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EXHIBIT 10.23
TRUST AGREEMENT
THIS TRUST AGREEMENT, made and entered into as of the 16th day of
July, 1999, by and between CARMIKE CINEMAS, INC., a Delaware corporation (the
"Grantor) and XXXXXXX XXXX XXXXXXX, X. XXX CHAMPION, III and XXXXX X. XXXXX,
residents of the State of Georgia (the "Trustees" or `Trustee"), as follows:
W I T N E S S E T H:
WHEREAS, Grantor wishes to aid XXXXXX X. XXXXXX (the "Employee") in
providing for his retirement and to provide benefits upon Employee's death or
disability; and
WHEREAS, Grantor has contemporaneously herewith executed a Deferred
Compensation Agreement (the "Agreement") with Employee, whereby Grantor has
agreed to pay additional compensation to Employee upon certain conditions and
in certain forms, and to create this trust to facilitate the payment of a
portion thereof; and
WHEREAS, the Trustees have agreed to accept the responsibilities of
serving as trustee of this Trust and of holding, managing, investing and
distributing the property which the Trustees shall receive pursuant to the
Agreement for the benefit and use of Employee, in accordance with the
provisions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, the parties hereby
agree as follows:
I. PURPOSE.
The purpose of this Trust is (a) to hold assets received from
Grantor in accordance with the Agreement, and (b) to invest, reinvest, disburse
and distribute those assets and the earnings thereon as provided hereunder.
II. TRUST PROPERTY.
Grantor hereby assigns, transfers and sets over to the
Trustees and their successors and assigns, and the Trustees hereby accept and
agree to hold, in trust, the property described in Schedule "A" attached hereto
and made a part hereof. The Trustees shall hold the trust property herein
transferred, and such additional property as may be hereafter acquired by the
Trustees, under the terms and provisions of this Trust for the use and benefit
of Employee as is more specifically set out herein. The Trustees shall be
entitled to receive the proceeds on death, maturity, or surrender of each and
all life insurance policies owned by or payable to the Trust.
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III. EMPLOYEE TREATED AS OWNER.
It is intended that this Trust shall be a trust of which the
Employee is treated as the "owner" for federal income tax purposes in
accordance with the provisions of Sections 671 through 679 of the Internal
Revenue Code of 1986, as amended (the "Code"), with the taxable income earned
by this Trust being taxable to Employee. If the Trustee, in its sole
discretion, deems it necessary or advisable for the Grantor or the Trustee to
undertake or refrain from undertaking any actions (including, but not limited
to, making or refraining from making any elections or filings) in order to
ensure that the Employee is at all times treated as the owner of the Trust for
federal income tax purposes, the Grantor or the Trustee will undertake or
refrain from undertaking such actions. The Grantor hereby irrevocably
authorizes the Trustee to be its attorney-in-fact for the purpose of performing
any act which the Trustee, in its sole discretion, deems necessary or advisable
in order to accomplish the purposes and the intent of this section. The Trustee
shall be fully protected in acting or refraining from acting in accordance with
the provisions of this section.
IV. INVESTMENT OF TRUST ASSETS.
Until the Trustee has distributed all of the assets of the
Trust, the Trustee shall invest and reinvest the Trust assets in such
securities and other property as the Trustee deems advisable, considering the
probable income (including capital appreciation potential) from any such
investment, and the probable safety of such investment. Within the limitations
of the foregoing, The Trustee is specifically authorized to acquire, for cash
or on credit, every kind of property, real, personal or mixed, and to make
every kind of investment, specifically including, but not limited to, corporate
and governmental obligations of every kind, preferred or common stocks
(including the common stock of Grantor), securities of any regulated investment
company or trust, interests in common trust funds now or hereafter established
by a corporate trustee, and property in which the Trustee owns an undivided
interest in any other trust capacity. The Trustee is expressly authorized and
empowered to purchase life insurance on the life of Employee in its own name
(and with itself as the beneficiary of the policy) as it shall determine to be
necessary or advisable to advance best the purposes of the Trust and the
interests of Employee.
