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