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EXHIBIT 10.20
AMENDED AND RESTATED AGREEMENT
This Agreement is made as of the 1st day of November, 1997, by and
between GC COMPANIES, INC. (the "Company") and XXXX X. DEL XXXXX (the
"Executive").
W I T N E S S E T H :
WHEREAS, the Executive is employed by the Company as President and Chief
Executive Officer of its wholly owned subsidiary, General Cinema Theatres, Inc.
("General Cinema"); and
WHEREAS, the Executive and the Company are parties to an Agreement dated
as of December 14, 1993, pursuant to which the Executive is continuing his
employment with the Company (the "Original Agreement"); and
WHEREAS, the Company wishes to provide for the continued employment of
the Executive and to provide for him an incentive to stay with the Company; and
WHEREAS, the parties have agreed to renegotiate the terms of the
Executive's employment and to set forth those terms in this Agreement, which
amends and restates in its entirety the original Agreement between the parties
with respect thereto.
NOW, THEREFORE, in consideration of the parties, and for other good and
lawful consideration, the receipt of which is hereby acknowledged, the parties
agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive, as Chairman
of General Cinema Theatres, Inc. through October 31, 1998, and in
such capacity as the President of the Company may determine
throughout the remainder of the term hereof. The Executive shall
report directly to the Company's President, shall participate in
the management of the Company's affairs as directed by the
President of the Company, it being intended that the Executive
participate in or manage General Cinema's international
activities, specialty film ventures, the Corporate Real Estate
Committee, and shall have such other and additional duties of an
executive nature as may be specified from time to time by the
President of the Company.
2. TERM. The Executive's employment under this Agreement shall
commence on November 1, 1997, and shall continue until October 31,
2002. This Agreement may otherwise be terminated only in
accordance with the provisions of Section 7 of this Agreement.
3. DUTIES. The Executive shall devote all of his work time to the
business of the Company (other than incidental non-competing
activities which do not materially detract from the Executive's
ability to perform his duties hereunder, as approved by the
President of the Company), and shall
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serve the Company and act in all respects as a "good employee" and
representative of the affairs of the Company. The Executive agrees
to use his best efforts to promote and advance the interests of
the Company, and, in particular, to increase the profits thereof.
4. COMPENSATION.
a. For services rendered under this Agreement, the Executive's
salary shall be $330,000 per annum through October 31,
1998. From November 1, 1998 through the end of the term
hereof, the Executive's salary shall be $300 per hour based
upon such hours as may be accounted for and documented to
the reasonable satisfaction of the Company's President, but
in no event will the Executive's salary be less than
$237,500 per year from November 1, 1998 through the end of
the term hereof. All salary shall be payable in equal
installments paid not less than twice monthly during the
term of this Agreement, with any additional amounts owed
based upon work in excess of 792 hours per year to be paid
at the end of the fiscal quarter in which such excess hours
were incurred.
b. The Executive shall not be eligible for any further
benefits under General Cinema's EVA Incentive Plan (the
"EVA Plan"). At the time of payment of the fiscal year 1998
EVA Plan bonus, the Executive shall receive all outstanding
bonus awards due under the EVA Plan relating to fiscal year
1997 that would otherwise be deferred thereunder.
c. During the term hereof, the Executive may be eligible for
an annual bonus for extraordinary performance, the
determination of which shall be made in the sole discretion
of the President of the Company.