V. DISTRIBUTION OF TRUST ASSETS.
A. All income from the Trust estate shall be
accumulated and added to principal. The Trustee shall hold said Trust estate
and accumulated income until the complete distribution of all of the assets of
the Trust following the occurrence of the "Distribution Event." For purposes of
this Trust, the "Distribution Event" is defined as the first date to occur of
the following: (1) the date Employee attains age 70; (2) the date of Employee's
death; (3) the date of Employee's termination of employment on account of total
disability; or (4) a date elected by Employee in his sole discretion on or
after the date Employee attains age 60. For purposes of this Trust, "total
disability" is defined as the inability of Employee to adequately perform his
regular duties for Employer as a result of sickness or accident.
B. Upon the occurrence of the "Distribution Event," benefits
shall be paid, commencing within sixty (60) days after such Event, as follows:
(1) one-half (1/2) of the Trust
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estate 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, and any unpaid guaranteed portion of the annuity, being
paid to Employee's designated beneficiary; and (2) the remaining one-half (1/2)
of the Trust estate shall be paid either as an annuity or in a lump sum
payment, as may be designated in writing by Employee by executing a
"Designation of Method of Benefit Payment" form which shall be delivered to the
Trustees at any time prior to the commencement of benefits from the Trust
following the Distribution Event.
At any time prior to the commencement of the payment of such
remaining one-half (1/2) of the Trust benefits, the "Designation of Method of
Benefit Payment" form may be modified, altered, or revoked. Each "Designation
of Method of Benefit Payment" form filed by Employee with the Trustee shall
revoke all such designations previously filed and such revocation shall not
require the consent of any of Employee's designated beneficiaries. If Employee
fails to execute a "Designation of Method of Benefit Payment" form and timely
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.
C. 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.
D. In the event Employee dies before receipt of all of
his benefits under this 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
designation; 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 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 as
permitted by law. 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, 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.
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
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beneficiaries, the Trustee shall distribute such benefits to the following
persons in the following order of priority:
(1) The spouse of Employee, if then living, and
if not,
(2) The estate of the last to die of Employee
or any designated beneficiary of Employee.
If any beneficiary is a minor, the payment of his or her
share of said benefits shall be delivered to the person having custody of such
minor, as custodian of the property of such minor under the applicable Uniform
Gifts to Minors Act of the state in which the minor shall reside.
VI. JOINT AND SURVIVOR ANNUITY REQUIREMENTS.
A. Qualified Joint and Survivor Annuity. Unless an
optional form of benefit is selected by Employee pursuant to a qualified
election within the 90-day period ending on the annuity starting date, the
benefits of Employee under this Trust, if Employee is married, will be paid in
the form of a qualified joint and survivor annuity, and if Employee is
unmarried, Employee's benefits will be paid in the form of a life annuity.
B. Qualified Preretirement Survivor Annuity. If
Employee is married and 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 this Trust shall be
applied toward the purchase of an annuity for the life of Employee's surviving
spouse. The surviving spouse may elect to have such annuity distributed within
a reasonable period after Employee's death.
C. Definitions.
1. Election Period: The period which begins on
the first day of the calendar year in which Employee attains age 35 and ends on
the date of Employee's death. If Employee separates from service prior to the
first day of the calendar year in which age 35 is attained, with respect to the
benefits as of the date of separation, the election period shall begin on the
date of separation.
Pre-age 35 waiver: If Employee has not yet attained
age 35 as of the end of any current calendar year, he may make a special
qualified election to waive the qualified preretirement survivor annuity for
the period beginning on the date of such election and ending on the first day
of the calendar year in which Employee attains age 35. Such election shall not
be valid unless Employee receives a written explanation of the qualified
preretirement survivor annuity in comparable manner to the explanation required
under paragraph D.1. of this Article VI. Qualified preretirement survivor
annuity coverage will be automatically reinstated as of the first day of the
calendar year in which Employee attains age 35. Any new waiver on or after such
date shall be subject to the full requirements of this Article VI.
