SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of report (date of earliest event reported):February 24, 2009 (February 24, 2009)

 

AMC ENTERTAINMENT INC.

 (Exact Name of Registrant as Specified in Charter)

 

Delaware

(State or Other Jurisdiction
of Incorporation)

 

1-8747
(Commission File Number)

 

43-1304369
(I.R.S. Employer
Identification Number)

 

920 Main Street, Kansas City, Missouri 64105

 (Address of Principal Executive Offices, including Zip Code)

 

Registrant’s telephone number, including area code: (816) 221-4000

 

Not Applicable

 (Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Item 5.02    Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers.

 

On February 23, 2009, Peter C. Brown provided AMC Entertainment Holdings, Inc. (“AMCEH”) with notice of his retirement from his positions as Chairman of the Board, Chief Executive Officer and President of each of the AMCEH, Marquee Holdings, Inc. (“Marquee”) and AMC Entertainment Inc. (“AMCE” or the “Company”), effective March 2, 2009 (the “Effective Date”).  On February 24, 2009, AMCE issued a news release announcing, among other events, Mr. Brown’s retirement.  A copy of the news release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

 

Mr. Brown and AMCEH, Marquee and AMCE entered into a Separation and General Release Agreement (the “Separation Agreement”) on February 23, 2009.  The Separation Agreement supersedes Mr. Brown’s existing employment agreement with those entities.  The brief description that follows does not purport to be complete and is qualified in its entirety by reference to the Separation Agreement, which is attached hereto as Exhibit 10.1 and incorporated herein by reference.

 

Upon the Effective Date Mr. Brown will receive a cash severance payment of $7,013,985 (less applicable withholding) and payment for his shares of AMCEH common stock, which he has elected to sell to AMCEH pursuant to a right provided to him under his employment agreement.  The Separation Agreement prohibits Mr. Brown from disclosing confidential information and includes a release by Mr. Brown of any claims against the AMC entities and a mutual nondisparagement covenant.  All of Mr. Brown’s outstanding stock options shall be forfeited as of the Effective Date.

 

The news release referenced above also announced the appointment of Gerardo I. Lopez, 49, as the Company’s Chief Executive Officer and his election to the Company’s Board of Directors, each effective as of the Effective Date.  Mr. Lopez most recently served as Executive Vice President of Starbucks Coffee Company and President of its Global Consumer Products, Seattle’s Best Coffee and Foodservice divisions.  Prior to joining Starbucks, Mr. Lopez was president of the Handleman Entertainment Resources division of Handleman Company from November 2001 to September 2004.

 

In connection with the appointment of Mr. Lopez, on February 23, 2009, he and AMCE entered into an Employment Agreement (the “Employment Agreement”) that has a three-year initial term and is briefly described below.  The description does not purport to be complete and is qualified in its entirety by reference to the Employment Agreement, which is attached hereto as Exhibit 10.2 and is incorporated herein by reference.

 

Under the Employment Agreement, Mr. Lopez’s base salary shall be $700,000 per year.  He is ineligible for a bonus for fiscal year 2009 but his target incentive bonus for fiscal year 2010 is equal to 70% of his annual base salary.  In addition, he is receiving a one-time special incentive bonus that vests at the rate of $400,000 per year over five years, provided he remains employed on each vesting date (with such vesting requirements deemed satisfied if Mr. Lopez experiences an involuntary termination within 12 months after a change of control).  The first three installments of the special incentive bonus are payable on the third anniversary of the Effective Date and the fourth and fifth are payable upon vesting.  Any bonus is subject to mandatory repayment if based on materially inaccurate financial statements or performance metrics.

 

Upon approval by the committee that administers the option plan, Mr. Lopez will receive a grant of a stock option (the “Option”) to purchase 1.25% of the issued and outstanding shares of the common stock of AMCEH.  The Option will vest in five equal annual installments, subject to Mr. Lopez’s continued employment.  Notwithstanding the foregoing, all shares subject to the Option shall vest in full upon Mr. Lopez’s involuntary termination within 12 months after a change of control.

 

If Mr. Lopez’s employment by the Company terminates during the term as a result of an involuntary termination, he shall receive an amount equal to (x) two times his base salary plus (y) two times his average bonus during the preceding two years.  The severance payments and any accelerated vesting following a change in control are conditioned upon his execution and non-revocation of a release of claims.  Under the Employment Agreement, Mr. Lopez is subject to non-compete and non-solicitation covenants during his employment and for 24 months thereafter.  He is also bound not to disclose confidential information and is subject to a nondisparagement covenant.

 

Item 9.01.              Financial Statements and Exhibits.

 

(d)           The exhibits listed below and in the accompanying Exhibit Index are furnished as part of this Current Report on Form 8-K.

 

Exhibit

 

Description

 

 

 

10.1

 

Separation and General Release Agreement, dated as of February, 23, 2009, by and between Peter C. Brown, AMC Entertainment Holdings, Inc., Marquee Holdings Inc. and AMC Entertainment Inc.

 

 

 

10.2

 

Employment Agreement, dated as of February 23, 2009, by and between Gerardo I. Lopez and AMC Entertainment Inc.

 

 

 

99.1

 

News Release dated February 24, 2009 titled, “AMC Entertainment Inc. Announces Leadership Change; Chairman and CEO Peter C. Brown Retires; Gerardo I. Lopez Named Chief Executive Officer and Director.”

 

2



 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

AMC ENTERTAINMENT INC.

 

 

 

 

Date:  February 24, 2009

By:

/s/ CRAIG R. RAMSEY

 

 

Craig R. Ramsey

 

 

Executive Vice President and Chief Financial Officer

 

EXHIBIT INDEX

 

Exhibit No.

 

Description

 

 

 

10.1

 

Separation and General Release Agreement, dated as of February, 23, 2009, by and between Peter C. Brown, AMC Entertainment Holdings, Inc., Marquee Holdings Inc. and AMC Entertainment Holdings Inc.

 

 

 

10.2

 

Employment Agreement, dated as of February 23, 2009, by and between Gerardo I. Lopez and AMC Entertainment Inc.

 

 

 

99.1

 

News Release dated February 24, 2009 titled, “AMC Entertainment Inc. Announces Leadership Change; Chairman and CEO Peter C. Brown Retires; Gerardo I. Lopez Named Chief Executive Officer and Director.”

 

3


Exhibit 10.1

 

EXECUTION

 

SEPARATION AND GENERAL RELEASE AGREEMENT

 

This Separation and General Release Agreement (this “Separation Agreement”), is entered into this 23rd day of February 2009, by and between Peter C. Brown (“Employee”), AMC Entertainment Holdings, Inc, a Delaware corporation (“AMCEH”), Marquee Holdings Inc., a Delaware corporation (“Holdings”), and AMC Entertainment Inc., a Delaware corporation (“AMCE,” and, collectively with AMCEH and Holdings, the “Company”).

 

WHEREAS, Employee has been employed as the Chairman of the Board, Chief Executive Officer and President of each of AMCEH, Holdings and AMCE; and

 

WHEREAS, Employee desires to resign from his employment and other service relationships with the Company and its affiliates upon the terms set forth herein.

 

NOW, THEREFORE, in consideration of the covenants undertaken and the release contained in this Separation Agreement, Employee and the Company agree as follows:

 

I.              ResignationEmployee hereby resigns as Chairman of the Board, Chief Executive Officer, and President, and otherwise as an employee, officer, director, member, manager and in any other capacity, of AMCEH, Holdings, AMCE, American Multi-Cinema, Inc. (“AMC”) and each of its and their parents, partnerships, subsidiaries, joint ventures, predecessors and affiliates, including, without limitation, MovieTickets.com, National CineMedia, Inc., Midland Empire Partners, LLC and Digital Cinema Implementation Partners, LLC, effective March 2, 2009 (the “Separation Date”).  Concurrently with the execution and delivery of this Separation Agreement, Employee has executed the letter attached as Exhibit A hereto and delivered such letter to AMCEH.  The Company and its affiliates hereby accept such resignation, effective immediately.  Employee acknowledges and agrees that he has received all amounts owed for his regular and usual salary (including, but not limited to, any severance, overtime, bonus, accrued vacation, commissions, or other wages) and usual benefits, and that all payments due to Employee from the Company after the Separation Date shall be determined under this Separation Agreement.

 

II.            Severance.

 

A.    Severance Pay.  The Company shall pay as severance pay to Employee a lump sum amount of 7,013,985.00 less applicable withholding and authorized deductions, on the day after the Separation Date, provided Employee returns this executed Separation Agreement on February 23, 2009 (“Lump Sum Severance Payment”), provided this Separation Agreement has not sooner been revoked, in whole or in part, by Employee.

 

B.    Retirement Benefit Continuation.  To the extent Employee is eligible for benefits under the AMC Supplemental Executive Retirement Income Plan, the Defined Benefit Retirement Income Plan, the AMC Nonqualified Deferred Compensation Plan and the AMC Retirement Enhancement Plan (collectively, the “Retirement Plans”) as in effect immediately prior to the Separation Date, he will remain eligible for such benefits pursuant to the terms thereof as may be amended or terminated from time to time.

 



 

C.    Certain Other Benefits.  Employee shall be entitled to the benefits described on the attached Exhibit B in accordance with their terms as in effect from time to time and subject to his satisfaction of applicable requirements thereunder.  Nothing in this Separation Agreement shall affect the Company’s ability to amend or terminate any such benefit plan, program or arrangement from time to time in accordance with its terms (“Exhibit B Benefit Programs”).  Further, nothing in this Separation Agreement shall establish or enhance any rights or benefits on the part of Employee under the Retirement Plans or under any Exhibit B Program that he would not have had had he not entered into this Separation Agreement.

 

D.    No Other Benefits.  The Lump Sum Severance Payment, benefits under the Retirement Plans and Exhibit B Benefits pursuant to this Section II are in lieu of any other payments or benefits (and, except as specifically provided under the Retirement Plans and the Exhibit B Benefit Programs, none shall accrue) after the Separation Date.  Employee specifically acknowledges and agrees that he is entitled to receive no severance pay or other severance benefits pursuant to any severance plan or policy of the Company or any of its affiliates.  Nothing contained in this Section II shall be construed as curtailing Employee’s rights to elect to make portable any insurance benefits provided to him by the Company as may be available to him pursuant to the terms of the applicable insurance arrangements.

