EMPLOYMENT AGREEMENT
EXHIBIT 10.5(s)
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of December 15, 2008,
by and between Cinemark Holdings, Inc., a Delaware corporation (the “Company”), and Xxxx Xxxxxx
(“Executive”).
WITNESSETH:
WHEREAS, Cinemark, Inc., a wholly owned subsidiary of the Company, and Executive are parties
to an Employment Agreement dated as of March 12, 2004, as amended to the date hereof, relating to
Executive, which arrangement sets forth the terms and conditions of Executive’s employment with
Cinemark, Inc. (the “Original Agreement”); and
WHEREAS, the parties desire to enter into this Agreement to replace and supersede the Original
Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the
parties hereto agree as follows:
1 Employment.
1.1 Title and Duties. The Company hereby employs Executive as Vice President of Film
Licensing of the Company. Executive’s duties, responsibilities and authority shall be consistent
with Executive’s position and titles and shall include serving in a similar capacity with certain
of the Company’s Subsidiaries (as hereinafter defined) and such other duties, responsibilities and
authority as may be assigned to Executive by the Board of Directors of the Company (the “Board”).
Executive shall report directly to the Chief Executive Officer of the Company.
1.2 Services and Exclusivity of Services. The Company and Executive recognize that
the services to be rendered by Executive are of such a nature as to be peculiarly rendered by
Executive, encompass the individual ability, managerial skills and business experience of Executive
and cannot be measured exclusively in terms of hours or services rendered in any particular period.
Executive shall devote Executive’s full business time and shall use Executive’s best efforts,
energy and ability exclusively toward advancing the business, affairs and interests of the Company
and its Subsidiaries, and matters related thereto.
1.3 Location of Office. The Company shall make available to Executive an office and
support services at the Company’s headquarters in the Dallas/Plano, Texas area. Executive’s main
office shall be at such location.
1.4 Subsidiaries; Person. For purposes of this Agreement, “Subsidiary” or
“Subsidiaries” means, as to any Person, any other Person (i) of which such Person or any other
Subsidiary of such Person is a general partner, (ii) of which such Person, any one or more of its
other Subsidiaries of such Person, or such Person and any one or more of its other Subsidiaries,
directly or indirectly owns or controls securities or other equity interests representing more than
fifty percent (50%) of the aggregate voting power, or (iii) of which such Person, any one or more
of its other Subsidiaries of such Person, or such Person and any one or more its other
Subsidiaries, possesses the right to elect more than fifty percent (50%) of the board of directors
or Persons holding similar positions; and “Person” means any individual, corporation, partnership,
limited liability company, firm, joint venture, association, joint-stock company, trust,
unincorporated organization, or other entity or group (as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended).
2 Term. The term of Executive’s employment under this Agreement (the “Term”) shall
commence on the Effective Date (as defined in Section 18) and shall continue for a period
of three (3) years thereafter; provided, however, that at the end of each year of the Term, the
Term shall be extended for an additional one-year period unless Executive’s employment with the
Company is terminated in accordance with Section 5. References in this Agreement to the
“balance of the Term” shall mean the period of time remaining on the scheduled Term after giving
effect to the most recent extension of the Term occurring prior to any termination of the Term.
3 Compensation.
3.1 Base Salary. During the Term, the Company will pay to Executive a base salary at
the rate of $291,200 per year, payable in accordance with the Company’s practices in effect from
time to time (“Base Salary”). Amounts payable shall be reduced by standard withholding and other
authorized deductions. Such Base Salary shall be reviewed during the Term for increase (but not
decrease) in the sole discretion of the Board, or such individual, group or committee that the
Board may select as its delegate, not less frequently than annually during the Term. In conducting
any such review, the Board or such delegate shall consider and take into account, among other
things, any change in Executive’s responsibilities, performance of Executive, the compensation of
other similarly situated executives of comparable companies and other pertinent factors. Once
increased, Executive’s Base Salary shall not be decreased except upon mutual agreement between the
parties, and, as so increased, shall constitute Base Salary hereunder.