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2. Earliest Retirement Age: The earliest date
on which Employee can elect to receive retirement benefits under this Trust.
3. Qualified Election: A waiver of a qualified
joint and survivor annuity or a qualified preretirement survivor annuity. Any
such waiver shall not be effective unless: (a) Employee's spouse consents in
writing to the election; (b) the election designates a specific beneficiary,
including any class of beneficiaries or any contingent beneficiaries, which may
not be changed without spousal consent (or the spouse expressly permits
designations by Employee without any further spousal consent); (c) the spouse's
consent acknowledges the effect of the election; and (d) the spouse's consent
is witnessed by a Notary Public. Additionally, Employee's waiver of the
qualified joint and survivor annuity shall not be effective unless the election
designates a form of benefit payment which may not be changed without spousal
consent (or the spouse expressly permits designations by Employee without any
further spousal consent). If it is established to the satisfaction of the
Trustee that there is no spouse or that the spouse cannot be located, a waiver
will be deemed a qualified election.
Any consent by a spouse obtained under this
provision (or establishment that the consent of a spouse may not be obtained)
shall be effective only with respect to such spouse. A consent that permits
designations by Employee without any requirement of further consent by such
spouse must acknowledge that the spouse has the right to limit consent to a
specific beneficiary, and a specific form of benefit where applicable, and that
the spouse voluntarily elects to relinquish either or both of such rights. A
revocation of a prior waiver may be made by Employee without the consent of his
spouse at any time before the commencement of benefits. The number of
revocations shall not be limited. No consent obtained under this provision
shall be valid unless Employee has received notice as provided in paragraph D.
of this Article.
4. Qualified Joint and Survivor Annuity: An
immediate annuity for the life of Employee with a survivor annuity for the life
of the spouse which is not less than 50 percent and not more than 100 percent
of the amount of the annuity which is payable during the joint lives of
Employee and the spouse and which is the amount of benefit which can be
purchased with the Employee's benefits. The percentage of the survivor annuity
shall be 50%.
5. Spouse (Surviving Spouse): The spouse or
surviving spouse of Employee, provided that a former spouse will be treated as
the spouse or surviving spouse and a current spouse will not be treated as the
spouse or surviving spouse to the extent provided under a qualified domestic
relations order as described in Section 414(p) of the Code.
6. Annuity Starting Date: The first day of the
first period for which an amount is paid as an annuity or any other form.
D. Notice Requirements.
1. In the case of a qualified joint and
survivor annuity, the Trustee shall no less than 30 days and no more than 90
days prior to the annuity starting date provide to Employee a written
explanation of: (a) the terms and conditions of a qualified joint and survivor
annuity; (b) Employee's right to make and the effect of an election to waive
the qualified joint
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and survivor annuity form of benefit; (c) the rights of Employee's spouse; and
(d) the right to make, and the effect of, a revocation of a previous election
to waive the qualified joint and survivor annuity.
2. In the case of a qualified preretirement
survivor annuity, the Trustee shall provide Employee within the applicable
period for such Employee a written explanation of the qualified preretirement
survivor annuity in such terms and in such manner as would be comparable to the
explanation provided for meeting the requirements of 1. Above, applicable to a
qualified joint and survivor annuity.
The "applicable period" for Employee is whichever of
the following periods ends last: (a) the period beginning with the first day of
the calendar year in which Employee attains age 32 and ending with the close of
the calendar year preceding the calendar year in which Employee attains age 35;
or (b) a reasonable period ending after this Article VI first applies to
Employee. Notwithstanding the foregoing, notice must be provided within a
reasonable period ending after separation from service if Employee separates
from service before attaining age 35.
