FIRST AMENDMENT to STOCK PURCHASE AGREEMENT
EXECUTION COPY
Exhibit 10.2
FIRST AMENDMENT
to
This First Amendment (this “Amendment”) to that certain Stock Purchase Agreement (the
“Agreement”) dated as of August 7, 2006 by and among Century Theatres, Inc., a California
corporation (the “Company”), Century Theatres Holdings, LLC, a California limited liability
company (“CTH LLC”), Syufy Enterprises, LP, a California limited partnership
(“Shareholder”), Cinemark USA, Inc., a Texas corporation (“Purchaser”) and Cinemark
Holdings, Inc., a Delaware corporation (“Holdings”), is being entered into by and among the
parties to the Agreement as of this 4th day of October, 2006. Capitalized terms used but not
defined herein are defined in the Agreement.
The Company, Shareholder, CTH LLC, Purchaser and Holdings are parties to the Agreement.
The Company, Shareholder, CTH LLC, Purchaser and Holdings now wish to amend the Agreement
pursuant to Section 10.9 thereof.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
Section 1. Amendments.
(a) The definition of “Agreement Date Salary Schedule” set forth in Section 1.1 of the
Agreement is hereby amended and restated in its entirety to read as follows:
“Agreement Date Salary Schedule” shall mean a schedule of the base salaries in
effect as of the date hereof with respect to any Eligible Employee as of the date hereof as
set forth on Section 3.18(f) of the Company Disclosure Schedule.
(b) The definition of “Eligible Employee” set forth in Section 1.1 of the Agreement is
hereby amended and restated in its entirety to read as follows:
“Eligible Employee” shall mean any full time or permanent part-time employee of the
Company or any of its Subsidiaries who is (a) either located at the Company’s home office
in San Rafael, California or the Company’s office[s] in Canada or who is a booth and
maintenance technician or a vice president, and who is (b) eligible to receive a payment or
benefit under the Severance Plan to be approved and adopted by the Company pursuant to
Section 6.17(a); provided that no LTIP
Employee shall also be an Eligible Employee. All Eligible Employees are listed on the
Closing Date Salary Schedule.
1
(c) The definition of “Real Estate Broker” set forth in Section 1.1 of the Agreement
shall be amended to refer to Section 3.12(a)(xviii) of the Company Disclosure Schedule and to
delete any reference to Section 3.13(b) of the Company Disclosure Schedule. Except for the
foregoing change, the definition of “Real Estate Broker” shall not change.
(d) The Parties have agreed to certain amendments and modifications to the form of Severance
Plan that was attached to the Agreement as Exhibit I. Accordingly, the form of Severance
Plan which the Shareholder shall cause the Company to adopt prior to Closing is attached hereto as
the revised Exhibit I to the Agreement.
(e) Section 6.17(c) of the Agreement is hereby amended and restated in its entirety to read as
follows:
(c) At the Closing, Shareholder (and not CTH LLC, the Company or its Subsidiaries) shall
deposit in escrow an amount in cash equal to $2,722,928 (the “Severance Escrow Fund”), with
such institution acting as escrow agent as shall be acceptable to Shareholder and Purchaser and
which amount shall be held pursuant to the terms of this Agreement and an escrow agreement among
Shareholder, the Company, the escrow agent and Purchaser with respect to the Severance Escrow Fund.
(f) Section 6.17(d) of the Agreement is hereby amended and restated in its entirety to read as
follows:
(d) After the Closing and prior to the Severance Escrow Expiration Date, if any
Eligible Employee receives any payment under the Severance Plan adopted pursuant
to Section 6.17(a) during any calendar month, within fifteen (15) days
after the end of such calendar month, the Company shall deliver to the escrow
agent a statement signed by an officer of the Company or Purchaser stating (1)
that the Company has made a payment to an Eligible Employee pursuant to the
Severance Plan, (2) the severance payment amount for such Eligible Employee as set
forth on Exhibit P attached hereto1, (3) the aggregate amount
of any social security, medicare, unemployment or other payroll taxes payable by
the Company or its Subsidiaries with respect to the amount set forth in clause (2)
above, and (4) the aggregate amount paid or to be paid to such Eligible Employee
by the Company pursuant to the Severance Plan. Upon receipt of such statement,
the escrow agent shall deliver to the Company out of the Severance Escrow Fund, as
promptly as practicable, an amount equal to the sum of (i) the amount set forth in
clause (2) above plus (ii) the amount set forth in clause (3) above.