3.2 Bonuses; Incentive, Savings and Retirement Plans; Welfare Benefit Plans.
(a) Executive shall be entitled to participate in all annual and long-term bonuses and
incentive, savings and retirement plans generally available to other similarly situated executive
employees of the Company. Executive, and Executive’s family as the case may be, shall be eligible
to participate in and receive all benefits under welfare benefit plans, practices, programs and
policies provided to other similarly situated executive employees of the Company, including,
without limitation, medical, prescription, dental, disability, salary continuance, employee life,
group life, accidental death and travel accident insurance plans and programs. The Company
reserves the right to modify, suspend or discontinue any and all of its benefits referred to in
this Section 3.2 at any time without recourse by Executive so long as such action is taken
generally with respect to other executives and does not single out Executive.
(b) In addition to his Base Salary, for each fiscal year ending during the Term, Executive
will be entitled to participate in the Cinemark Holdings, Inc. Performance Bonus Plan (the “Annual
Bonus Plan”), as such Annual Bonus Plan may be amended from time to time, or pursuant to the terms
of any successor plan. If the performance targets specified by the Compensation Committee of the
Board are satisfied, Executive will receive an annual incentive cash bonus (the “Annual Bonus”)
based upon the award opportunity parameters and performance targets established by the Compensation
Committee of the Board pursuant to the terms of the Annual Bonus Plan. The amount of the Annual
Bonus award opportunity and the performance targets that must be satisfied to receive such Annual
Bonus award will be established by the Compensation Committee, in its sole discretion, each fiscal
year pursuant to the terms of the Annual Bonus Plan. All such Annual Bonus award payments will be
payable as specified pursuant to the terms of the Annual Bonus Plan and will be reduced by standard
withholding and other authorized deductions.
(c) Equity Awards. Executive will be eligible to participate in and receive grants of
equity incentive awards (“Equity Awards”) under the Company’s Amended and Restated 2006 Long Term
Incentive Plan (the “Equity Incentive Plan”), as such Equity Incentive Plan may be amended from
time to time, or pursuant to the terms of any successor plan. Equity Awards to Executive may be
granted at such times and subject to such terms and conditions as the Equity Incentive Plan
administrator shall determine. Executive has received prior grants of Stock Options which shall
continue to be subject to the terms of this Agreement provided herein. Upon the consummation of a
Sale of the Company, Executive’s Equity Awards will accelerate and become fully vested (assuming
Executive is then, and has been continuously, employed by the Company or any of its Subsidiaries).
For purposes hereof, “Sale of the Company” is defined and has the meaning specified in the Equity
Incentive Plan.
3.3 Fringe Benefits. Executive shall be entitled to receive fringe benefits
consistent with Executive’s duties and position, and in accordance with the benefits provided to
other similarly situated executive employees of the Company. The Company reserves the right to
modify, suspend or discontinue any and all of its fringe benefits referred to in this Section
3.3 at any time without recourse by Executive so long as such action is taken generally with
respect to other similarly situated peer executives and does not single out Executive.
3.4 Travel and Expenses. Executive shall be entitled to reimbursement for expenses
incurred in the furtherance of the business of the Company in accordance with the Company’s
practices and procedures, as they may exist from time to time. Executive may, in his discretion,
elect to purchase, and be reimbursed for, business class tickets on any international flights which
scheduled flight time exceeds five hours. Executive shall keep complete and accurate records of
all expenditures such that Executive may substantiate and fully account for such expenses according
to the Company’s practices and procedures.
3.5 Vacation. Executive shall be entitled to twenty (20) days paid vacation and other
absences from work in accordance with the Company’s vacation and absence policy in effect at the
time of such vacations or absences.
3.6 Payment of Compensation and Benefits. Executive acknowledges and agrees that all
payments required to be paid to Executive and benefits to be provided to Executive may be paid or
provided by the Company, its successor or any other Subsidiary of the Company.