 

III.           Mutual Nondisparagement; Press Release.  Employee agrees that he shall not, directly or indirectly, make or ratify any statement, public or private, oral or written, to any person that disparages, either professionally or personally, the Company or any of its affiliates, past and present, and each of them, as well as its and their trustees, directors, officers, members, managers, partners, agents, attorneys, insurers, employees, stockholders, representatives, assigns, and successors, past and present, and each of them, or make any statement or engage in any conduct that has the purpose or effect of disrupting the business of the Company or any of its affiliates.  The Company agrees that it shall not, and it shall take reasonable steps to ensure that its officers or directors shall not, directly or indirectly, make or ratify any statement, public or private, oral or written, to any person that disparages Employee, either professionally or personally.  A copy of the form of press release announcing Employee’s employment termination is attached hereto as Exhibit E.  Any other Company press release (whether internal or external) issued by the public relations department of the Company with respect to Employee’s employment termination shall require the approval of Employee.  Employee acknowledges that any characterization of his resignation as a “retirement” in any press release or similar communication shall not affect Employee’s rights or benefits under any employee benefit plan or program, including, without limitation, any Retirement Plan.

 

IV.           Releases.

 

A.    Release by Employee.  Employee on behalf of himself, his descendants, dependents, heirs, executors, administrators, assigns, and successors, and each of them, hereby covenants not to sue and fully releases and discharges each of AMCEH, Holdings and AMC and each of its and their respective parents, subsidiaries and affiliates, past and present, as well as its and their trustees, directors, officers, members, managers, partners, agents, attorneys, insurers, employees, stockholders, representatives, assigns, and successors, past and present, and each of them, hereinafter together and collectively referred to as the “Releasees,” with respect to and from any and all claims, wages, demands, rights, liens, agreements, contracts, covenants,

 

2



 

actions, suits, causes of action, obligations, debts, costs, expenses, attorneys’ fees, damages, judgments, orders and liabilities of whatever kind or nature in law, equity or otherwise, whether now known or unknown, suspected or unsuspected, and whether or not concealed or hidden, which he now owns or holds or he has at any time heretofore owned or held or may in the future hold as against any of said Releasees, arising out of or in any way connected, in whole or in part, with his service as an officer, director, employee, member or manager of any Releasee, his separation from his position as an officer, director, employee, manager and/or member, as applicable, of any Releasee, or any other transactions, occurrences, acts or omissions or any loss, damage or injury whatever, known or unknown, suspected or unsuspected, resulting from any act or omission by or on the part of said Releasees, or any of them, committed or omitted prior to the date of this Separation Agreement including, without limiting the generality of the foregoing, any claim under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act of 1993, the Missouri Human Rights Act of 1986, as amended, and applicable state and local law or any claim for severance pay, bonus, sick leave, holiday pay, vacation pay, life insurance, health or medical insurance or any other fringe benefit, workers’ compensation or disability; provided that such release shall not apply to (1) the benefits due to Employee under Section II in connection with the execution and delivery of this Separation Agreement; (2) any rights Employee has to the put right set forth in Section VIII.B; (3) any right that Employee may have to indemnification pursuant to the Company’s certificate of incorporation, bylaws, Section 8 of the Employment Agreement (as defined in Section VIII.B) or under applicable laws with respect to any losses that Employee may have incurred or may in the future incur with respect to his past service as an officer or employee of the Company; and (4) with respect to any such losses, any rights that Employee may have to insurance coverage for such losses under any Company directors and officers liability insurance policy.  In addition, this release does not cover any claim that cannot be released as a matter of applicable law.

 

B.    Release by the Company.  The Company, on behalf of its employees, officers, directors, divisions, subsidiaries, parents, affiliates, assigns and successors, and each of them, hereby acknowledges full and complete satisfaction of and releases and discharges and covenants not to sue Employee, his descendants, dependents, heirs, executors, administrators, assigns and successors, and each of them, from and with respect to any and all claims, agreements, obligations, demands and causes of action, known or unknown, suspected or unsuspected, arising out of or in any way connected, in whole or in part, with Employee’s employment, the termination thereof, or any other relationship with or interest in the Company resulting from or arising out of any act or omission by or on the part of Employee committed or omitted prior to the date of this Separation Agreement; provided, however, that the foregoing release does not apply to any breach by Employee of his fiduciary duties to the Company, to fraud by Employee, or to any claim that cannot be released as a matter of applicable law.

 

C.    Additional Release by Employee.  In addition to the release set forth in Section IV.A above, and subject to the exceptions set forth therein, Employee, on his own behalf and behalf of his descendants, dependents, heirs, executors, administrators, assigns and successors, and each of them, hereby acknowledges full and complete satisfaction of and releases and discharges and covenants not to sue any director, officer, shareholder, partner, representative, attorney, agent or employee, past or present, of any Company Releasee, from and with respect to any and all claims, agreements, obligations, demands and causes of action

 

3



 

(collectively, “Known Claims”), arising out of or in any way connected with Employee’s employment or any other relationship with or interest in the Company.

 

D.    Additional Release by the Company.  In addition to the release set forth in Section IV.B above, and subject to the exceptions set forth therein, the Company, on behalf of its employees, officers, directors, divisions, subsidiaries, parents, affiliates, assigns and successors, and each of them, hereby acknowledges full and complete satisfaction of and releases and discharges and covenants not to sue any director, officer, shareholder, partner, representative, attorney, agent or employee, past or present, of Employee, any entities he controls, his descendants, dependents, heirs, executors, administrators, assigns and successors, from and with respect to any Known Claims.

 

V.            ADEA Waiver.  Employee expressly acknowledges and agrees that by entering into this Separation Agreement, he is waiving any and all rights or claims that he may have arising under the Age Discrimination in Employment Act of 1967, as amended, which have arisen on or before the date of execution of this Separation Agreement.  Employee further expressly acknowledges and agrees that:

 

A.    In return for this Separation Agreement, he will receive consideration beyond that which he was already entitled to receive before entering into this Separation Agreement;

 

B.    He is hereby advised in writing by this Separation Agreement to consult with an attorney before signing this Separation Agreement;

 

C.    He was informed that he had twenty-one (21) days within which to consider this Separation Agreement (or to waive such period if he so desired by executing Exhibit C hereto); and

 

D.    He was informed that he had seven (7) days following the date of execution of this Separation Agreement in which to revoke this Separation Agreement.

 

VI.           No Transferred Claims.  Employee warrants and represents that he has not heretofore assigned or transferred to any person not a party to this Separation Agreement any released matter or any part or portion thereof and he shall defend, indemnify and hold the Company and each of its affiliates harmless from and against any claim (including the payment of attorneys’ fees and costs actually incurred whether or not litigation is commenced) based on or in connection with or arising out of any such assignment or transfer made, purported or claimed.

 

VII.          Confidential Information.

 

A.    As provided in Section 9 of the Employment Agreement, Employee acknowledges that he possesses information relating to the Company and its affiliated companies and their respective operations that is confidential or a trade secret. Such information includes information, whether obtained in writing, in conversation or otherwise, concerning corporate strategy, intent and plans, business operations, pricing, costs, budgets, equipment, the status, scope and term of pending acquisitions, negotiations and transactions, the terms of

 

4



 

existing or proposed business arrangements, contracts and obligations, and corporate and financial reports. Such confidential or trade secret information shall not, however, include information in the public domain unless Employee has, without authority, made it public.  To the extent Employee’s disclosure of any such information is compelled by federal or state law, Employee agrees to advise (to the extent legally permitted) the Company in advance of any such compelled disclosure and acknowledge that it shall be only pursuant to a court order that protects the confidentiality of the information to the greatest extent permitted by law, and only to such persons and/or agencies authorized to receive such information under such order, with the costs of complying with such court order promptly reimbursed by the Company to Employee.

 

B.    Employee shall (i) keep such information confidential, (ii) take appropriate precautions to maintain the confidentiality of such information, and (iii) not use such information for personal benefit or the benefit of any competitor or any other person.

 

C.    Employee has returned all materials in his possession or under his control that were prepared by, relate to, or are the property of, the Company or its affiliates, including, but not limited to, materials containing confidential information, files, memorandums, price lists, reports, budgets and handbooks.

 

VIII.        Stock Options.

 

A.    Employee hereby voluntarily forfeits all of the options to purchase shares of Holdings common stock granted to Employee by Holdings, including, without limitation, those granted under the 2004 Stock Option Plan of Marquee Holdings Inc., as amended (the “Plan”) on December 23, 2004 (which options were converted into options to purchase shares of AMCEH common stock pursuant to the letter to sent to all optionholders on June 15, 2007), and disclaims any current or future right to any benefit or payment in respect thereof.

 

B.    Employee hereby elects to exercise the put right set forth in Section 7(c) of that certain Employment Agreement by and between Marquee, AMCE and Employee dated as of December 23, 2004 and amended as of January 26, 2006 (the “Employment Agreement”), with respect to all shares of common stock of the Company owned by or on behalf of Employee as of the Separation Date, as set forth on Exhibit D.  Employee shall be paid $323.95 for each share of Company common stock sold pursuant to the put right, at the same time that the Lump Sum Severance Payment is made.

 

IX.           Miscellaneous

 

A.    Successors.

 

1.          This Separation Agreement is personal to Employee and shall not, without the prior written consent of the Company, be assignable by Employee.

 

2.          This Separation Agreement shall inure to the benefit of and be binding upon the Company and its respective successors and assigns and any such successor or assignee shall be deemed substituted for the Company under the terms of this Separation Agreement for all purposes.  As used herein, “successor” and “assignee” shall include any

 

5



 

person, firm, corporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires the ownership of the Company or to which the Company assigns this Separation Agreement by operation of law or otherwise.

 

B.    WaiverNo waiver of any breach of any term or provision of this Separation Agreement shall be construed to be, nor shall be, a waiver of any other breach of this Separation Agreement.  No waiver shall be binding unless in writing and signed by the party waiving the breach.