For purposes of applying the preceding paragraph, a
reasonable period ending after the enumerated event described in (b) is the end
of the two-year period beginning one year prior to the date the applicable
event occurs, and ending one year after that date. If Employee separates from
service before the calendar year in which age 35 is attained, notice shall be
provided within the two-year period beginning one year prior to separation and
ending one year after separation. If Employee thereafter returns to employment
with Employer, the applicable period for Employee shall be redetermined.
VII. TERMINATION OF THE TRUST.
The Trust shall terminate upon the payment by the Trustee of
all amounts due Employee under this Trust and the receipt by the Trustee of a
valid release to that effect from Employee or his beneficiaries with respect to
payments made to him or them.
VIII. TRUSTEE'S POWERS.
In addition to the powers conferred upon the Trustee by law,
or by other provisions of this Trust, the Trustee shall have the following
powers, both as to principal and income:
A. To retain any property at any time forming a part of
the Trust estate for such length of time as the Trustee may deem advisable; and
such retention shall not be restricted to property of the character authorized
for trust investments by the laws of any state.
B. To sell at public or private sale or to exchange,
lease, pledge, or mortgage, all or any part of the Trust estate and invest and
reinvest the Trust estate or the proceeds from the sale thereof in stocks
(common or preferred), bonds, certificates of deposit (including those issued
by the bank herein named as Trustee), common trust funds, mutual funds,
annuities, or life
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insurance contracts on the life of Employee or on the life of any person in
whom Employee has an insurable interest, or in other property of any type,
without regard to the proportion that such property may bear to the total
corpus of the Trust estate, as the Trustee may deem advisable. To borrow money
with or without security for any purpose and to pledge securities or other
properties to secure any such loan; to execute all deeds, assignments,
mortgages, leases or other instruments necessary or proper for the foregoing
purposes.
C. To register any property in the name of any nominee
without describing the Trust estate and to retain any property in bearer form.
D. To acquire, own, rent, hold, maintain and improve
dwellings for the use and benefit of Employee or his beneficiaries.
E. To exercise all options and privileges available
under life insurance policies which at any time may form a part of the Trust,
including but not limited to the right to receive dividends of distributive
shares of surplus, disability benefits, surrender values, or the proceeds of
matured endowments; to obtain and receive such advances or loans on account of
a policy which may be available; to exercise any option or privilege granted in
a policy or permitted by an insurer including, but not limited to, the right to
direct that dividends be used under any of the options promised in the policy
or permitted by the insurer; to sell, assign, or pledge a policy. These rights
shall include the right in the Trustee to use any part or all of the proceeds
of any or all of said policies on death or maturity under any or all of the
settlement options; provided, however, that the Trustee shall be the designated
recipient of any income or interest payment under an elected settlement, and
any life income settlement elected shall be measured only by the life or lives
of one or more of the beneficiaries of this Trust.
F. To vote by proxy and consent to, approve, authorize,
become a party to and execute any instrument in connection with any corporate
act in which the Trust estate may be interested, including (without limitation)
any merger, consolidation, reorganization, capital readjustment, dissolution,
liquidation, lease, or sale.
G. To keep uninvested such amounts of cash and deposit
such monies in such bank account or accounts, including savings accounts, as
the Trustee may from time to time deem advisable. The Trustee may keep on
deposit with itself, in either the commercial or savings department, subject to
the same rules and regulations as any other deposit, without furnishing bond or
security, any cash under its care and management, whether corpus or income;
awaiting investment, reinvestment or distribution; provided, however, there
shall be no liability upon the part of the Trustee for the payment of interest
or any other charge or claim during the time any such cash is kept on deposit
with itself awaiting investment, reinvestment or distribution, except to the
same extent interest shall be payable on deposits in the savings department of
a Trustee as to any such cash on deposit in said savings department.
H. To compromise, adjust, settle and compound, or
submit to arbitration on such terms as the Trustee may deem advisable any
claims in favor of or against the Trust estate, which shall include any tax
payable by the Trust.