4 Confidential Information; Non-Competition; Non-Solicitation.
4.1 General. Executive acknowledges that during his employment and as a result of his
relationship with the Company and its affiliates, Executive has obtained and will obtain knowledge
of, and has been given and will be given access to, information, including, but not limited to,
information regarding the business, operations, services, proposed services, business processes,
advertising, marketing and promotional plans and materials, price lists, pricing policies, ticket
sales, film licensing, purchasing, real estate acquisition and leasing, other financial information
and other trade secrets, confidential information and proprietary material of the Company and its
affiliates or designated as being confidential by the Company or its affiliates which are not
generally known to non-Company personnel, including information and material originated, discovered
or developed in whole or in part by Executive (collectively referred to herein as “Confidential
Information”). The term “Confidential Information” does not include any information which (i) at
the time of disclosure is generally available to the public (other than as a result of a disclosure
by Executive in breach of this Agreement), or (ii) was available to Executive on a non-confidential
basis from a source (other than the Company or its Affiliates or their representatives) that is not
and was not prohibited from disclosing such information to Executive by a contractual, legal or
fiduciary obligation. Executive agrees that during the Term and, to the fullest extent permitted
by law, thereafter, Executive will, in a fiduciary capacity for the benefit of the Company and its
affiliates, hold all Confidential Information strictly in confidence and will not directly or
indirectly reveal, report, disclose, publish or transfer any of such Confidential Information to
any Person, or utilize any of the Confidential Information for any purpose, except in furtherance
of Executive’s employment under this Agreement and except to the extent that Executive may be
required by law to disclose any Confidential Information. Executive acknowledges that the Company
and its affiliates are providing Executive additional Confidential Information that Executive was
not given prior to execution of this Agreement, as further consideration to Executive for executing
this Agreement, including the promises and covenants made by Executive in this Section 4.
4.2 Non-Competition. In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that during the course of his employment with the
Company and its Subsidiaries, he has, and will, become familiar with the trade secrets of the
Company and its Subsidiaries and with other Confidential Information concerning the Company and its
Subsidiaries and that his services have been and shall continue to be of special, unique and
extraordinary value to the Company and its Subsidiaries. Therefore, Executive agrees that, during
Executive’s employment hereunder and for one year after the date of termination of employment (the
“Non-compete Period”), he shall not directly or indirectly own any interest in, manage, control,
participate in, consult with, render services for, be employed in an executive, managerial or
administrative capacity by, or in any manner engage in, any Competing Business. For purposes
hereof, “Competing Business” means any business that owns, operates or manages any movie theatre
within a 25-mile radius (if such theatre is outside of a Major DMA) or a 10-mile radius (if such
theatre is within a Major DMA) of any theatre (i) being operated by the Company or any of its
Subsidiaries during Executive’s employment hereunder (but excluding any theatres which the Company
and its Subsidiaries have ceased to operate as of the date of the termination of Executive’s
employment hereunder), or (ii) under consideration by the Company or any of its Subsidiaries for
opening as of the date of termination of employment; “Major DMA” means a Designated Market Area
with a number of households in excess of 700,000; “Designated Market Area” means each of those
certain geographic market areas for the United States
designated as such by Xxxxxxx Media Research, Inc. (“Xxxxxxx”), as modified from time to time
by Xxxxxxx, whereby Xxxxxxx divides the United States into non-overlapping geography for planning,
buying and evaluating television audiences across various markets and whereby a county in the
United States is exclusively assigned, on the basis of the television viewing habits of the people
residing in the county, to one and only one Designated Market Area; and all theatres operated by
the Company and its Subsidiaries in Canada shall be treated as being outside of a Major DMA.
Nothing herein shall prohibit Executive from (i) being a passive owner of not more than five
percent (5%) of the outstanding stock of any class of a corporation which is publicly traded, so
long as Executive has no active participation in the business of such corporation, or (ii) during
the one year period following the termination of Executive’s employment, owning, operating or
investing in up to five (5) movie theatres, so long as each such theatre is outside of a 25-mile
radius of the theatres being operated by the Company or any of its Subsidiaries or under
consideration by the Company or any of its Subsidiaries for opening, in each case, as of the time
of termination of Executive’s employment. During the one-year period following the termination of
Executive’s employment for any reason, Executive shall provide reasonable notice to the Company of
his plans for acquiring ownership in, commencing operations of, or investing in, any movie theatre
prior to any such event. Notwithstanding the foregoing, Executive’s obligations under this
Section 4.2 shall terminate and become null and void if Executive terminates his employment
with Good Reason.
