THIS EMPLOYMENT
AGREEMENT (this “ Agreement ”) is made
and entered into as of December 15, 2008, by and between
Cinemark Holdings, Inc., a Delaware corporation (the “
Company ”), and John Lundin (“
Executive ”).
WHEREAS ,
Cinemark, Inc., a wholly owned subsidiary of the Company, and
Executive are parties to an Employment Agreement dated as of
March 12, 2004, as amended to the date hereof, relating to
Executive, which arrangement sets forth the terms and conditions of
Executive’s employment with Cinemark, Inc. (the “
Original Agreement ”); and
WHEREAS ,
the parties desire to enter into this Agreement to replace and
supersede the Original Agreement;
NOW ,
THEREFORE , in consideration of the mutual promises and
covenants set forth herein, the parties hereto agree as
follows:
1.1
Title and Duties . The Company hereby employs Executive as
Vice President of Film Licensing of the Company. Executive’s
duties, responsibilities and authority shall be consistent with
Executive’s position and titles and shall include serving in
a similar capacity with certain of the Company’s Subsidiaries
(as hereinafter defined) and such other duties, responsibilities
and authority as may be assigned to Executive by the Board of
Directors of the Company (the “ Board ”).
Executive shall report directly to the Chief Executive Officer of
the Company.
1.2
Services and Exclusivity of Services . The Company and
Executive recognize that the services to be rendered by Executive
are of such a nature as to be peculiarly rendered by Executive,
encompass the individual ability, managerial skills and business
experience of Executive and cannot be measured exclusively in terms
of hours or services rendered in any particular period. Executive
shall devote Executive’s full business time and shall use
Executive’s best efforts, energy and ability exclusively
toward advancing the business, affairs and interests of the Company
and its Subsidiaries, and matters related thereto.
1.3
Location of Office . The Company shall make available to
Executive an office and support services at the Company’s
headquarters in the Dallas/Plano, Texas area. Executive’s
main office shall be at such location.
1.4
Subsidiaries; Person . For purposes of this Agreement,
“ Subsidiary ” or “
Subsidiaries ” means, as to any Person, any
other Person (i) of which such Person or any other Subsidiary
of such Person is a general partner, (ii) of which such
Person, any one or more of its other Subsidiaries of such Person,
or such Person and any one or more of its other Subsidiaries,
directly or indirectly owns or controls securities or other equity
interests representing more than fifty percent (50%) of the
aggregate voting power, or (iii) of which such Person, any one
or more of its other Subsidiaries of such Person, or such Person
and any one or more its other Subsidiaries, possesses the right to
elect more than fifty percent (50%) of the board of directors or
Persons holding similar positions; and “ Person
” means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint-stock
company, trust, unincorporated organization, or other entity or
group (as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended).
2 Term .
The term of Executive’s employment under this Agreement (the
“ Term ”) shall commence on the Effective
Date (as defined in Section 18 ) and shall continue for
a period of three (3) years thereafter; provided, however,
that at the end of each year of the Term, the Term shall be
extended for an additional one-year period unless Executive’s
employment with the Company is terminated in accordance with
Section 5 . References in this Agreement to the
“balance of the Term” shall mean the period of time
remaining on the scheduled Term after giving effect to the most
recent extension of the Term occurring prior to any termination of
the Term.
3.1
Base Salary . During the Term, the Company will pay to
Executive a base salary at the rate of $291,200 per year, payable
in accordance with the Company’s practices in effect from
time to time (“ Base Salary ”). Amounts
payable shall be reduced by standard withholding and other
authorized deductions. Such Base Salary shall be reviewed during
the Term for increase (but not decrease) in the sole discretion of
the Board, or such individual, group or committee that the Board
may select as its delegate, not less frequently than annually
during the Term. In conducting any such review, the Board or such
delegate shall consider and take into account, among other things,
any change in Executive’s responsibilities, performance of
Executive, the compensation of other similarly situated executives
of comparable companies and other pertinent factors. Once
increased, Executive’s Base Salary shall not be decreased
except upon mutual agreement between the parties, and, as so
increased, shall constitute Base Salary hereunder.