 

C.    ModificationThis Separation Agreement may not be amended or modified other than by a written agreement executed by Employee and any successor to Employee as Chairman of the Board of Holdings (or, with prior authorization of the Board of Directors of Holdings, such Chairman’s designee).

 

D.    Complete Agreement.  This Separation Agreement constitutes and contains the entire agreement and final understanding concerning Employee’s relationship with the Company and its affiliates and the other subject matters addressed herein between the parties, and supersedes and replaces all prior negotiations and all agreements proposed or otherwise, whether written or oral, concerning the subject matters hereof, including, without limitation, the Employment Agreement.  Any representation, promise or agreement not specifically included in this Separation Agreement shall not be binding upon or enforceable against either party.  This Separation Agreement constitutes an integrated agreement.

 

E.     SeverabilityIf any provision of this Separation Agreement or the application thereof is held invalid, the invalidity shall not affect other provisions or applications of the Separation Agreement which can be given effect without the invalid provisions or applications and to this end the provisions of this Separation Agreement are declared to be severable.

 

F.     Choice of Law; Forum; Waiver of Jury Trial.  This Separation Agreement shall be deemed to have been executed and delivered within the State of Missouri, and the rights and obligations of the parties hereunder shall be construed and enforced in accordance with, and governed by, the laws of the State of Missouri without regard to principles of conflict of laws that would give effect to the laws of another jurisdiction.  Each party hereby consents to the exclusive jurisdiction of the state court located in or having jurisdiction over Jackson County, Missouri or the federal district court for the Western District of Missouri located in Kansas City, Missouri (or any other federal court with jurisdiction thereover) and each party irrevocably submits to the exclusive jurisdiction of each such court in any action or proceeding with respect to this Separation Agreement, waives any objection it may now have or hereafter have to venue or to convenience of such forum.  EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION RELATED TO OR ARISING OUT OF EMPOYEE’S EMPLOYMENT OR TERMINATION OR THIS SEPARATION AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.

 

G.    Cooperation in Drafting.  Each party has cooperated in the drafting and preparation of this Separation Agreement.  Hence, in any construction to be made of this

 

6



 

Separation Agreement, the same shall not be construed against any party on the basis that the party was the drafter.

 

H.    CounterpartsThis Separation Agreement may be executed in counterparts, and each counterpart, when executed, shall have the efficacy of a signed original.  Photographic copies of such signed counterparts may be used in lieu of the originals for any purpose.

 

I.      Advice of Counsel.  In entering this Separation Agreement, the parties represent that they have relied upon the advice of their attorneys, who are attorneys of their own choice, and that the terms of this Separation Agreement have been completely read and explained to them by their attorneys, and that those terms are fully understood and voluntarily accepted by them.

 

J.     Supplementary Documents.  All parties agree to cooperate fully and to execute any and all supplementary documents and to take all additional actions that may be necessary or appropriate to give full force to the basic terms and intent of this Separation Agreement and which are not inconsistent with its terms.

 

K.    Headings.  The section headings contained in this Separation Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Separation Agreement.

 

L.    Taxes.  The Company has the right to withhold from any payment hereunder or under any other agreement between the Company and Employee the amount required by law to be withheld with respect to such payment or other benefits provided to Employee.  Other than as to such withholding right, Employee shall be solely responsible for any taxes due as a result of the payments and benefits received by Employee contemplated by this Separation Agreement.

 

M.   Section 409A.  This Separation Agreement is intended to comply with Section 409A.  To the extent any party hereto reasonably determines that any provision of this Separation Agreement would subject Employee to the excise tax under Section 409A, the parties agree in good faith to cooperate to reform this Separation Agreement in a manner that would avoid the imposition of such tax on Employee while preserving any affected benefit or payment to the extent reasonably practicable without increasing the cost to the Company.  Nothing contained in this Separation Agreement is intended to constitute a guarantee of Employee’s personal tax treatment.

 

[Remainder of page intentionally left blank.]

 

7



 

I have read the foregoing Separation Agreement and I accept and agree to the provisions it contains and hereby execute it voluntarily with full understanding of its consequences.

 

EXECUTED this 23rd day of February 2009, at Jackson County, Missouri.

 

 

 

/s/ PETER C. BROWN

 

Peter C. Brown

 

 

 

 

 

AMC ENTERTAINMENT HOLDINGS, INC., and its divisions, subsidiaries, parents, and affiliated companies, past and present, and each of them

 

 

 

 

 

By:

/s/ CRAIG R. RAMSEY

 

Name:

Craig R. Ramsey

 

Title:

Executive Vice President and Chief Financial Officer

 

 

 

 

 

 

MARQUEE HOLDINGS INC.,

 

and its divisions, subsidiaries, parents, and affiliated companies, past and present, and each of them

 

 

 

 

 

By:

/s/ CRAIG R. RAMSEY

 

Name:

Craig R. Ramsey

 

Title:

Executive Vice President and Chief Financial Officer

 

 

 

 

 

AMC ENTERTAINMENT INC., and its divisions, subsidiaries, parents, and affiliated companies, past and present, and each of them

 

 

 

 

 

By:

/s/ CRAIG R. RAMSEY

 

Name:

Craig R. Ramsey

 

Title:

Executive Vice President and Chief Financial Officer

 

8



 

EXECUTION

 

EXHIBIT A

 

RESIGNATION LETTER

 

February 23, 2009

 

Boards of Directors

AMC Entertainment Holdings, Inc.

Marquee Holdings, Inc.

AMC Entertainment, Inc.

920 Main Street

Kansas City, Missouri 64105

 

Re:  Resignation

 

Ladies and Gentlemen:

 

As we have mutually agreed, I hereby resign, effective as of March 2, 2009, as Chairman of the Board, Chief Executive Officer, and President, and otherwise as an employee, officer, director, member, manager and in any other capacity, of AMC Entertainment Holdings, Inc., Marquee Holdings, Inc., AMC Entertainment Inc., American Multi-Cinema, Inc. and each of its and their parents, partnerships, subsidiaries, joint ventures, predecessors and affiliates, including, without limitation, MovieTickets.com, National CineMedia, Inc., Midland Empire Partners, LLC and Digital Cinema Implementation Partners, LLC.

 

 

Sincerely,

 

 

 

 

 

/s/ PETER C. BROWN

 

 

 

Peter C. Brown

 



 

EXECUTION

 

EXHIBIT B

 

American Multi-Cinema, Inc. 401(k) Savings Plan, a defined contribution 401(k) plan

 

Accrued vacation through March 2, 2009

 

Base salary through March 2, 2009

 

Reimbursement for previously unreimbursed business travel and entertainment expenses reasonably incurred prior to the Separation Date and timely submitted in accordance with Company policies

 



 

EXECUTION

 

EXHIBIT C

 

ENDORSEMENT

 

I, Peter C. Brown, hereby acknowledge that I was given 21 days to consider the foregoing Separation and General Release Agreement and voluntarily chose to sign the Separation and General Release Agreement prior to the expiration of the 21-day period.

 

I declare, under penalty of perjury, that the foregoing is true and correct.

 

*  *  *

 

EXECUTED this 23rd day of February 2009, at Jackson County, Missouri.

 

 

 

/s/ PETER C. BROWN

 

Peter C. Brown

 



 

EXECUTION

 

EXHIBIT D

 

Number of Shares of Common Stock of Holdings Owned by or on Behalf of Employee

 

2,542.00 shares

 



 

EXECUTION

 

EXHIBIT E

 

[Press Release Follows on Next Page]

 


Exhibit 10.2

 

EXECUTION

 

EMPLOYMENT AGREEMENT

 

THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into this 23rd day of February 2009, by and between AMC Entertainment Inc., a Delaware corporation (the “Company”), and Gerardo I. Lopez (the “Executive”).

 

RECITALS

 

THE PARTIES ENTER THIS AGREEMENT on the basis of the following facts, understandings and intentions:

 

A.            The Company desires to provide for the services of the Executive on the terms and conditions set forth in this Agreement.

 

B.            This Agreement shall govern the employment relationship between the Executive and the Company and supersedes and negates all previous agreements with respect to such relationship.

 

C.            The Executive desires to be employed by the Company on the terms and conditions set forth in this Agreement.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the above recitals incorporated herein and the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, the parties agree as follows:

 

1.                                      Retention and Duties.

 

1.1                               Retention.  The Company does hereby hire, engage and employ the Executive beginning on a date to be mutually agreed, not later than March 2, 2009 (such actual date of employment commencement, the “Effective Date”), and concluding on the last day of the Period of Employment (as such term is defined in Section 2) on the terms and conditions expressly set forth in this Agreement.  The Executive does hereby accept and agree to such hiring, engagement and employment, on the terms and conditions expressly set forth in this Agreement.

 

1.2                               Duties.  During the Period of Employment, the Executive shall serve the Company as its Chief Executive Officer and shall have the powers, authorities, duties and obligations of management usually vested in the office of the Chief Executive Officer of a company of a similar size and similar nature as the Company, and such other powers, authorities, duties and obligations commensurate with such positions as the Company’s Board of Directors (the “Board”) may assign from time to time, all subject to the directives of the Board and the corporate policies of the Company as they are in effect from time to time throughout the Period of Employment (including, without limitation, the Company’s business conduct and ethics policies, as they may change from time to time).  The Executive will be appointed to the Board as of the Effective Date.  During the Period of Employment, the Executive shall report to the Board.

 

1.3                               No Other Employment; Minimum Time Commitment.  During the Period of Employment, the Executive shall (i) devote substantially all of the Executive’s business

 



 

time, energy and skill to the performance of the Executive’s duties for the Company, (ii) perform such duties in a faithful, effective and efficient manner to the best of his abilities, and (iii) hold no other employment.  The Executive’s service on the boards of directors (or similar body) of other business entities is subject to the approval of the Board.  The Company shall have the right to require the Executive to resign from any board or similar body (including, without limitation, any association, corporate, civic or charitable board or similar body) on which he may then serve if the Board reasonably determines that the Executive’s service on such board or body interferes with the effective discharge of the Executive’s duties and responsibilities to the Company or that any business related to such service is then in competition with any business of the Company or any of its Affiliates (as such term is defined in Section 5.5), successors or assigns.  The Company hereby approves the Executive’s service as a member of the board of directors of Silk Group Global, a start-up company engaged in the design and sale of supply chain software, provided that the time commitment is consistent with that historically required of the Executive by Silk Group Global.