(g) Section 7.2(i) of the Agreement is hereby amended by adding the following sentence after
the first sentence of the foregoing section:
| 1 | This will be identical to Exhibit C attached to the Severance Plan. |
2
For the avoidance of doubt, the “Capital Lease Obligations” and “Accrued Interest on
Capital Lease Obligations” set forth in Schedule 3.24 of the Company Disclosure
Schedule shall not be deemed to be Indebtedness to be paid off at the Closing by Purchaser
pursuant to this Section 7.2(i), and the provision by the Company to Purchaser of
payoff letters with respect to the “Capital Lease Obligations” and “Accrued Interest on
Capital Lease Obligations” shall not be a condition to the Closing.
(h) Section 7.2(t) of the Agreement is hereby amended and restated in its entirety to read as
follows:
(t) CTH LLC Transactions. Prior to the Closing, (i) CTH LLC shall distribute all of
the Shares to Shareholder, (ii) after such distribution, CTH LLC shall dissolve and liquidate and
cease to exist, such that Shareholder shall, on the Closing Date and prior to the Closing, own all
of the Shares, and (iii) evidence of such transactions described in this Section 7.2(t)
shall be provided to Purchaser and Holdings.
(i) Schedule 7.2(g) of the Purchaser Disclosure Schedule to the Agreement is hereby amended
and restated in its entirety to read as follows:
All services provided by the Company or its Subsidiaries to Syufy Enterprises, LP or its
Affiliates (other than the Company and its Subsidiaries) other than those that are the
subject of the Transition Services Agreement attached to the Purchase Agreement as Exhibit
F, including, without limitation, that certain Administration Agreement, dated as of April
31, 2000 between Syufy Enterprises and Century Theatres, Inc.
The Real Property Lease as amended to the date hereof with respect to the following
property: Xxxxxxx 7
Section 2. No Other Changes. Except as expressly modified hereby, all terms,
conditions and provisions of the Agreement shall continue in full force and effect. This Amendment
shall be deemed to be and construed as part of the Agreement, and the Agreement shall be deemed to
be and be construed as part of this Amendment; provided, however, that in the event of any
inconsistency or conflict between the Agreement and this Amendment, the terms, conditions and
provisions of this Amendment shall govern and control.
* * * *
3
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be executed on its behalf
by it or by an officer or representative thereunto duly authorized, all as of the date first
written above.
| CENTURY THEATRES, INC. | CINEMARK USA, INC. | |||||||
By:
|
/s/ Xxx Xxxxx | By: | /s/ Xxxxxxx Xxxxxxxx | |||||
| Name: Xxx Xxxxx | Name: Xxxxxxx Xxxxxxxx | |||||||
| Title: | Title: Senior Vice President — General Counsel | |||||||
| SYUFY ENTERPRISES, LP | CINEMARK HOLDINGS, INC. | |||||||
By:
|
/s/ Xxx Xxxxx | By: | /s/ Xxxxxxx Xxxxxxxx | |||||
| Name: Xxx Xxxxx | Name: Xxxxxxx Xxxxxxxx | |||||||
| Title: | Title: Senior Vice President — General Counsel | |||||||
| CENTURY THEATRES HOLDINGS, LLC | ||||||||
By: |
/s/ Xxx Xxxxx | |||||||
| Name: Xxx Xxxxx | ||||||||
| Title: | ||||||||
4