3.2
Bonuses; Incentive, Savings and Retirement Plans; Welfare
Benefit Plans .
(a) Executive
shall be entitled to participate in all annual and long-term
bonuses and incentive, savings and retirement plans generally
available to other similarly situated executive employees of the
Company. Executive, and Executive’s family as the case may
be, shall be eligible to participate in and receive all benefits
under welfare benefit plans, practices, programs and policies
provided to other similarly situated executive employees of the
Company, including, without limitation, medical, prescription,
dental, disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and programs.
The Company reserves the right to modify, suspend or discontinue
any and all of its benefits referred to in this
Section 3.2 at any time without recourse by Executive
so long as such action is taken generally with respect to other
executives and does not single out Executive.
(b) In
addition to his Base Salary, for each fiscal year ending during the
Term, Executive will be entitled to participate in the Cinemark
Holdings, Inc. Performance Bonus Plan (the “ Annual
Bonus Plan ”), as such Annual Bonus Plan may be
amended from time to time, or pursuant to the terms of any
successor plan. If the performance targets specified by the
Compensation Committee of the Board are satisfied, Executive will
receive an annual incentive cash bonus (the “ Annual
Bonus ”) based upon the award opportunity parameters
and performance targets established by the Compensation Committee
of the Board pursuant to the terms of the Annual Bonus Plan. The
amount of the Annual Bonus award opportunity and the performance
targets that must be satisfied to receive such Annual Bonus award
will be established by the Compensation Committee, in its sole
discretion, each fiscal year pursuant to the terms of the Annual
Bonus Plan. All such Annual Bonus award payments will be payable as
specified pursuant to the terms of the Annual Bonus Plan and will
be reduced by standard withholding and other authorized
deductions.
(c)
Equity Awards . Executive will be eligible to participate in
and receive grants of equity incentive awards (“ Equity
Awards ”) under the Company’s Amended and
Restated 2006 Long Term Incentive Plan (the “ Equity
Incentive Plan ”), as such Equity Incentive Plan may
be amended from time to time, or pursuant to the terms of any
successor plan. Equity Awards to Executive may be granted at such
times and subject to such terms and conditions as the Equity
Incentive Plan administrator shall determine. Executive has
received prior grants of Stock Options which shall continue to be
subject to the terms of this Agreement provided herein. Upon the
consummation of a Sale of the Company, Executive’s Equity
Awards will accelerate and become fully vested (assuming Executive
is then, and has been continuously, employed by the Company or any
of its Subsidiaries). For purposes hereof, “ Sale of
the Company ” is defined and has the meaning
specified in the Equity Incentive Plan.
3.3
Fringe Benefits . Executive shall be entitled to receive
fringe benefits consistent with Executive’s duties and
position, and in accordance with the benefits provided to other
similarly situated executive employees of the Company. The Company
reserves the right to modify, suspend or discontinue any and all of
its fringe benefits referred to in this Section 3.3 at any
time without recourse by Executive so long as such action is taken
generally with respect to other similarly situated peer executives
and does not single out Executive.
3.4
Travel and Expenses . Executive shall be entitled to
reimbursement for expenses incurred in the furtherance of the
business of the Company in accordance with the Company’s
practices and procedures, as they may exist from time to time.
Executive may, in his discretion, elect to purchase, and be
reimbursed for, business class tickets on any international flights
which scheduled flight time exceeds five hours. Executive shall
keep complete and accurate records of all expenditures such that
Executive may substantiate and fully account for such expenses
according to the Company’s practices and
procedures.
3.5
Vacation . Executive shall be entitled to twenty
(20) days paid vacation and other absences from work in
accordance with the Company’s vacation and absence policy in
effect at the time of such vacations or absences.
3.6
Payment of Compensation and Benefits . Executive
acknowledges and agrees that all payments required to be paid to
Executive and benefits to be provided to Executive may be paid or
provided by the Company, its successor or any other Subsidiary of
the Company.