 

1.4                               No Breach of Contract.  The Executive hereby represents to the Company that: (i) the execution and delivery of this Agreement by the Executive and the Company and the performance by the Executive of the Executive’s duties hereunder do not and shall not constitute a breach of, conflict with, or otherwise contravene or cause a default under, the terms of any other agreement or policy to which the Executive is a party or otherwise bound or any judgment, order or decree to which the Executive is subject; (ii) the Executive has no information (including, without limitation, confidential information and trade secrets) relating to any other Person (as such term is defined in Section 5.5) which would prevent, or be violated by, the Executive entering into this Agreement or carrying out his duties hereunder; (iii) the Executive is not bound by any employment, consulting, non-compete, confidentiality, trade secret or similar agreement with any other Person; and (iv) the Executive understands the Company will rely upon the accuracy and truth of the representations and warranties of the Executive set forth herein and the Executive consents to such reliance.

 

1.5                               Location.  The Executive’s principal place of employment shall be the Company’s principal executive office as it may be located from time to time.  The Executive agrees that he will be regularly present at that office.  The Executive acknowledges that he will be required to travel from time to time in the course of performing his duties for the Company.  The Company acknowledges that the Executive may return to Birmingham, Michigan, where his family resides, on weekends, provided that such travel does not interfere with the performance of the Executive’s duties hereunder.

 

2.                                      Period of Employment.  The “Period of Employment” shall be a period of three years commencing on the Effective Date and ending at the close of business on the third anniversary of the Effective Date (the “Termination Date”); provided, however, that this Agreement shall be automatically renewed, and the Period of Employment shall be automatically extended, for one (1) additional year on the Termination Date and each anniversary of the Termination Date thereafter, unless either party gives written notice at least ninety (90) days prior to the expiration of the Period of Employment (including any renewal thereof) of such party’s desire to terminate the Period of Employment (such notice to be delivered in accordance with Section 17).  The term “Period of Employment” shall include any extension thereof pursuant to the preceding sentence.  Provision of notice that the Period of Employment shall not be extended or further extended, as the case may be, shall not constitute a breach of this Agreement and shall not constitute “Good

 

2



 

Reason” for purposes of this Agreement.  Notwithstanding the foregoing, the Period of Employment is subject to earlier termination as provided below in this Agreement.

 

3.                                      Compensation.

 

3.1                               Base Salary.  During the Period of Employment, the Company shall pay the Executive a base salary (the “Base Salary”), which shall be paid in accordance with the Company’s regular payroll practices in effect from time to time, but not less frequently than monthly.  The Executive’s Base Salary shall be at an annualized rate of seven hundred thousand dollars ($700,000).  The Board (or a committee thereof) will review the Executive’s rate of Base Salary on an annual basis and may, in its sole discretion, increase (but not decrease) the rate then in effect.

 

3.2                               Incentive Bonus.  The Executive shall be eligible to receive an incentive bonus for each fiscal year of the Company that occurs during the Period of Employment, except for the fiscal year ending in 2009 (“Incentive Bonus”); provided that, except as provided in Section 5.3, the Executive must be employed by the Company at the time that the Company pays its annual bonuses to officers generally with respect to any such fiscal year in order to be eligible for an Incentive Bonus with respect to that fiscal year (and, if the Executive is not so employed at such time, he shall not be considered to have “earned” any Incentive Bonus with respect to the fiscal year in question).  Any Incentive Bonus shall be paid to the Executive at the same that that the Company pays its annual bonuses to officers generally with respect to such fiscal year.  The Executive’s target Incentive Bonus amount for a particular fiscal year of the Company shall be determined by the Board (or a committee thereof) in its sole discretion, based on performance objectives (which may include corporate, business unit or division, financial, strategic, individual or other objectives) established with respect to that particular fiscal year by the Board (or a committee thereof).  The target Incentive Bonus for fiscal year 2010 shall equal 70% of the Base Salary.  The Executive acknowledges that any Incentive Bonus or other bonus received by the Executive shall be subject to mandatory repayment by the Executive if the payment was based on materially inaccurate financial statements or performance metrics.

 

3.3                               Stock Option Grant.

 

(a)           During the calendar quarter that includes the Effective Date, the committee that administers the Plan (as defined in Section 3.3(b)) will grant the Executive a stock option (the “Option”) to purchase 1.25% of the issued and outstanding shares of the common stock of AMC Entertainment Holdings, Inc. (“Holdings”) at a price per share equal to $323.95.

 

(b)           The Option will vest with respect to twenty percent (20%) of the shares subject to the Option on each of the first five (5) anniversaries of the grant date, subject to the Executive’s continued employment by the Company through the respective anniversary.  Notwithstanding the foregoing, all shares subject to the Option shall immediately vest upon the Executive’s Involuntary Termination (as such term is defined in Section 5.5) within twelve (12) months after a Change of Control (as such term is defined in Holdings’ Stock Incentive Plan (as amended, restated or supplemented from time to time, the “Plan”)).

 

(c)           The term of the Option shall expire upon the earlier of (i) ten (10) years from the grant date, (ii) ninety (90) days after the termination of the Executive’s employment for any reason other than with Cause or by reason of the death or Disability of the Executive,

 

3



 

(iii) twelve (12) months after the termination of the Executive’s employment by reason of death or Disability of the Executive, and (iv) the date upon which the Executive’s employment is terminated with Cause.

 

(d)           The Option shall not be an “incentive stock option” under Section 422 of the Internal Revenue Code, as amended (the “Code”).  The Option shall be granted under the Plan and shall be subject to such further terms and conditions as set forth in a written stock option agreement to be entered into by Holdings and the Executive to evidence the Option.  Such stock option agreement shall be in substantially the form delivered by the Company to the Executive in connection with the execution of this Agreement.

 

(e)           In the event of a distribution on the common stock of Holdings that dilutes the benefits intended to be made available under the Plan by the Option, the Option shall be equitably adjusted by the administrator of the Plan as the administrator deems appropriate consistent with the terms of the Plan as in effect from time to time.

 

3.4                               Special Incentive Bonus.

 

The Executive shall receive a special incentive bonus (the “Special Incentive Bonus”).  The Special Incentive Bonus shall equal $2,000,000 and shall vest in equal annual installments on each of the first five (5) anniversaries of the Effective Date, provided that the Executive must be employed by the Company on the respective anniversary (and if the Executive is not so employed on such date he shall not be considered to have earned any portion of the corresponding installment of the Special Incentive Bonus).  Notwithstanding the foregoing, the Special Incentive Bonus shall immediately vest in full upon the Executive’s Involuntary Termination within twelve (12) months after a Change of Control.  The first three installments of the Special Incentive Bonus shall be paid to the Executive on the third (3rd) anniversary of the Effective Date and the fourth (4th) and fifth (5th) installments of the Special Incentive Bonus shall be paid upon vesting; provided, however, that the Special Incentive Bonus, to the extent then vested and unpaid, shall be paid upon the Executive’s earlier Separation from Service (as defined in Section 5.5) for any reason.

 

4.             Benefits.

 

4.1                               Retirement, Welfare and Fringe Benefits.  During the Period of Employment, the Executive shall be entitled to participate in all retirement and welfare benefit plans and programs, and fringe benefit plans and programs, made available by the Company to the Company’s executive officers generally, in accordance with the eligibility and participation provisions of such plans and as such plans or programs may be in effect from time to time.

 

4.2                               Reimbursement of Business Expenses.  The Executive is authorized to incur reasonable expenses in carrying out the Executive’s duties for the Company under this Agreement and shall be entitled to reimbursement for all reasonable business expenses that the Executive incurs during the Period of Employment in connection with carrying out the Executive’s duties for the Company, subject to the Company’s expense reimbursement policies and any pre-approval policies in effect from time to time.

 

4.3                               Relocation Expenses.  The Company shall reimburse the Executive for costs incurred in connection with the shipment and packaging of his household goods (excluding

 

4



 

perishable items) and personal effects from Seattle, Washington to Kansas City, Missouri by a Company-designated shipper.  Reimbursement of the shipping expenses is subject to receipt by the Company of applicable documentation and compliance with applicable Company policies in effect from time to time.  Upon the Executive’s request, the Company shall provide reasonable and customary housing to the Executive and the Executive’s immediate family in the Kansas City, Missouri metropolitan area for a period of up to ninety (90) consecutive days while the Executive seeks permanent housing.  The Company shall also pay an allowance of $10,000 to cover miscellaneous relocation items not specifically enumerated.

 

4.4                               Coinvestment.  The Executive agrees, upon request by the Company prior to the three-month anniversary of the Effective Date, to make a cash purchase of 385.8620 shares of common stock of Holdings at a price of $323.95 per share.

 

5.                                      Termination.

 

5.1                               Termination by the Company.  The Executive’s employment by the Company, and the Period of Employment, may be terminated at any time by the Company: (i) with Cause (as such term is defined in Section 5.5), or (ii) without Cause, or (iii) in the event of the Executive’s death, or (iv) in the event that the Board determines in good faith that the Executive has a Disability (as such term is defined in Section 5.5).

 

5.2                               Termination by the Executive.  The Executive’s employment by the Company, and the Period of Employment, may be terminated by the Executive with no less than ninety (90) days’ advance written notice to the Company (such notice to be delivered in accordance with Section 17); provided, however, that in the case of a termination with Good Reason, the Executive may provide immediate written notice of termination once the applicable cure period (as contemplated by the definition of Good Reason) has lapsed if the Company has not reasonably cured the circumstances that gave rise to the basis for the termination with Good Reason.