5. ADDITIONAL ARRANGEMENTS; FRINGE BENEFITS. In addition to the
salary and bonus referred to under Section 4 hereof, the Company
will provide the following for and on behalf of the Executive:
a. All stock options previously granted to the Executive by
the Company shall vest in full as of October 31, 1998. The
Executive shall be eligible for stock option grants for
fiscal years 1997 and 1998 as determined by the
Compensation Committee of the Board of Directors of the
Company, and shall not be eligible for such awards
thereafter;
b. Upon the Executive's retirement, the Executive shall be
entitled to retirement benefits under the Company's
Retirement Plan in a lump sum or monthly benefit amounts,
at the Executive's option based upon the Executive's age at
retirement in accordance with the provisions of such plan;
c. In lieu of benefits that the Executive is now entitled to
or would become entitled to through the term hereof under
the Company's Supplemental Executive Retirement Plan, on
October 31, 1998 and on each October 31 thereafter through
October 31, 2002, the Company shall pay $181,500 per year
(less any applicable withholding taxes that the
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Company is required by law to withhold) to an irrevocable
trust created by the Executive for the benefit of such
beneficiaries as he shall determine;
d. Up to age 65, the Executive will receive family health
insurance coverage pursuant to the Company's Executive
Medical insurance plan or plans maintained by the Company.
Through October 31, 2002, the Executive shall receive Group
Term Life Insurance coverage in accordance with the
Company's basic plan (which currently provides a death
benefit equal to one and one-half times base salary).
Throughout the term hereof, the Executive may participate
in the Company's Key Executive Deferred Compensation Plan
in accordance with its terms, and the Executive shall be
entitled to all other employee fringe benefits afforded to
a Vice President of the Company.
6. EXPENSE REIMBURSEMENT. The Executive shall be reimbursed by the
Company for all reasonable travel and other expenses actually and
properly incurred by him with respect to his duties hereunder and
in accordance with any policies adopted by the Company's Board of
Directors, and for all such expense he shall furnish receipts,
statements or vouchers to the President of the Company, as
required by Company policy.
7. TERMINATION.
a. The Executive's employment shall be terminated by the
Company prior to the expiration of the term of this
Agreement, only upon the occurrence of one of the following
events:
i. the death of the Executive;
ii. the Total Disability of the Executive; or
iii. for Cause.
b. The Executive's employment shall be terminated by the
Executive prior to the expiration of the term of this
Agreement, only upon the occurrence of one of the following
events:
i. the voluntary retirement, resignation or termination
of this Agreement by the Executive, upon thirty (30)
days written notice to the Company; or
ii. Upon a Change in Control of the Company.
c. The following definitions shall apply to this Agreement:
i. "Total Disability" means that as of the date of
termination, the Executive was unable to perform his
duties in the normal and regular manner for either
(a) 80% or more of the normal working days during
the six full consecutive calendar
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months most recently ended; or (b) 50% or more of
the normal working days during the 12 full
consecutive calendar months most recently ended.
ii. "Change in Control" means the occurrence of any of
the events described in (1) or (2) below, if, as a
result thereof, persons who, as of the effective
date hereof, constituted the Company's Board of
Directors (the "Incumbent Board") cease for any
reason, including without limitation as a result of
a tender offer, proxy contest, merger or similar
transaction, to constitute at least a majority of
the Board of Directors, provided that any persons
becoming a director of the Company subsequent to the
Effective Date whose nomination or election was
approved by at least a majority of the directors
then comprising the Incumbent Board shall, for
purposes of this Agreement, be considered a member
of the Incumbent Board:
(1) Any "person" as such term is used in Sections
13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended, (the "Act")) becomes
a "beneficial owner" (as such terms is
defined in Rule 13d-3 promulgated under the
Act) (other than the Xxxxx Family Group (as
described in the most recent proxy statement
filed by the Company with the Securities and
Exchange Commission)) directly or indirectly,
of securities of the Company representing
more than the greater of (a) twenty percent
(20%) of the combined voting power of the
Company's then outstanding securities; or (b)
the percentage of the combined voting power
of the Company's then outstanding securities
as to which the Xxxxx Family Group is the
beneficial owner; or
(2) The Xxxxx Family Group becomes the beneficial
owner of less than twenty percent (20%) of
the combined voting power of the Company's
then outstanding securities.