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I. To sell, lease, exchange, and grant options on any
property, and to do any of the same at public or private sale and upon such
terms and conditions and at such time and times as the Trustee may deem
advisable, and to execute and deliver any and all instruments of any type
required in the premises; and no purchaser, lessee, transferee, optionee, or
other party to any such transaction shall be obligated to see to the further
application of any monies after the same shall have been paid to the Trustee.
J. To employ legal counsel and such other agents and
employees as are deemed necessary in the administration of the Trust estate and
pay their reasonable compensation and expenses. To pay, compromise or contest
any claim or other matter directly or indirectly affecting this Trust and to
employ counsel for any of the above or other purposes, and to determine whether
or not to act upon the advice of such counsel; but the Trustee shall not,
except at its option, be required to enter into or defend litigation on behalf
the Trust until it shall have been indemnified to its satisfaction against all
expenses and liabilities to which it may, in its judgment, be subjected by any
such action on its part.
K. To exercise in respect of all stocks, bonds, or
other investments held by the Trustee hereunder, all such rights, options,
powers, and privileges as are or may be lawfully exercised by any person owning
similar property in its own right.
L. To exercise in respect of all real estate held by
the Trust hereunder, all such rights, powers and privileges as are or may be
lawfully exercised by any person owning real estate in its own right.
M. To determine in the Trustee's discretion whether
money or property coming into the Trust's possession shall be treated as income
or principal, and charge or apportion expenses or leases either to the
principal or income accounts or partly to each, in such manner as it may in its
discretion deem just and proper.
N. To make any required or discretionary distribution
in money or in kind, or partially in money and partially in kind. Distribution
in kind shall be made at the fair market value of the property distributed, as
determined by the Trustee in its sole discretion, and the Trustee may cause the
share to be transferred to any distributes to be composed of property like or
different from that transferred to any other distributee. In making any
distribution to the Employee or otherwise under the provisions of this Trust,
Trustees shall be entitled to rely on information furnished by Employee.
O. To execute and deliver all written instruments for
the exercise of any Trustee powers.
IX. RESIGNATION OR REMOVAL OF TRUSTEE.
Each Trustee reserves the right to resign at any time by
giving at least thirty (30) days' written notice to Grantor or such shorter
notice as may be acceptable to Grantor. Grantor reserves the right to remove
and replace any Trustee with a successor Trustee at any time by giving at least
thirty (30) days' written notice to the Trustee or such shorter notice as may
be
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acceptable to the Trustee. On resignation of a Trustee, the remaining
Trustee(s) shall continue to serve as Trustee hereunder. Upon the resignation
or death of all of the Trustees then acting, then COLUMBUS BANK AND TRUST
COMPANY, Columbus, Georgia, and its successor or successors and assigns, shall
serve as successor Trustee hereunder. Upon the resignation or removal of
Columbus Bank and Trust Company, Grantor shall appoint a successor Trustee who
shall have the same powers and duties as those conferred upon the Trustee
hereunder. Upon acceptance of such appointment by the successor Trustee, the
Trustee shall assign, transfer and pay over to such successor Trustee the funds
and properties then constituting the Trust estate and, in that connection,
shall cause any part thereof then held in any commingled trust to be withdrawn
therefrom. A successor Trustee may be any qualified person or corporation.
The successor Trustee may accept and rely upon any accounting
made by or on behalf of the predecessor Trustee and on any statement or
representation made by such fiduciary as to the assets comprising this Trust
estate or as to any other fact bearing on the prior administration of this
Trust. A Trustee shall not be liable for having accepted and relied upon such
accounting, statement, or representation if it is later proved to be
incomplete, inaccurate, or untrue. A Trustee shall not be liable for any act or
omission of any predecessor fiduciary or Co-Trustee, nor for any act or
omission done in good faith.
No Trustee shall be required to give any bond or other
security for the faithful performance of its duties, or, if a bond is required
by law, no surety shall be required thereon.