4 Confidential
Information; Non-Competition; Non-Solicitation .
4.1
General . Executive acknowledges that during his employment
and as a result of his relationship with the Company and its
affiliates, Executive has obtained and will obtain knowledge of,
and has been given and will be given access to, information,
including, but not limited to, information regarding the business,
operations, services, proposed services, business processes,
advertising, marketing and promotional plans and materials, price
lists, pricing policies, ticket sales, film licensing, purchasing,
real estate acquisition and leasing, other financial information
and other trade secrets, confidential information and proprietary
material of the Company and its affiliates or designated as being
confidential by the Company or its affiliates which are not
generally known to non-Company personnel, including information and
material originated, discovered or developed in whole or in part by
Executive (collectively referred to herein as “
Confidential Information ”). The term
“Confidential Information” does not include any
information which (i) at the time of disclosure is generally
available to the public (other than as a result of a disclosure by
Executive in breach of this Agreement), or (ii) was available
to Executive on a non-confidential basis from a source (other than
the Company or its Affiliates or their representatives) that is not
and was not prohibited from disclosing such information to
Executive by a contractual, legal or fiduciary obligation.
Executive agrees that during the Term and, to the fullest extent
permitted by law, thereafter, Executive will, in a fiduciary
capacity for the benefit of the Company and its affiliates, hold
all Confidential Information strictly in confidence and will not
directly or indirectly reveal, report, disclose, publish or
transfer any of such Confidential Information to any Person, or
utilize any of the Confidential Information for any purpose, except
in furtherance of Executive’s employment under this Agreement
and except to the extent that Executive may be required by law to
disclose any Confidential Information. Executive acknowledges that
the Company and its affiliates are providing Executive additional
Confidential Information that Executive was not given prior to
execution of this Agreement, as further consideration to Executive
for executing this Agreement, including the promises and covenants
made by Executive in this Section 4 .
4.2
Non-Competition . In further consideration of the
compensation to be paid to Executive hereunder, Executive
acknowledges that during the course of his employment with the
Company and its Subsidiaries, he has, and will, become familiar
with the trade secrets of the Company and its Subsidiaries and with
other Confidential Information concerning the Company and its
Subsidiaries and that his services have been and shall continue to
be of special, unique and extraordinary value to the Company and
its Subsidiaries. Therefore, Executive agrees that, during
Executive’s employment hereunder and for one year after the
date of termination of employment (the “ Non-compete
Period ”), he shall not directly or indirectly own
any interest in, manage, control, participate in, consult with,
render services for, be employed in an executive, managerial or
administrative capacity by, or in any manner engage in, any
Competing Business. For purposes hereof, “ Competing
Business ” means any business that owns, operates or
manages any movie theatre within a 25-mile radius (if such theatre
is outside of a Major DMA) or a 10-mile radius (if such theatre is
within a Major DMA) of any theatre (i) being operated by the
Company or any of its Subsidiaries during Executive’s
employment hereunder (but excluding any theatres which the Company
and its Subsidiaries have ceased to operate as of the date of the
termination of Executive’s employment hereunder), or
(ii) under consideration by the Company or any of its
Subsidiaries for opening as of the date of termination of
employment; “ Major DMA ” means a
Designated Market Area with a number of households in excess of
700,000; “ Designated Market Area ” means
each of those certain geographic market areas for the United
States
designated as
such by Nielsen Media Research, Inc. (“ Nielsen
”), as modified from time to time by Nielsen, whereby Nielsen
divides the United States into non-overlapping geography for
planning, buying and evaluating television audiences across various
markets and whereby a county in the United States is exclusively
assigned, on the basis of the television viewing habits of the
people residing in the county, to one and only one Designated
Market Area; and all theatres operated by the Company and its
Subsidiaries in Canada shall be treated as being outside of a Major
DMA. Nothing herein shall prohibit Executive from (i) being a
passive owner of not more than five percent (5%) of the outstanding
stock of any class of a corporation which is publicly traded, so
long as Executive has no active participation in the business of
such corporation, or (ii) during the one year period following
the termination of Executive’s employment, owning, operating
or investing in up to five (5) movie theatres, so long as each
such theatre is outside of a 25-mile radius of the theatres being
operated by the Company or any of its Subsidiaries or under
consideration by the Company or any of its Subsidiaries for
opening, in each case, as of the time of termination of
Executive’s employment. During the one-year period following
the termination of Executive’s employment for any reason,
Executive shall provide reasonable notice to the Company of his
plans for acquiring ownership in, commencing operations of, or
investing in, any movie theatre prior to any such event.