 

5.3                               Benefits Upon Termination.  If the Executive’s employment by the Company is terminated during the Period of Employment for any reason by the Company or by the Executive, or upon or following the expiration of the Period of Employment (in any case, the date that the Executive’s employment by the Company terminates is referred to as the “Severance Date”), the Company shall have no further obligation to make or provide to the Executive, and the Executive shall have no further right to receive or obtain from the Company, any payments or benefits except as follows:

 

(a)           The Company shall pay the Executive (or, in the event of his death, the Executive’s estate) any Accrued Obligations (as such term is defined in Section 5.5);

 

(b)           If, during the Period of Employment, the Executive’s employment with the Company terminates as a result of an Involuntary Termination, the Company shall pay the Executive (in addition to the Accrued Obligations), subject to tax withholding and other authorized deductions, an amount equal to (x) two times his Base Salary plus (y) two times the average of each Incentive Bonus paid to the Executive during the 24 months preceding the Severance Date (or previous year, if the Executive has not been employed for two bonus cycles as of the Severance Date); provided, however, that if the Executive’s employment is terminated before determination of the first Incentive Bonus  for which the Executive is eligible under this Agreement then the amount in this part (y) shall be based upon the

 

5



 

average actual percentage of target bonus paid to executive officers who participated in the Company’s annual bonus plan in the preceding year.  Such amount is referred to hereinafter as the “Severance Benefit.”  Subject to Section 5.8(a), the Company shall pay the Severance Benefit to the Executive in substantially equal installments in accordance with the Company’s standard payroll practices over a period of twenty-four (24) consecutive months, with the first installment payable in the month following the month in which the Executive’s Separation from Service (as such term is defined in Section 5.5) occurs.  (For purposes of clarity, each such installment shall equal the applicable fraction of the aggregate Severance Benefit.  For example, if such installments were to be made on a monthly basis, each installment would equal 1/24th of the Severance Benefit.)

 

(c)           Notwithstanding the foregoing provisions of this Section 5.3, if the Executive breaches his obligations under Section 6 or under any other agreement that imposes restrictions with respect to the Executive’s activities at any time, from and after the date of such breach and not in any way in limitation of any right or remedy otherwise available to the Company, the Executive will no longer be entitled to, and the Company will no longer be obligated to pay, any remaining unpaid portion of the Severance Benefit; provided that, if the Executive provides the release contemplated by Section 5.4, in no event shall the Executive be entitled to a Severance Benefit payment of less than $5,000, which amount the parties agree is good and adequate consideration, standing alone, for the Executive’s release contemplated by Section 5.4.

 

(d)           The foregoing provisions of this Section 5.3 shall not affect: (i) the Executive’s receipt of any benefits otherwise due terminated employees under group insurance coverage consistent with the terms of an applicable Company welfare benefit plan; (ii) the Executive’s rights to continued health coverage under COBRA; or (iii) the Executive’s receipt of benefits otherwise due in accordance with the terms of the Company’s 401(k) plan (if any).

 

5.4                               Release; Exclusive Remedy.

 

(a)           This Section 5.4 shall apply notwithstanding anything else contained in this Agreement or any stock option or other equity-based award agreement to the contrary.  As a condition precedent to payment of the Severance Benefit or any obligation to accelerate vesting of any equity-based award or bonus on an Involuntary Termination following a Change of Control, the Executive shall, upon or promptly following his last day of employment with the Company, provide the Company and its Affiliates with a valid, executed general release agreement in a form acceptable to the Company (which form shall be substantially in the same form as that attached hereto as Exhibit A), and such release agreement shall have not been revoked by the Executive pursuant to any revocation rights afforded by applicable law.

 

(b)           The Executive agrees that the payments and benefits contemplated by Section 5.3 (and any applicable acceleration of any equity-based award or bonus on an Involuntary Termination following a Change of Control) shall constitute the exclusive and sole remedy for any termination of his employment and the Executive covenants not to assert or pursue any other remedies, at law or in equity, with respect to any termination of employment.  The Executive agrees to resign, on the Severance Date, as an officer and director of the Company and any Affiliate of the Company, and as a fiduciary of any benefit plan of the Company or any Affiliate of the Company, and to promptly execute

 

6



 

and provide to the Company any further documentation, as requested by the Company, to confirm such resignation.

 

5.5                               Certain Defined Terms.

 

(a)           As used herein, “Accrued Obligations” means:

 

(i)            any Base Salary that had accrued but had not been paid on or before the Severance Date; and

 

(ii)           any reimbursement due to the Executive pursuant to Section 4.2 for expenses reasonably incurred by the Executive on or before the Severance Date and documented and pre-approved, to the extent applicable, in accordance with the Company’s expense reimbursement policies in effect at the applicable time.

 

(b)           As used herein, “Affiliate” of the Company means a Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Company.  As used in this definition, the term “control,” including the correlative terms “controlling,” “controlled by” and “under common control with,” means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or any partnership or other ownership interest, by contract or otherwise) of a Person.  The term “Affiliate” shall not include any entity that would not otherwise be an Affiliate of the Company but for its ownership by any of J.P. Morgan Partners (BHCA), Apollo Investment Fund V, L.P., Bain Capital Investors, LLC, The Carlyle Group Partners III Loews, L.P., Spectrum Equity Investors, or their successors or related investment funds.

 

(c)           As used herein, “Cause” shall mean, as reasonably determined by the Board (excluding the Executive, if he is then a member of the Board) based on the information then known to it, that one or more of the following has occurred:

 

(i)            the Executive has committed a felony (under the laws of the United States or any relevant state, or a similar crime or offense under the applicable laws of any relevant foreign jurisdiction);

 

(ii)           the Executive has engaged in acts of fraud, dishonesty, gross negligence or other misconduct including abuse of controlled substances, that is injurious to the Company, its Affiliates or any of their customers, clients or employees;

 

(iii)          the Executive willfully fails to perform or uphold his duties under this Agreement and/or willfully fails to comply with reasonable directives of the Board, in either case, that is not remedied by the Executive within fifteen (15) days after written notice thereof has been delivered to the Executive; or

 

(iv)          any breach by the Executive of any provision of Section 6, or any material breach by the Executive of any other contract he is a party to with the Company or any of its Affiliates including the Code of Ethics or another material written policy.

 

7



 

(d)           As used herein, “Good Reason” shall mean a termination of the Executive’s employment by means of resignation by the Executive after the occurrence (without the Executive’s consent) of any one or more of the following conditions:

 

(i)            a material diminution in the Executive’s rate of Base Salary;

 

(ii)           a material diminution in the Executive’s authority, duties, or responsibilities;

 

(iii)          a material change in the geographic location of the Executive’s principal office with the Company (for this purpose, in no event shall a relocation of such office to a new location that is not more than fifty (50) miles from the current location of the Company’s executive offices constitute a “material change”); or

 

(iv)          a material breach by the Company of this Agreement;

 

provided, however, that any such condition or conditions, as applicable, shall not constitute grounds for a termination with Good Reason unless (x) the Executive provides written notice to the Company of the condition claimed to constitute grounds for a termination with Good Reason within thirty (30) days after the initial existence of such condition(s) (such notice to be delivered in accordance with Section 17), and (y) the Company fails to remedy such condition(s) within thirty (30) days of receiving such written notice thereof; and (z) the termination of the Executive’s employment with the Company shall not constitute a termination with Good Reason unless such termination occurs not more than one hundred and twenty (120) days following the initial existence of the condition claimed to constitute grounds for a termination with Good Reason.

 

(e)           As used herein, “Disability” shall mean a physical or mental impairment which, as reasonably determined by the Board, renders the Executive unable to perform the essential functions of his employment with the Company, even with reasonable accommodation that does not impose an undue hardship on the Company, for more than 90 days in any 180-day period, unless a longer period is required by federal or state law, in which case that longer period would apply.

 

(f)            As used herein, “Involuntary Termination” shall mean (i) a termination of the Executive’s employment by the Company without Cause (and other than due to Executive’s death or in connection with a good faith determination by the Board that the Executive has a Disability), or (ii) a termination with Good Reason.

 

(g)           As used herein, the term “Person” shall be construed broadly and shall include, without limitation, an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.

 

(h)           As used herein, a “Separation from Service” occurs when the Executive dies, retires, or otherwise has a termination of employment with the Company that constitutes a “separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h)(1), without regard to the optional alternative definitions available thereunder.

 

8



 

5.6                               Notice of Termination.  Any termination of the Executive’s employment under this Agreement shall be communicated by written notice of termination from the terminating party to the other party.  This notice of termination must be delivered in accordance with Section 17 and must indicate the specific provision(s) of this Agreement relied upon in effecting the termination.

 

5.7                               Limitation on Benefits.

 

(a)           To the extent that, prior to a Change of Control that occurs at a time that no stock of the Company or Holdings is readily tradable on an established securities market,  any payment, benefit or distribution of any type to or for the benefit of the Executive by the Company or any of its affiliates, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, any accelerated vesting of stock options or other equity-based awards or incentives) (collectively, the “Total Payments”) would be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then the Company shall submit for the vote of the stockholders of the Company (the “Stockholders”) the payments to the Executive in a manner that complies with the requirements of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder.  It shall be a prerequisite to the Company’s obligations under this Section 5.7(a) that the Executive shall have executed a valid waiver in a form reasonably satisfactory to the Company and sufficient to enable the Stockholders’ approval to have the effect that no payments to the Executive would be subject to the excise tax under Section 4999 of the Code.  If the exemption described in Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder does not apply, then the procedures set forth in Section 5.7(b) and Section 5.7(c) hereof shall apply.

 

(b)           Notwithstanding anything contained in this Agreement to the contrary, to the extent that the Total Payments would be subject to Section 4999 of the Code, then the Total Payments shall be reduced (but not below zero) so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount which would cause the Total Payments to be subject to the excise tax imposed by Section 4999 of the Code.  Unless the Executive shall have given prior written notice to the Company to effectuate a reduction in the Total Payments that complies with the requirements of Section 409A of the Code to avoid the imputation of any tax, penalty or interest thereunder, the Company shall reduce or eliminate the Total Payments by first reducing or eliminating any cash severance benefits (with the payments to be made furthest in the future being reduced first), then by reducing or eliminating any accelerated vesting of stock options or similar awards, then by reducing or eliminating any other remaining Total Payments.  The preceding provisions of this Section 5.7(b) shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.