X. TRUSTEE COMPENSATION.
An individual Trustee hereunder shall serve without
compensation for his services in the administration of this Trust; provided
that the compensation of any corporate Trustee shall be in accordance with its
standard schedule of fees at the time. The Trustee shall be reimbursed for the
reasonable costs and expenses which it incurs in connection with its duties
hereunder. Such compensation, if applicable, and all other proper costs and
expenses shall be paid from the Trust estate, unless Grantor elects to pay such
amounts.
XI. ANNUAL ACCOUNTING.
The Trustee shall keep accurate and detailed accounts of all
investments, receipts and disbursements and other transactions hereunder, and,
within ninety (90) days following the close of each calendar year, and within
ninety (90) days after the Trustee's resignation or termination of the Trust as
provided herein, the Trustee shall render a written account of its
administration of the Trust to the Grantor by submitting a record of receipts,
investments, disbursements, distributions, gains, losses, assets on hand at the
end of the accounting period and other pertinent information, including a
description of all securities and investments purchased and sold during such
calendar year. Written approval of an account shall, as to all matters shown in
the account, be binding upon the Grantor and shall forever release and
discharge the Trustee from any liability or accountability. The Grantor will be
deemed to have given its written approval if Grantor does not object in writing
to the Trustee within 120 days after the date of receipt of such account from
the Trustee. The Trustee shall be entitled at any time to institute an action
in a court of competent jurisdiction for a judicial settlement of its account.
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XII. COLLECTION OF INSURANCE PROCEEDS.
In the event that the Trust property shall include policies
of life insurance on the date of the insured's death, the Trustee shall, as
soon as is practical after that date, furnish proof of death to the insuring
companies and shall collect all monies due under all policies, or make other
suitable settlement arrangements or agreements with the insuring companies,
subject only to this Trust. In connection with the collection of the proceeds
of any such policies, the Trustee shall have full authority to take any action
it deems best, and is hereby authorized to execute all necessary receipts and
releases to the insuring companies concerned.
XIII. TRUST IRREVOCABLE.
Grantor specifically directs that except as otherwise
provided herein, the Trust herein created is irrevocable and that there are no
conditions or reservations of power in Grantor to revoke, alter, or amend this
Agreement, in whole or in part; provided, however, that the Trust may be
amended as necessary at any time to obtain a favorable ruling from the Internal
Revenue Service with respect to the tax consequences of the establishment and
settlement of the Trust, and may be amended by revising or deleting part or all
of such terms and provisions of Article VI as may be permitted by the law then
applicable to such Article VI subject to the approval of Grantor and Employee.
There are no conditions or reservations of power in Grantor to free any or all
of the property constituting said Trust estate from the terms of this Trust.
XIV. NOTICES.
Any notice or instructions required under any of the
provisions of this Trust shall be deemed effectively given only if such notice
is in writing and is delivered personally or by certified or registered mail,
return receipt requested and postage prepaid, addressed to the addresses as set
forth below of the parties hereto. The addresses of the parties are as follows:
(i) Grantor:
Carmike Cinemas, Inc.
0000 Xxxxx Xxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxxx, Xxxxxxx 00000
(ii) Trustees:
Xxxxxxx Xxxx Xxxxxxx
0000 Xxxxx Xxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxxx, Xxxxxxx 00000
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X. Xxx Champion, III
0000 Xxxxx Xxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxxx, Xxxxxxx 00000
Xxxxx X. Xxxxx
0000 Xxxxx Xxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxxx, Xxxxxxx 00000
Or If To:
Columbus Bank and Trust Company
Xxxx Xxxxxx Xxx 000
Xxxxxxxx, Xxxxxxx 00000
The Grantor or Trustees may at any time change the address to which notices are
sent to it by giving written notice thereof in the manner provided above.
XV. MISCELLANEOUS PROVISIONS.
A. All actions by the Trustees shall be made by a
majority vote of the Trustees.
