or exchanged into or for securities of another
organization or any dissolution or liquidation of Carmike or any
sale or the disposition of 50% or more of the assets or business of
Carmike; or
(e) the shareholders of
Carmike approve any reorganization, merger, consolidation or share
exchange with another corporation unless (i) the persons who
were the beneficial owners of the outstanding shares of the common
stock of Carmike immediately before the consummation of such
transaction 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 (ii) the number of shares of the common stock
of such successor or survivor corporation beneficially owned by the
persons described in § 1.5(e)(i) 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 Carmike common stock
immediately before the consummation of such transaction, provided
(iii) the percentage described in § 1.5(e)(i) of the
beneficially owned shares of the successor or survivor corporation
and the number described in § 1.5 (e)(ii) 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 Carmike by the persons
described in § 1.5(e)(i) immediately before the
consummation of such transaction.
1.6 Code . The term
“Code” for purposes of this Agreement shall mean the
Internal Revenue Code of 1986, as amended.
1.7 Confidential or
Proprietary Information . The term “Confidential or
Proprietary Information” for purposes of this Agreement shall
mean any secret, confidential, or proprietary information of
Carmike (not otherwise included in the definition of Trade Secret
in § 1.14 of this Agreement) that has not become
generally available to the public by the act of one who has the
right to disclose such information without violating any right of
Carmike.
1.8 Disability . The
term “Disability” for purposes of this Agreement means
that Executive is unable as a result of a mental or physical
condition or illness to perform the essential functions of
Executive’s job at Carmike even with reasonable accommodation
for any consecutive 180-day period, all as reasonably determined by
the Board.
1.9 Effective Date .
The term “Effective Date” for purposes of this
Agreement shall mean the earlier of (1) the date which
includes the “closing” of the transaction which makes a
Change in Control effective if the Change in Control is made
effective through a transaction which has a “closing”
or (2) the date a Change in Control is first reportable in
accordance with applicable law as effective to the Securities and
Exchange Commission if the Change in Control is made effective
other than through a transaction which has a
“closing”.
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1.10 Exchange Act .
The term “Exchange Act” for purposes of this Agreement
shall mean the Securities Exchange Act of 1934, as
amended.
1.11 Good Reason . The
term “Good Reason” for purposes of this Agreement shall
mean:
(a) there is a reduction
during Executive’s Protection Period in Executive’s
base salary from Carmike or there is a reduction during
Executive’s Protection Period in Executive’s combined
opportunity to receive any incentive compensation and bonuses from
Carmike without Executive’s express written
consent;
(b) there is a reduction
during Executive’s Protection Period in the scope, importance
or prestige of Executive’s duties, responsibilities or
authority at Carmike (other than as a result of a mere change in
Executive’s title if such change in title is consistent with
the organizational structure of Carmike following a Change in
Control) without Executive’s express written
consent;
(c) Carmike at any time
during Executive’s Protection Period (without
Executive’s express written consent) transfers
Executive’s primary work site from Executive’s primary
work site at the beginning of his or her Protection Period to a new
primary work site which is more than ten (10) miles from
Executive’s then current primary work site or, if Executive
consents in writing to such a transfer under this Agreement, from
the primary work site which was the subject of such consent, to a
new primary work site which is more than thirty-five
(35) miles from Executive’s then current primary work
site unless such new primary work site is closer to
Executive’s primary residence than Executive’s then
current primary work site; or
(d) Carmike fails (without
Executive’s express written consent) during Executive’s
Protection Period to continue to provide to Executive health and
welfare benefits, deferred compensation benefits, executive
perquisites and stock option and restricted stock grants that are
in the aggregate comparable in value to those provided to Executive
immediately prior to the beginning of his or her Protection Period;
where
(e) Any determination
required under this § 1.11 shall be made on a reasonable,
good faith basis by Executive after giving the Chief Executive
Officer of Carmike a reasonable opportunity to address and cure the
basis for Executive’s belief that he
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