 

(c)           Any determination that Total Payments to the Executive must be reduced or eliminated in accordance with Section 5.7(b) and the assumptions to be utilized in arriving at such determination, shall be made by the Board in the exercise of its reasonable, good faith discretion based upon the advice of such professional advisors it may deem appropriate in the circumstances.  As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Board hereunder, it is possible that Total Payments to the Executive which will not have

 

9



 

been made by the Company should have been made (“Underpayment”).  If an Underpayment has occurred, the amount of any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive.  In the event that any Total Payment made to the Executive shall be determined to otherwise result in the imposition of any tax under Section 4999 of the Code, then the Executive shall promptly repay to the Company the amount of any such Underpayment together with interest on such amount (at the same rate as is applied to determine the present value of payments under Section 280G of the Code or any successor thereto), from the date the reimbursable payment was received by the Executive to the date the same is repaid to the Company.

 

5.8                               Section 409A.

 

(a)           If the Executive is a “specified employee” within the meaning of Treasury Regulation Section 1.409A-1(i) as of the date of the Executive’s Separation from Service, the Executive shall not be entitled to the Severance Benefit until the earlier of (i) the date which is six (6) months after his or her Separation from Service for any reason other than death, or (ii) the date of the Executive’s death.  The provisions of this paragraph shall apply only if, and to the extent, required to avoid the imputation of any tax, penalty or interest pursuant to Section 409A of the Code.  Any amounts otherwise payable to the Executive upon or in the six (6) month period following the Executive’s Separation from Service that are not so paid by reason of this Section 5.8(a) shall be paid (without interest) as soon as practicable (and in all events within thirty (30) days) after the date that is six (6) months after the Executive’s Separation from Service (or, if earlier, as soon as practicable, and in all events within thirty (30) days, after the date of the Executive’s death).

 

(b)           It is intended that any amounts payable under this Agreement and the Company’s and the Executive’s exercise of authority or discretion hereunder shall comply with and avoid the imputation of any tax, penalty or interest under Section 409A of the Code.  This Agreement shall be construed and interpreted consistent with that intent.  Nothing contained herein is intended to provide a guarantee of tax treatment to the Executive.

 

6.                                      Protective Covenants.

 

6.1                               Confidential Information; Inventions.

 

(a)           The Executive shall not disclose or use at any time, either during the Period of Employment or thereafter, any Confidential Information (as defined below) of which the Executive is or becomes aware, whether or not such information is developed by him, except to the extent that such disclosure or use is directly related to and required by the Executive’s performance in good faith of duties for the Company.  The Executive will take all appropriate steps to safeguard Confidential Information in his possession and to protect it against disclosure, misuse, espionage, loss and theft.  The Executive shall deliver to the Company at the termination of the Period of Employment, or at any time the Company may request, all memoranda, notes, plans, records, reports, computer tapes and software and other documents and data (and copies thereof) relating to the Confidential Information or the Work Product (as hereinafter defined) of the business of the Company or any of its Affiliates which the Executive may then possess or have under his control.  Notwithstanding the foregoing, the Executive may truthfully respond to a lawful and valid subpoena or other legal process, but shall give the Company the earliest possible notice thereof, shall, as much in advance of the return date as possible, make

 

10



 

available to the Company and its counsel the documents and other information sought, and shall assist the Company and such counsel in resisting or otherwise responding to such process.

 

(b)                                 As used in this Agreement, the term “Confidential Information” means information that is not generally known to the public and that is used, developed or obtained by the Company in connection with its business, including, but not limited to, information, observations and data obtained by the Executive while employed by the Company or any predecessors thereof (including those obtained prior to the Effective Date) concerning (i) the business or affairs of the Company (or such predecessors), (ii) products or services, (iii) fees, costs, compensation and pricing structures, (iv) designs, (v) analyses, (vi) drawings, photographs and reports, (vii) computer software, including operating systems, applications and program listings, (viii) flow charts, manuals and documentation, (ix) data bases, (x) accounting and business methods, (xi) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not reduced to practice, (xii) customers and clients and customer or client lists, (xiii) other copyrightable works, (xiv) all production methods, processes, technology and trade secrets, and (xv) all similar and related information in whatever form.  Confidential Information will not include any information that has been published (other than a disclosure by the Executive in breach of this Agreement) in a form generally available to the public prior to the date the Executive proposes to disclose or use such information.  Confidential Information will not be deemed to have been published merely because individual portions of the information have been separately published, but only if all material features comprising such information have been published in combination.

 

(c)                                  As used in this Agreement, the term “Work Product” means all inventions, innovations, improvements, technical information, systems, software developments, methods, designs, analyses, drawings, reports, service marks, trademarks, trade names, logos and all similar or related information (whether patentable or unpatentable, copyrightable, registerable as a trademark, reduced to writing, or otherwise) which relates to the Company’s or any of its Affiliates’ actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by the Executive (whether or not during usual business hours, whether or not by the use of the facilities of the Company or any of its Affiliates, and whether or not alone or in conjunction with any other person) while employed by the Company (including those conceived, developed or made prior to the Effective Date) together with all patent applications, letters patent, trademark, trade name and service mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing.  All Work Product that the Executive may have discovered, invented or originated during his employment by the Company or any of its Affiliates prior to the Effective Date, that he may discover, invent or originate during the Period of Employment or at any time in the period of twelve (12) months after the Severance Date, shall be the exclusive property of the Company and its Affiliates, as applicable, and Executive hereby assigns all of Executive’s right, title and interest in and to such Work Product to the Company or its applicable Affiliate, including all intellectual property rights therein.  Executive shall promptly disclose all Work Product to the Company, shall execute at the request of the Company any assignments or other documents the Company may deem necessary to protect or perfect its (or any of its Affiliates’, as applicable) rights therein, and shall assist the Company, at the Company’s expense, in obtaining, defending and enforcing the Company’s (or any of its Affiliates’, as applicable) rights therein.  The Executive hereby appoints the Company as his attorney-in-fact to execute on his behalf

 

11



 

any assignments or other documents deemed necessary by the Company to protect or perfect the Company, the Company’s (and any of its Affiliates’, as applicable) rights to any Work Product.

 

6.2                               Restriction on Competition.  The Executive agrees that if the Executive were to become employed by, or substantially involved in, the business of a competitor of the Company or any of its Affiliates during the twenty-four (24) months following the Severance Date, it would be very difficult for the Executive not to rely on or use the Company’s and its Affiliates’ trade secrets and confidential information.  Thus, to avoid the inevitable disclosure of the Company’s and its Affiliates’ trade secrets and confidential information, and to protect such trade secrets and confidential information and the Company’s and its Affiliates’ relationships and goodwill with customers, during the Period of Employment and for a period of twenty-four (24) months after the Severance Date, the Executive will not directly or indirectly through any other Person engage in, enter the employ of, render any services to, have any ownership interest in, nor participate in the financing, operation, management or control of, any Competing Business.  For purposes of this Agreement, the phrase “directly or indirectly through any other Person engage in” shall include, without limitation, any direct or indirect ownership or profit participation interest in such enterprise, whether as an owner, stockholder, member, partner, joint venturer or otherwise, and shall include any direct or indirect participation in such enterprise as an employee, consultant, director, officer, licensor of technology or otherwise.  For purposes of this Agreement, “Competing Business” means a Person anywhere in the continental United States or elsewhere in the world where the Company or any of its Affiliates engage in business, or reasonably anticipate engaging in business, on the Severance Date (the “Restricted Area”) that at any time during the Period of Employment has competed, or at any time during the twelve (12) month period following the Severance Date competes, with the Company or any of its Affiliates in any of its or their businesses, including, without limitation, theatrical exhibition, digital cinema, internet ticketing and virtual box office for theatrical exhibitions, IMAX or other three dimensional screened entertainment, pre-show content, cinema or lobby advertising products, meeting and event services or special in-theater events.  Nothing herein shall prohibit the Executive from (i) being a passive owner of not more than 2% of the outstanding stock of any class of a corporation that is publicly traded, so long as the Executive has no active participation in the business of such corporation, (ii) providing services to a Person otherwise engaged in a Competing Business, provided the Executive provides no services to any business operated, managed or controlled by such Person that causes such Person to constitute a Competing Business, or (iii) providing services to a Person the business or businesses of which are unrelated to theatrical exhibition.

 

6.3                               Non-Solicitation of Employees and Consultants.  During the Period of Employment and for a period of twenty-four (24) months after the Severance Date, the Executive will not directly or indirectly through any other Person (i) induce or attempt to induce any employee or independent contractor of the Company or any Affiliate of the Company to leave the employ or service, as applicable, of the Company or such Affiliate, or in any way interfere with the relationship between the Company or any such Affiliate, on the one hand, and any employee or independent contractor thereof, on the other hand, or (ii) hire any person who was an employee of the Company or any Affiliate of the Company until twelve (12) months after such individual’s employment relationship with the Company or such Affiliate has been terminated.

 

12



 

6.4                               Non-Solicitation of Customers.  During the Period of Employment and for a period of twenty-four (24) months after the Severance Date, the Executive will not directly or indirectly through any other Person influence or attempt to influence customers, vendors, suppliers, licensors, lessors, joint venturers, associates, consultants, agents, or partners of the Company or any Affiliate of the Company to divert their business away from the Company or such Affiliate, and the Executive will not otherwise interfere with, disrupt or attempt to disrupt the business relationships, contractual or otherwise, between the Company or any Affiliate of the Company, on the one hand, and any of its or their customers, suppliers, vendors, lessors, licensors, joint venturers, associates, officers, employees, consultants, managers, partners, members or investors, on the other hand.

 

6.5                               Nondisparagement.  The Executive acknowledges and agrees that he will not defame, disparage or publicly criticize, directly or through another Person, the services, business or reputation of the Company or any of its officers, directors, partners, employees, Affiliates or agents in either a professional or personal manner either during his employment with the Company or thereafter.