4.3 Non-Solicitation. During the Term and for three (3) years thereafter (the
“Non-solicitation Period”), Executive shall not directly or indirectly through another Person (i)
induce or attempt to induce any managerial or executive-level employee of the Company or any
Subsidiary to leave the employ of the Company or such Subsidiary, or in any way interfere with the
relationship between the Company or any Subsidiary and any employee thereof, (ii) without the
Company’s prior written consent, hire any person who was a managerial or executive level employee
of the Company or any Subsidiary at any time during the Term or (iii) induce or attempt to induce
any customer, supplier, landlord, developer, licensee, licensor, franchisee or other business
relation of the Company or any Subsidiary to cease doing business with the Company or such
Subsidiary, or in any way interfere with the relationship between any such customer, supplier,
licensee or business relation and the Company or any Subsidiary or (iv) make any negative,
derogatory or disparaging statements or communications regarding the Company or its Subsidiaries or
any of their officers, directors or affiliates. Notwithstanding the foregoing, after Executive’s
employment is terminated for any reason, Executive may hire any former employee of the Company or
any of its Subsidiaries who were involuntarily terminated by the Company or any of its
Subsidiaries.
4.4 Proprietary Interest. All inventions, designs, improvements, patents, copyrights
and discoveries conceived by Executive during Executive’s employment by the Company or its
affiliates that are useful in or directly or indirectly related to the business of the Company and
its affiliates or to any experimental work carried on by the Company or its affiliates, shall be
the property of the Company and its affiliates. Executive will promptly and fully disclose to the
Company or its affiliates all such inventions, designs, improvements, patents, copyrights and
discoveries (whether developed individually or with other persons) and shall take all steps
necessary and reasonably required to assure the Company’s or such affiliate’s ownership thereof and
to assist the Company and its affiliates in protecting or defending the Company’s or such
affiliate’s proprietary rights therein.
4.5 Return of Materials. Executive expressly acknowledges that all data, books,
records and other Confidential Information of the Company and its affiliates obtained in connection
with the Company’s business is the exclusive property of the Company or its affiliates and that
upon the termination of Executive’s employment by the Company or its affiliates, Executive will
immediately surrender and return to the Company or its affiliates all such items and all other
property belonging to the Company or its affiliates then in the possession of Executive, and
Executive shall not make or retain any copies thereof.
4.6 Property of the Company. Executive acknowledges that from time to time in the
course of providing services pursuant to this Agreement, Executive shall have the opportunity to
inspect and use certain property, both tangible and intangible, of the Company and its affiliates
and Executive hereby agrees that such property shall remain the exclusive property of the Company
and its affiliates. Executive shall have no right or proprietary interest in such property,
whether tangible or intangible, including, without limitation, Executive’s customer and supplier
lists, contract forms, books of account, computer programs and similar property.
4.7 Reasonable in Scope and Duration; Consideration. Executive agrees and
acknowledges that the restrictions contained in this Section 4 are reasonable in scope and
duration and are necessary to protect the
business interests and Confidential Information of the Company and its affiliates after the
Effective Date of this Agreement, and Executive further agrees and acknowledges that he has
reviewed the provisions of this Agreement with his legal counsel. Executive acknowledges and
agrees that Executive will receive substantial, valuable consideration from the Company for the
covenants contained in this Section 4, including without limitation, compensation and other
benefits.
5 Termination.
5.1 Termination Prior to Expiration of Term. Notwithstanding anything to the contrary
contained in Section 2, Executive’s employment may be terminated prior to the expiration of
the Term only as provided in this Section 5.