8. EFFECT OF TERMINATION.
a. i. In the event the Executive's employment is
terminated prior to the end of the term by the
Company due to Total Disability or by the Executive
due to a Change in Control, the Executive shall
receive a lump sum payment equal to all unpaid
amounts payable hereunder for salary and bonus under
paragraph 4 and continuation of all benefits
provided under paragraph 5 in accordance with the
terms thereof.
ii. In the event the Executive's employment is
terminated prior to the end of the term by the
Executive under paragraph 7.b.i., or in the event
that the Executive's employment is terminated by the
Company for Cause, the Executive shall receive no
continuing salary or bonus under paragraph 4, and
all amounts payable and benefits hereunder shall
terminate, except for pension benefits provided
under
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paragraph 5.b. and payments to the trust described
under paragraph 5.c. hereof, which shall continue in
accordance with the terms thereof.
iii. In the event the Executive' employment is terminated
prior to the end of the term due to death, the
Executive shall receive no continuing salary or
bonus under paragraph 4, and all amounts payable and
benefits hereunder shall terminate, except for
pension benefits provided under paragraph 5.b.,
payments to the trust described under paragraph 5.c.
hereof, and family health insurance coverage
described in the first sentence of paragraph 5.d.
hereof, which shall continue in accordance with the
terms thereof.
b. In the event the parties dispute the Executive's
entitlement to the compensation provided under this
Section, the parties agree that the issue shall be
submitted to binding arbitration under the auspices of the
American Arbitration Association in Boston, Massachusetts.
Costs of the arbitration shall be borne by the
non-prevailing party. The parties agree to be bound by the
outcome of such arbitration, and that the final award of
arbitration shall be final, binding and nonappealable.
9. NON-COMPETITION; NON-SOLICITATION.
a. During the course of the Executive's employment with the
Company, and solely by reason of his employment
relationship with the Company, he will have access to and
have and will continue to gain knowledge of financial and
statistical information, business plans and programs,
processes, pricing, costs, expansion plans, methods,
techniques, marketing and other data relating to customers
and suppliers, designs, know-how and business practices of
the Company, its subsidiaries and affiliates, and other
information which is not generally available to the public
(collectively, "Confidential Information"). The Executive
acknowledges that the Confidential Information has been
developed by the Company at considerable expense. The
Executive realizes that the unauthorized disclosure or
misuse of Confidential Information could cause irreparable
damage to the Company, including the loss of valuable
customers. Therefore, the Executive agrees that except in
the furtherance of the performance of his duties as an
employee of the Company, the Executive will not at any time
disclose or communicate to any third party other than
employees of the Company authorized to use such
information, or use to the detriment of the Company, or for
his personal benefit or the benefit of any third party
outside of the scope of his employment with the Company,
any Confidential Information. The Executive further agrees
that he will not remove from the offices of the Company or
retain without the written consent of the Company any
document, record or any other materials constituting or
containing Confidential Information, except as may be
reasonably necessary for the performance of his duties as
an employee of the Company. Upon the voluntary or
involuntary termination of his employment with the Company,
he shall return to the Company all documents, records and
other materials constituting or containing Confidential
Information which he has in his possession.
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b. Throughout the term hereof and during the eighteen (18)
month period immediately following termination of the
Executive's employment with the Company, he shall not
directly solicit any employee of the Company.
c. (i) Throughout the term hereof, and through October 31,
2002 in the case of termination of the Executive's
employment with the Company prior to the end of the term
for Cause or due to the voluntary termination of this
Agreement by Executive, the Executive shall not, directly
or indirectly, within the United States and any country in
which the Company or any of its subsidiaries or affiliates
then engages directly or indirectly in such a business,
engage in or own, manage, operate, join, control, be
employed by, or participate in the management, operation or
control of, or be connected in any manner with any motion
picture exhibition business
(ii)(A)For eighteen (18) months after the termination
hereof unless subparagraph (i) applies due to
termination for cause or the voluntary termination
by the Executive, the Executive shall not, directly
or indirectly within the United States engage in or
own, manage, operate, join, control, be employed by,
or participate in the management, operation or
control of, or be connected in any manner with any
motion picture exhibition business.