 

6.6                               Understanding of Covenants.  The Executive acknowledges that, in the course of his employment with the Company and/or its Affiliates and their predecessors, he has become familiar, or will become familiar, with the Company’s and its Affiliates’ and their predecessors’ trade secrets and with other confidential and proprietary information concerning the Company, its Affiliates and their respective predecessors and that his services have been and will be of special, unique and extraordinary value to the Company and its Affiliates.  The Executive agrees that the foregoing covenants set forth in this Section 6 (together, the “Restrictive Covenants”) are reasonable and necessary to protect the Company’s and its Affiliates’ trade secrets and other confidential and proprietary information, good will, stable workforce, and customer relations.

 

Without limiting the generality of the Executive’s agreement in the preceding paragraph, the Executive (i) represents that he is familiar with and has carefully considered the Restrictive Covenants, (ii) represents that he is fully aware of his obligations hereunder, (iii) agrees to the reasonableness of the length of time, scope and geographic coverage, as applicable, of the Restrictive Covenants, (iv) agrees that the Company and its Affiliates currently conducts business throughout the Restricted Area, and (v) agrees that the Restrictive Covenants will continue in effect for the applicable periods set forth above in this Section 6 regardless of whether the Executive is then entitled to receive severance pay or benefits from the Company.  The Executive understands that the Restrictive Covenants may limit his ability to earn a livelihood in a business similar to the business of the Company and any of its Affiliates, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), the Executive does not believe would prevent him from otherwise earning a living.  The Executive agrees that the Restrictive Covenants do not confer a benefit upon the Company disproportionate to the detriment of the Executive.

 

6.7                               Enforcement.  The Executive agrees that the Executive’s services are unique and that he has access to Confidential Information and Work Product.  Accordingly, without limiting the generality of Section 17, the Executive agrees that a breach by the Executive of any of the covenants in this Section 6 would cause immediate and irreparable harm to the Company that would be difficult or impossible to measure, and that damages to the

 

13



 

Company for any such injury would therefore be an inadequate remedy for any such breach.  Therefore, the Executive agrees that in the event of any breach or threatened breach of any provision of this Section 6 or any similar provision, the Company shall be entitled, in addition to and without limitation upon all other remedies the Company may have under this Agreement, at law or otherwise, to obtain specific performance, injunctive relief and/or other appropriate relief (without posting any bond or deposit) in order to enforce or prevent any violations of the provisions of this Section 6 or any similar provision, as the case may be, or require the Executive to account for and pay over to the Company all compensation, profits, moneys, accruals, increments or other benefits derived from or received as a result of any transactions constituting a breach of this Section 6 or any similar provision, as the case may be, if and when final judgment of a court of competent jurisdiction or arbitrator is so entered against the Executive.  The Executive further agrees that the applicable period of time any Restrictive Covenant is in effect following the Severance Date, as determined pursuant to the foregoing provisions of this Section 6, such period of time shall be extended by the same amount of time that Executive is in breach of any Restrictive Covenant.

 

6.8                               The Executive agrees to execute any additional documentation as may reasonably be requested by the Company in furtherance of the enforcement of any Restrictive Covenant.

 

7.                                      Withholding Taxes.  Notwithstanding anything else herein to the contrary, the Company may withhold (or cause there to be withheld, as the case may be) from any amounts otherwise due or payable under or pursuant to this Agreement such federal, state and local income, employment, or other taxes as may be required to be withheld pursuant to any applicable law or regulation.

 

8.                                      Successors and Assigns.

 

8.1                               This Agreement is personal to the Executive and without the prior written consent of the Company shall not be assignable by the Executive otherwise than by will or the laws of descent and distribution.  This Agreement shall inure to the benefit of and be enforceable by the Executive’s legal representatives.

 

8.2                               This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.  As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any assignee or successor to all or substantially all of the Company’s assets, as applicable, which assumes this Agreement by operation of law or otherwise.

 

9.                                      Number and Gender; Examples.  Where the context requires, the singular shall include the plural, the plural shall include the singular, and any gender shall include all other genders.  Where specific language is used to clarify by example a general statement contained herein, such specific language shall not be deemed to modify, limit or restrict in any manner the construction of the general statement to which it relates.

 

10.                               Section Headings.  The section headings of, and titles of paragraphs and subparagraphs contained in, this Agreement are for the purpose of convenience only, and they neither form a part of this Agreement nor are they to be used in the construction or interpretation thereof.

 

14



 

11.                               Governing Law; Arbitration; Waiver of Jury Trial.

 

11.1                        THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED.  IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF DELAWARE WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION’S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.

 

11.2                        Except for the limited purpose provided in Section 16, any legal dispute related to this Agreement and/or any claim related to this Agreement, or breach thereof, shall, in lieu of being submitted to a court of law, be submitted to arbitration, in accordance with the applicable dispute resolution procedures of the American Arbitration Association. The award of the arbitrator shall be final and binding upon the parties.  The parties hereto agree that (i) one arbitrator shall be selected pursuant to the rules and procedures of the American Arbitration Association, (ii) the arbitrator shall have the power to award injunctive relief or to direct specific performance, (iii) each of the parties, unless otherwise required by applicable law, shall bear its own attorneys’ fees, costs and expenses and an equal share of the arbitrator’s and administrative fees of arbitration, and (iv) the arbitrator shall award to the prevailing party a sum equal to that party’s share of the arbitrator’s and administrative fees of arbitration.  Nothing in this Section 11 shall be construed as providing the Executive a cause of action, remedy or procedure that the Executive would not otherwise have under this Agreement or the law.

 

11.3                        EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

 

12.                               Severability.  It is the desire and intent of the parties hereto that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought.  Accordingly, if any particular provision of this Agreement shall be adjudicated by an arbitrator or court of competent jurisdiction to be invalid, prohibited or unenforceable under any present or future law, and if the rights and obligations of any party under this Agreement will not be materially and adversely affected thereby, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction, and to this end the provisions of this Agreement are declared to be severable; furthermore, in lieu of such invalid or unenforceable provision there will be added automatically as a part of this Agreement, a legal, valid and enforceable provision as similar in terms to such invalid or unenforceable provision as may be possible.  Notwithstanding the foregoing, if such provision could be more narrowly drawn (as to geographic scope, period of duration or otherwise) so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

 

13.                               Entire Agreement.  This Agreement embodies the entire agreement of the parties hereto respecting the matters within its scope.  This Agreement supersedes all prior and contemporaneous agreements of the parties hereto that directly or indirectly bears upon the

 

15



 

subject matter hereof, including, without limitation, the term sheet prepared in connection herewith.  Any prior negotiations, correspondence, agreements, proposals or understandings relating to the subject matter hereof shall be deemed to have been merged into this Agreement, and to the extent inconsistent herewith, such negotiations, correspondence, agreements, proposals, or understandings shall be deemed to be of no force or effect.  There are no representations, warranties, or agreements, whether express or implied, or oral or written, with respect to the subject matter hereof, except as expressly set forth herein.  Notwithstanding the foregoing integration provisions, the Executive acknowledges having received and read the Company’s Code of Ethics and agrees to conduct himself in accordance therewith as in effect from time to time.

 

14.                               Modifications.  This Agreement may not be amended, modified or changed (in whole or in part), except by a formal, definitive written agreement expressly referring to this Agreement, which agreement is executed by both of the parties hereto.

 

15.                               Waiver.  Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence.  No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.

 

16.                               Remedies.  Each of the parties to this Agreement and any such person or entity granted rights hereunder whether or not such person or entity is a signatory hereto shall be entitled to enforce its rights under this Agreement specifically to recover damages and costs for any breach of any provision of this Agreement and to exercise all other rights existing in its favor.  The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that each party may in its sole discretion apply to any court of law or equity of competent jurisdiction for specific performance, injunctive relief and/or other appropriate equitable relief (without posting any bond or deposit) in order to enforce or prevent any violations of the provisions of this Agreement.  Each party shall be responsible for paying its own attorneys’ fees, costs and other expenses pertaining to any such legal proceeding and enforcement regardless of whether an award or finding or any judgment or verdict thereon is entered against either party.

 

17.                               Notices.  Any notice provided for in this Agreement must be in writing and must be either personally delivered, transmitted via telecopier, mailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the recipient at the address below indicated or at such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party.  Notices will be deemed to have been given hereunder and received when delivered personally, when received if transmitted via telecopier, five days after deposit in the U.S. mail and one day after deposit on a weekday with a reputable overnight courier service.

 

if to the Company:

 

AMC Entertainment Inc.
920 Main Street

Kansas City, MO  64105

 

16



 

Facsimile: (816) 480-4700
Attn:
                    Board of Directors

 

with a copy to:

 

O’Melveny & Myers LLP

Times Square Tower

7 Times Square

New York, NY  10019

Facsimile: (212) 326-2061
Attn:
                    Ilan S. Nissan, Esq.

Christian C. Nugent, Esq.

 

if to the Executive, to the address most recently on file in the payroll records of the Company

 

with a copy to:

 

Williams, Williams, Rattner & Plunkett, P.C.

380 North Old Woodward Avenue, Suite 300

Birmingham, Michigan  48009

Facsimile:   (248) 642-0856

Attn:   Richard D. Rattner, Esq.

Richard J. Williams, Jr., Esq.

 

18.                               Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature appears thereon, and all of which together shall constitute one and the same instrument.  This Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories.  Photographic copies of such signed counterparts may be used in lieu of the originals for any purpose.

 

19.                               Legal Counsel; Mutual Drafting.  Each party recognizes that this is a legally binding contract and acknowledges and agrees that they have had the opportunity to consult with legal counsel of their choice.  Each party has cooperated in the drafting, negotiation and preparation of this Agreement.  Hence, in any construction to be made of this Agreement, the same shall not be construed against either party on the basis of that party being the drafter of such language.  The Executive agrees and acknowledges that he has read and understands this Agreement, is entering into it freely and voluntarily, and has been advised to seek counsel prior to entering into this Agreement and has had ample opportunity to do so.

 

[The remainder of this page has intentionally been left blank.]

 

17



 

IN WITNESS WHEREOF, the Company and the Executive have executed this Agreement as of February 23, 2009.

 

 

“COMPANY”

 

 

 

AMC Entertainment Inc.