5.2 Death or Disability.
(a) The Company may terminate Executive’s employment hereunder due to death or Disability (as
defined below). If Executive’s employment hereunder is terminated as a result of death or
Disability, Executive (or Executive’s estate or personal representative in the event of death)
shall be entitled to receive (i) all Base Salary due to Executive through the date of termination;
(ii) the actual Annual Bonus, if any, that Executive would have received in respect of the fiscal
year of the Company in which Executive’s termination of employment occurs, prorated by a fraction,
the numerator of which is the number of days in such fiscal year prior to the date of termination
and the denominator of which is 365 days, payable at the same time as any Annual Bonus payments are
made to other similarly situated active executives pursuant to the terms of the Annual Bonus Plan
and subject to satisfaction of the performance targets for such fiscal year; (iii) any previously
vested Equity Awards and benefits, such as retirement benefits, in accordance with the terms of the
plan or agreement pursuant to which such Equity Awards or benefits were granted to Executive (items
(i) through (iii) above collectively referred to as “Accrued Employment Entitlements”); (iv) a lump
sum payment equal to twelve (12) months of Executive’s full Base Salary, which shall be payable as
soon as practicable following the date of termination but not later than March 15 of the first
calendar year following the year of such termination; provided, that in the case of Disability such
payment shall be offset by the amount of Base Salary paid by the Company to Executive or
Executive’s personal representative from the date on which Executive was first unable substantially
to perform Executive’s duties through the date of such termination, and (v) any benefits payable to
Executive or Executive’s beneficiaries, as applicable, in accordance with the terms of the
applicable benefit plan. At the Company’s expense, Executive and/or Executive’s dependents shall
be entitled to continue to participate in the Company’s welfare benefit plans and programs on the
same terms as similarly situated actively-employed executives for a period of twelve months from
the date of such termination. Executive and/or Executive’s dependents shall thereafter be entitled
to any continuation of such benefits provided under such benefit plans or by applicable law.
Following the death or Disability of Executive, Executive’s participation under any Equity Award or
other incentive compensation plan (other than Annual Bonuses included in the definition of Accrued
Employment Entitlements) shall be governed by the terms of such plans.
(b) “Disability” shall mean a physical or mental impairment that (i) renders Executive unable
to perform the essential functions of Executive’s positions, even with reasonable accommodation
that does not impose an undue hardship on the Company or its Subsidiaries; (ii) has existed for at
least sixty (60) consecutive days; and (iii) in the opinion of a physician mutually agreed upon by
the Company and Executive (which agreement shall not be unreasonably withheld) will last for a
duration of at least one hundred eighty (180) consecutive days. Executive’s Disability shall be
determined by the Company, in good faith, based upon information supplied by Executive and the
physician mutually agreed upon by the Company and Executive; provided, however, that such
physician’s opinion of Executive’s Disability as defined in this Section 5.2(b) will be binding and
conclusive on the parties and for purposes of this Section 5.2, Executive’s date of termination
will be deemed the date of delivery of such opinion to the Company. Executive agrees to submit to
physical exams and diagnostic tests reasonably recommended by such physician.
5.3 Termination by the Company for Cause or by Executive because of a Voluntary
Termination.
(a) Executive’s employment hereunder may be terminated by the Company for Cause (as
hereinafter defined) or by Executive under a Voluntary Termination (as hereinafter defined). If
Executive’s employment hereunder is terminated under this Section 5.3, Executive shall
be entitled to receive all Base Salary due to Executive through the date of termination.
Furthermore, all previously vested rights of Executive under an Equity Award or similar incentive
compensation plan or program shall be treated in accordance with the terms of such plan or program.
Except as specifically set forth in this Section 5.3, the Company shall have no further
obligations to Executive following a termination for Cause, or a Voluntary Termination.