(B) For eighteen (18) months after the termination
hereof unless subparagraph (i) applies due to
termination for cause or the voluntary termination
by the Executive, the Executive shall not directly
or indirectly within any market area outside of the
United States in which the Company or any of its
subsidiaries or affiliates engages directly or
indirectly in such business, engage in or own,
manage, operate, join, control, be employed by, or
participate in the management, operation or control
of, or be connected in any manner with any motion
picture exhibition business. For purposes of this
subparagraph, "market area" means any city outside
the United States in which the Company or any of its
subsidiaries or affiliates engages in the motion
picture exhibition business, plus a ten (10) mile
radius from any theatre location of the Company or
any of its subsidiaries or affiliates located
outside of the United States at which operations
have commenced, or which commence within eighteen
months from such termination.
(iii) The foregoing provisions shall not prohibit the
Executive from owning a minority interest of not
more than one percent (1%), including stock options,
in such a corporation whose stock is publicly
traded.
d. The Executive acknowledges that in the event of a breach of
the foregoing provisions by the Executive, the Company is
not able to be adequately compensated at law and that the
provisions hereof shall be specifically enforceable by
court order in addition to all other
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rights and remedies at law or in equity available to the
Company for the breach or threatened breach hereof.
e. The Executive acknowledges that he has carefully considered
the foregoing provisions and having done so, agrees that
the restrictions set forth hereinabove, including, but not
limited to the time restrictions and the restrictions on
his activities, are reasonably required for the protection
of the interests of the Company. Notwithstanding the
foregoing, if any of the foregoing provisions would be
enforceable except for the fact that it is too broad to
protect the reasonable interests of the Company, such
provisions shall be enforceable only to the extent deemed
reasonable by a court of competent jurisdiction to protect
the interests of the Company. In the event any of the
foregoing provisions shall be modified or reformed, or held
to be invalid or unenforceable by a court of competent
jurisdiction, the remaining provisions hereof shall
nevertheless continue to be valid and enforceable as though
the invalid or unenforceable parts had not been included
therein.
10. NOTICES. All notices by any party to any other party shall be in
writing and shall be deemed to be properly given and delivered if
served personally or sent by registered mail addressed to the
parties at such place or to such other party or person as may from
time to time be designated by written notice.
11. MISCELLANEOUS. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts. This Agreement shall be binding
upon and shall inure to the benefit of the legal representative,
successors, heirs and assigns of the parties hereto (provided,
however, that the Executive shall not have the right to assign
this Agreement in view of its personal nature). All headings and
subtitles contained in this Agreement are for the convenience of
reference only and are not of substantive effect. This Agreement
constitutes the entire agreement among the parties with respect to
the subject matter of this Agreement and supersedes all prior
negotiations and understandings (or any part thereof), written or
oral, with respect to the subject matter of this Agreement,
including the Original Agreement. There are no oral agreements in
connection with this Agreement. Neither this Agreement nor any
provision of this Agreement may be waived, terminated, modified or
amended orally or by any course of conduct but only by an
agreement in writing duly executed by all of the parties. If any
article, section, portion, subsection or subportion of this
Agreement shall be determined to be unenforceable or invalid, then
such article, section, portion, subsection or subportion shall be
modified in the letter and spirit of this Agreement to the extent
permitted by applicable law so as to be rendered valid, and any
such determination shall not affect the remainder of this
Agreement, which shall be and shall remain binding and effective
as against all parties. The word "Agreement" as used in this
Agreement shall be deemed to include any and all renewals of this
Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
GC COMPANIES, INC.
By:
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Xxxxxx X. Xxxxx
President and Chief Operating Officer
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Xxxx X. Del Xxxxx
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