 

 

 

 

By:

/s/ CRAIG R. RAMSEY

 

Name:

Craig R. Ramsey

 

Title:

Executive Vice President and Chief Financial Officer

 

 

 

 

“EXECUTIVE”

 

 

 

/s/ GERARDO I. LOPEZ

 

 Gerardo I. Lopez

 



 

Exhibit A

 

FORM OF RELEASE(1)

 

1.                                       Release by Executive.  Gerardo I. Lopez (the “Executive”), on his own behalf, on behalf of any entities he controls and on behalf of his descendants, dependents, heirs, executors, administrators, assigns and successors, and each of them, hereby acknowledges full and complete satisfaction of and releases and discharges and covenants not to sue AMC ENTERTAINMENT HOLDINGS, INC. (“Holdings”), MARQUEE HOLDINGS INC., a Delaware corporation (“Marquee”), AMC ENTERTAINMENT INC., a Delaware corporation (“AMCE,” and collectively with Holdings and Marquee, the “Company”), its and their divisions, subsidiaries, parents, or affiliated corporations, and each of its and their employees, officers and directors, past and present, and each of them, as well as its and their assignees and successors (individually and collectively, “Company Releasees”), from and with respect to any and all claims, agreements, obligations, demands and causes of action, known or unknown, suspected or unsuspected, arising out of or in any way connected, in whole or in part, with the Executive’s employment, the termination thereof, or any other relationship with or interest in the Company, including without limiting the generality of the foregoing, any claim for severance pay, profit sharing, bonus or similar benefit, pension, retirement, life insurance, health or medical insurance or any other fringe benefit, or disability, or any other claims, agreements, obligations, demands and causes of action, known or unknown, suspected or unsuspected, resulting from or arising out of, in whole or in part, any act or omission by or on the part of Company Releasees committed or omitted prior to the date of this release agreement (this “Agreement”), including, without limiting the generality of the foregoing, any claim under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, or any other federal, state or local law, regulation or ordinance; provided, however, that the foregoing release does not apply to any obligation of the Company to the Executive pursuant to (a) the benefits due to the Executive in connection with the execution and delivery of this Release Agreement pursuant to his employment agreement with AMCE dated as of [                        ] by and between the Company and the Executive, and (b) the equity-based awards previously granted by the Company to the Executive as referred to in Annex A(2) hereto (which shall be governed by and subject to termination pursuant to the terms and conditions of the written agreements evidencing the applicable awards).  In addition, this release does not cover any claim that cannot be released as a matter of applicable law.

 

2.                                       Waiver of Civil Code Section 1542.  This Agreement is intended to be effective as a general release of and bar to each and every claim, agreement, obligation, demand and cause of action hereinabove specified (collectively, the “Claims”).  Accordingly, the Executive hereby expressly waives any rights and benefits conferred by Section 1542 of the California Civil Code as to the Claims.  Section 1542 of the California Civil Code provides:

 

“A GENERAL RELEASE DOES NOT EXTEND TO A CLAIM WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”]

 

The Executive acknowledges that he later may discover claims, demands, causes of action or facts in addition to or different from those which the Executive now knows or believes to exist with respect to the subject matter of this Agreement and which, if known or suspected at the time of executing this

 


 (1) Subject to revision to the extent advisable based on changes in law or legal interpretation.

 (2) Annex A to be added to Release at time of signing.

 



 

Agreement, may have materially affected its terms.  Nevertheless, the Executive hereby waives, as to the Claims, any claims, demands, and causes of action that might arise as a result of such different or additional claims, demands, causes of action or facts.

 

4.                                       ADEA Waiver.  The Executive expressly acknowledges and agrees that by entering into this Agreement, he is waiving any and all rights or claims that he may have arising under the Age Discrimination in Employment Act of 1967, as amended, which have arisen on or before the date of execution of this Agreement.  The Executive further expressly acknowledges and agrees that:

 

(a)          In return for this Agreement, he will receive consideration beyond that to which he would have been entitled had he not entered into this Agreement;

 

(b)         He is hereby advised in writing by this Agreement to consult with an attorney before signing this Agreement;

 

(c)          He was given a copy of this Agreement on [                    , 20    ] and informed that he had twenty-one (21) days within which to consider the Agreement; and

 

(d)         He was informed that he has seven (7) days following the date of execution of the Agreement in which to revoke the Agreement.

 

5.                                       No Transferred Claims.  The Executive represents and warrants to the Company that he has not heretofore assigned or transferred to any person other than the Company any released matter or any part or portion thereof.(3)

 

[Continued on the next page.]

 


 (3) Company reserves the right to request a separate release from the Executive’s spouse at the time of execution.

 

2



 

The undersigned has read and understand the consequences of this Agreement and voluntarily sign it.  The undersigned declares under penalty of perjury under the laws of the State of Delaware that the foregoing is true and correct.

 

EXECUTED this                  day of                  20    , at                                              County, [State].

 

 

“Executive”

 

 

 

 

 

Gerardo I. Lopez

 

 

Acknowledged and agreed:

 

 

 

 

AMC ENTERTAINMENT HOLDINGS, INC.,

 

on behalf of itself and its divisions, subsidiaries, parents, and affiliated companies, past and present, and each of them

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

3


Exhibit 99.1

 

 

MEDIA CONTACTS
Laurie Roberts, 816/931-8900
lroberts@parriscommunications.com

 

AMC ENTERTAINMENT INC.

ANNOUNCES LEADERSHIP CHANGE

 

Chairman and CEO Peter C. Brown Retires;

Gerardo I. Lopez Named Chief Executive Officer and Director

 

 

FOR IMMEDIATE RELEASE

 

 

February 24, 2009

 

 

For further information, contact:

Laurie Roberts, 816/931-8900

 

Kansas City, Mo. - AMC Entertainment Inc. today announced that Peter C. Brown is retiring as Chairman of the Board, Chief Executive Officer and President of the Company.  AMC also announced the appointment of Gerardo I. (“Gerry”) Lopez as its Chief Executive Officer and his election to the Company’s Board of Directors.   Lopez most recently served as Executive Vice President of Starbucks Coffee Company and President of its Global Consumer Products, Seattle’s Best Coffee and Foodservice divisions.  The leadership changes are effective March 2, 2009.

 

“Peter Brown has been an integral part of AMC’s extraordinary growth and innovation,” noted Aaron Stone, a director since 2004 who has been named Chairman of the Board.  “His sustained leadership has guided AMC through many challenging events for our industry, as well as several key mergers and acquisitions that helped to build this company from a family-run operation into one of the world’s foremost theatrical exhibition and entertainment companies.  The Board truly appreciates Peter’s service and dedication to AMC over the last 18 years.”

 

“I am deeply honored to have played a key role in the success of AMC for nearly two decades.   Having helped the company grow from $400 million in revenues when I joined it to the $2.3 billion world-class company it has become,” said Brown, “the time is right for me to turn to the next phase of my life and to the opportunities that exist.  I leave the company confident that it is in the hands of a leader whose deep marketing and consumer background will take it to new heights.”

 

more —

 



 

Brown began his career with AMC in 1990 and became senior vice president and chief financial officer in 1991.  He served as Executive Vice President from August 1994 to January 1997 and as co-Chairman of the Board from May 1998 through July 1999.  In July 1999, Brown became Chairman and CEO of the company.  He was only the third Chairman in its 89 year history.

 

“We are very pleased to welcome Gerry Lopez to AMC,” said Chairman of the Board Stone.  “During his tenure at Starbucks, he was a key driver of their consumer products growth strategy, and Gerry is very well-suited to be CEO of AMC.  He is an outstanding leader with a proven history of creating dynamic strategic partnerships and intensely focusing on the customer experience.”

 

“I am extremely excited to be taking on this new role at AMC, and I look forward to working with the talented AMC team to achieve many successes in the future,” said Lopez.  “This year, and for years to come, we have a fantastic opportunity to grow our company and bring the AMC experience to new audiences.”

 

Prior to joining Starbucks, Lopez was president of the Handleman Entertainment Resources division of Handleman Company from November 2001 to September 2004, and its senior vice president and general manager from May 2000 to November 2001.  Previously, Lopez held a variety of executive management positions with Frito-Lay, Inc., Pepsi-Cola Company and Procter & Gamble Company.

 

Forward Looking Statements

 

Certain statements in this press release, as well as reports and other information the Company files with the Securities and Exchange Commission, include “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act.  The words “forecast,” “estimate,” “project,” “intend,” “expect,” “should,” “believe” and similar expressions are intended to identify forward-looking statements.  These forward-looking statements involve known and unknown risks, uncertainties, assumptions and other factors, which may cause the Company’s actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. These risks and uncertainties include, but are not limited to, the following: national, regional and local economic conditions that may affect the markets in which the

 

2



 

Company operates; the levels of expenditures on entertainment in general and movie theatres in particular; increased competition within movie exhibition or other competitive entertainment mediums; technological changes and innovations, including alternative methods for delivering movies to consumers; the popularity of theatre attendance and major motion picture releases; shifts in population and other demographics; the Company’s ability to renew expiring contracts at favorable rates, or to replace them with new contracts that are comparably favorable to the Company; the Company’s need for, and ability to obtain, additional funding for acquisitions and operations; risks and uncertainties relating to the Company significant indebtedness; fluctuations in operating costs; capital expenditure requirements; changes in interest rates; and changes in accounting principles, policies or guidelines.  This list of factors that may affect future performance and the accuracy of forward-looking statements is illustrative but not exhaustive.  In addition, new risks and uncertainties may arise from time to time.  Accordingly, all forward-looking statements should be evaluated with an understanding of their inherent uncertainty.  Except as required by law, the Company assumes no obligation to publicly update or revise these forward-looking statements for any reason, or to update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available in the future.

 

About AMC Entertainment Inc.

 

Headquartered in Kansas City, Mo., AMC Entertainment Inc. is a leading theatrical exhibition and entertainment company. With a history of industry leadership and innovation dating back to 1920, the company today serves more than 235 million guests annually through interests in 309 theatres with 4,628 screens in five countries. www.amctheatres.com

 

# # #

 

3