(b) “Cause” shall mean (i) subject to clause (ii) below, a felony or a violation by Executive
of federal securities laws which results in a conviction, a guilty plea or a plea of nolo
contendere, (ii) the commission of fraud, embezzlement or theft by Executive in connection with
Executive’s employment hereunder; (iii) engaging in conduct involving moral turpitude that causes
the Company and its affiliates substantial public disrepute or substantial economic harm; (iv) a
material breach of this Agreement by Executive and/or Executive’s gross neglect of Executive’s
duties hereunder which is not cured to the Board’s reasonable satisfaction within fifteen (15) days
after notice thereof is given to Executive by the Board; (v) the intentional wrongful damage to
material property of the Company or its affiliates; or (vi) drug or alcohol abuse or other
intentional conduct by Executive which causes the Company and its affiliates substantial public
disrepute or substantial economic harm. Notwithstanding the foregoing, the Company shall not be
entitled to terminate Executive for Cause under clause (ii) above, unless (A) the Board shall have
made a good faith investigation into the existence of the commission of the fraud, embezzlement or
theft which would serve as the basis of Executive’s termination for Cause under clause (ii) above,
during which investigation the Company may place Executive on a paid administrative leave of
absence and (B) no less than 2/3 of the members of the Board (excluding Executive if Executive is
then a member of the Board) shall have made a good faith determination that the Company is entitled
to terminate Executive for Cause under clause (ii) above.
(c) “Voluntary Termination” shall mean a termination of employment by Executive on Executive’s
own initiative other than (i) a termination due to Disability or (ii) a termination for Good
Reason.
5.4 Termination by the Company without Cause or by Executive for Good Reason. The
Company may terminate Executive’s employment hereunder without Cause, and Executive shall be
permitted to terminate Executive’s employment hereunder for Good Reason (as hereinafter defined).
If the Company terminates Executive’s employment hereunder without Cause, other than due to death
or Disability, or if Executive effects a termination for Good Reason, Executive shall be entitled
to receive the payments and benefits set forth in this Section 5.4.
(a) If Executive’s employment hereunder is terminated by the Company without Cause, so long as
Executive has not breached any of the terms contained in Section 4, Executive shall be
entitled to each of the following:
(i) Executive’s Accrued Employment Entitlements;
(ii) Executive’s annual Base Salary in effect as of the date of such termination, payable in
accordance with the Company’s normal payroll practices for a period of twelve (12) months following
any such termination; provided, however, that if Executive is, as of the date of such termination,
a “specified employee” within the meaning of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), any amount that is (1) not treated as a short-term deferral within the
meaning of Treas. Reg. § 1.409A-1(b)(4), and (2) exceeds the separation pay limit under Treas. Reg.
§ 1.409A-1(b)(9)(iii)(A) (two times the lesser of (A) the sum of Executive’s annualized
compensation based on Executive’s annual Base Salary for the calendar year preceding the calendar
year in which termination occurs (adjusted for any increase during that year that was expected to
continue indefinitely if Executive’s employment had not been terminated), or (B) the maximum amount
that may be taken into account under a qualified plan pursuant to Code Section 401(a)(17) for the
year in which such termination occurs), will not be paid before the date that is six months after
such date of termination, or if earlier, the date of Executive’s death. Any payments or benefits
to which Executive would otherwise be entitled during such non-payment period will be accumulated
and paid or otherwise provided to Executive on the first day of the seventh month following such
date of termination, or if earlier, within 30 days of Executive’s death to his surviving spouse (or
to his estate if Executive’s spouse does not survive him). For purposes of this Section
5.4(a)(ii) and Section 5.4(b), any amount that is paid as a short-term deferral within
the meaning of Treas. Reg. § 1.409A-1(b)(4), or
within the separation pay limit under Treas. Reg. § 1.409A-1(b)(9)(iii)(A) shall be treated as
a separate payment, provided the aggregate of the separate payments under this Section
5.4(a)(ii) shall not exceed an amount equal to the Executive’s annual Base Salary in effect as
of the date of such termination or for a period in excess of twelve (12) months following any such
termination;
(iii) an amount equal to the most recent Annual Bonus received by Executive for any fiscal
year ended prior to the date of such termination (determined without regard to any performance
goals) , payable in a lump sum within thirty (30) days following such termination of employment;
provided further, that if such termination or resignation occurs within thirty (30) days prior to
the calendar year end, the payment, without interest, of the amount paid for a termination by the
Company without Cause shall be paid no earlier than January 1 of the next year; and
(iv) Executive and Executive’s dependents shall be entitled to continue to participate in the
Company’s welfare benefit plans and insurance programs on the same terms as other actively employed
executives for a period of twelve (12) months from the termination date. Following the expiration
of such twelve-month period, Executive and/or Executive’s dependents shall be entitled to any
continuation of benefits as are provided under such benefit plans by the Company or as are required
to be provided in accordance with applicable law.