B. Except as may be otherwise provided herein, in the
distribution of the trust herein created, the Trustee, in its discretion, may
pay over the assets to be distributed either in cash or in property, or partly
in cash and partly in property, and at such valuations as to it may seem
proper, and the determination of the Trustee of the value of any property for
the purpose of distributing any asset hereunder shall be final, conclusive and
binding upon all parties interested in such distribution.
C. As to all or any portion of the Trust estate which
may be payable to Employee or any beneficiary hereunder, he shall have no right
or power, either directly or indirectly, to anticipate, discharge, mortgage,
encumber, assign, pledge, hypothecate, sell or otherwise dispose of all or any
part thereof, until the same shall have been actually paid to him by the
Trustee. The Trustee shall continue distributing Trust property directly to or
for the benefit of Employee or beneficiary as provided for herein
notwithstanding any transfer, assignment or conveyance, or action by creditors.
Neither the income, principal or corpus of the Trust estate, nor any part
thereof, nor any interest in the same, shall be liable for or subject to any
debts, claims or obligations of any kind or nature whatsoever, or to any legal
process in aid thereof, contracted or incurred by or for Grantor, Employee or
any beneficiary hereunder.
D. No provision of this Trust Agreement shall be
construed as giving Employee any right to continued employment with Grantor.
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E. Employee and any of his beneficiaries hereunder
shall have no right or interest in any portion of the Trust estate at any time
prior to its distribution.
F. This Trust shall be governed by and construed in
accordance with the laws of the State of Georgia applicable to contracts made
and to be performed therein and the Trustee shall not be required to account in
any court other than one of the courts of such state.
G. All section and paragraph headings herein have been
inserted for convenience of reference only and shall in no way modify, restrict
or affect the meaning or interpretation of any of the terms or provisions of
this Trust.
H. This Trust is intended as a complete and exclusive
statement of the agreement of the parties hereto, supersedes all previous
agreements or understandings among them and may not be modified or terminated
orally.
I. The term `Trustee" shall include any successor
Trustee.
J. If the Trustee hereunder is a bank or trust company,
any corporation resulting from any merger, consolidation or conversion to which
such bank or trust company may be a party, or any corporation otherwise
succeeding generally to all or substantially all of the assets or business of
such bank or trust company, shall be the successor to it as Trustee or
custodian hereunder, as the case may be without the execution of any instrument
or any further action on the part of any party hereto.
K. If any provision of this Trust shall be invalid and
unenforceable, the remaining provisions hereof shall subsist and be carried
into effect.
L. Any reference hereunder to Grantor shall expressly
be deemed to include Grantor's successor and assigns.
M. Whenever used herein, and to the extent appropriate,
the masculine, feminine or neuter gender shall include the other two genders,
the singular shall include the plural and the plural shall include the
singular.
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IN WITNESS WHEREOF, Grantor has caused this Trust to be duly
executed by and through its duly authorized corporate officers, with its
corporate seal to be hereunto affixed, and Trustees have hereunto set their
hands and seals as of the day and year first above written.
GRANTOR:
CARMIKE CINEMAS, INC.
BY:
---------------------------------------
Its:
--------------------------
ATTEST:
-----------------------------------
Its:
--------------------------
(Corporate Seal)
TRUSTEES:
------------------------------------(L.S.)
XXXXXXX XXXX XXXXXXX
------------------------------------(L.S.)
X. XXX CHAMPION, III
------------------------------------(L.S.)
XXXXX X. XXXXX
13
14
SCHEDULE "A"
PROPERTY
CASH in the amount of TWO THOUSAND SIX HUNDRED AND 00/100
DOLLARS ($2,600.00).
GRANTOR:
CARMIKE CINEMAS, INC.
BY:
---------------------------------------
Its:
--------------------------
ATTEST:
-----------------------------------
Its:
--------------------------
(Corporate Seal)
TRUSTEES:
------------------------------------(L.S.)
XXXXXXX XXXX XXXXXXX
------------------------------------(L.S.)
X. XXX CHAMPION, III
------------------------------------(L.S.)
XXXXX X. XXXXX