Notwithstanding the foregoing, Executive’s obligations under
this Section 4.2 shall terminate and become null and
void if Executive terminates his employment with Good
Reason.
4.3
Non-Solicitation . During the Term and for three
(3) years thereafter (the “ Non-solicitation
Period ”), Executive shall not directly or indirectly
through another Person (i) induce or attempt to induce any
managerial or executive-level employee of the Company or any
Subsidiary to leave the employ of the Company or such Subsidiary,
or in any way interfere with the relationship between the Company
or any Subsidiary and any employee thereof, (ii) without the
Company’s prior written consent, hire any person who was a
managerial or executive level employee of the Company or any
Subsidiary at any time during the Term or (iii) induce or
attempt to induce any customer, supplier, landlord, developer,
licensee, licensor, franchisee or other business relation of the
Company or any Subsidiary to cease doing business with the Company
or such Subsidiary, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation
and the Company or any Subsidiary or (iv) make any negative,
derogatory or disparaging statements or communications regarding
the Company or its Subsidiaries or any of their officers, directors
or affiliates. Notwithstanding the foregoing, after
Executive’s employment is terminated for any reason,
Executive may hire any former employee of the Company or any of its
Subsidiaries who were involuntarily terminated by the Company or
any of its Subsidiaries.
4.4
Proprietary Interest . All inventions, designs,
improvements, patents, copyrights and discoveries conceived by
Executive during Executive’s employment by the Company or its
affiliates that are useful in or directly or indirectly related to
the business of the Company and its affiliates or to any
experimental work carried on by the Company or its affiliates,
shall be the property of the Company and its affiliates. Executive
will promptly and fully disclose to the Company or its affiliates
all such inventions, designs, improvements, patents, copyrights and
discoveries (whether developed individually or with other persons)
and shall take all steps necessary and reasonably required to
assure the Company’s or such affiliate’s ownership
thereof and to assist the Company and its affiliates in protecting
or defending the Company’s or such affiliate’s
proprietary rights therein.
4.5
Return of Materials . Executive expressly acknowledges that
all data, books, records and other Confidential Information of the
Company and its affiliates obtained in connection with the
Company’s business is the exclusive property of the Company
or its affiliates and that upon the termination of
Executive’s employment by the Company or its affiliates,
Executive will immediately surrender and return to the Company or
its affiliates all such items and all other property belonging to
the Company or its affiliates then in the possession of Executive,
and Executive shall not make or retain any copies
thereof.
4.6
Property of the Company . Executive acknowledges that from
time to time in the course of providing services pursuant to this
Agreement, Executive shall have the opportunity to inspect and use
certain property, both tangible and intangible, of the Company and
its affiliates and Executive hereby agrees that such property shall
remain the exclusive property of the Company and its affiliates.
Executive shall have no right or proprietary interest in such
property, whether tangible or intangible, including, without
limitation, Executive’s customer and supplier lists, contract
forms, books of account, computer programs and similar
property.
4.7
Reasonable in Scope and Duration; Consideration . Executive
agrees and acknowledges that the restrictions contained in this
Section 4 are reasonable in scope and duration and are
necessary to protect the
business
interests and Confidential Information of the Company and its
affiliates after the Effective Date of this Agreement, and
Executive further agrees and acknowledges that he has reviewed the
provisions of this Agreement with his legal counsel. Executive
acknowledges and agrees that Executive will receive substantial,
valuable consideration from the Company for the covenants contained
in this Section 4 , including without limitation,
compensa
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