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.
Resignation . Employee 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
