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EMPLOYMENT AGREEMENT

Employee Retention Agreement

EMPLOYMENT AGREEMENT | Document Parties: MARQUEE HOLDINGS INC. | AMC Entertainment Inc | Williams, Williams, Rattner & Plunkett, PC You are currently viewing:
This Employee Retention Agreement involves

MARQUEE HOLDINGS INC. | AMC Entertainment Inc | Williams, Williams, Rattner & Plunkett, PC

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Title: EMPLOYMENT AGREEMENT
Governing Law: Delaware     Date: 2/25/2009
Law Firm: O'Melveny Myers    

EMPLOYMENT AGREEMENT, Parties: marquee holdings inc. , amc entertainment inc , williams  williams  rattner & plunkett  pc
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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

 

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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,

 

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(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

 

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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

 

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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

 

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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.

 

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(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)    &nb


 
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