(b) If Executive’s employment hereunder is terminated by the Executive for Good Reason, so
long as Executive has not breached any of the terms contained in Section 4, Executive shall
be entitled to the benefits provided in Section 5.4(a), except the severance benefit
specified in Section 5.4(a)(ii) (the “Regular Severance Benefit”) shall be payable in a
lump sum (the “Permitted Lump Sum Benefit”) to the extent it is (1) treated as a short-term
deferral within the meaning of Treas. Reg. § 1.409A-1(b)(4), or (2) does not exceed the separation
pay limit under Treas. Reg. § 1.409A-1(b)(9)(iii)(A) (two times the lesser of (A) the sum of
Executive’s annualized compensation based on Executive’s annual Base Salary for the calendar year
preceding the calendar year in which termination occurs (adjusted for any increase during that year
that was expected to continue indefinitely if Executive’s employment had not been terminated), or
(B) the maximum amount that may be taken into account under a qualified plan pursuant to Code
Section 401(a)(17) for the year in which such termination occurs), as described in Section
5.4(a)(ii). The Permitted Lump Sum Benefit shall be payable within thirty (30) days following
such termination of employment; provided further, that if such termination or resignation occurs
within thirty (30) days prior to the calendar year end, the payment, without interest, of the
Permitted Lump Sum Benefit paid for a termination by Executive for Good Reason shall be paid no
earlier than January 1 of the next year and any remaining amount shall be payable in installments
in accordance with the Regular Severance Benefit provisions of Section 5.4(a)(ii).
(c) Any outstanding stock options granted to Executive shall be vested and/or exercisable for
the period through the date of such termination of employment, and shall remain exercisable, in
accordance with the terms contained in the plan and the agreement pursuant to which such option
awards were granted.
(d) For purposes of the calculation of Executive’s benefits under any supplemental defined
benefit plan in which Executive participates, Executive shall be credited with one additional year
of service as a result of termination pursuant to this Section 5.4.
(e) “Good Reason” means and shall be deemed to exist if, without the prior written consent of
Executive, (i) Executive suffers a significant reduction in duties, responsibilities or effective
authority associated with Executive’s titles and positions as set forth and described in this
Agreement or is assigned any duties or responsibilities inconsistent in any material respect
therewith (other than in connection with a termination for Cause); (ii) the Company fails to pay
Executive any amounts or provide any benefits required to be paid or provided under this Agreement
or is otherwise in material breach of this Agreement; (iii) the Company adversely changes
Executive’s titles or reporting requirements; (iv) Executive’s Base Salary or benefits provided for
hereunder are materially decreased other than as part of reductions affecting the Company’s
executives generally; or (v) the Company transfers Executive’s primary workplace by more than
twenty (20) miles from the current workplace. No termination by Executive shall be for “Good
Reason” unless written notice of such termination setting forth in particular the event(s)
constituting Good Reason is delivered to the Company within thirty (30) days following the
date on which the event constituting Good Reason occurs and the Company fails to cure or
remedy the event(s) identified in the notice within thirty (30) days after receipt of such notice.
Notwithstanding the foregoing, the appointment of a new Chief Executive Officer as a result of the
succession plan for Xxx Xxx Xxxxxxxx as approved by him and the assignment by the Board to such
Chief Executive Officer of such duties, responsibilities and authority as are customarily
associated with the position of chief executive officer of a corporation comparable to the Company
shall not in and of itself serve as the basis for Executive to terminate his employment with Good
Reason under clause (i) above.
5.5 General Release. Except where the termination is the result of Executive’s death
and notwithstanding the foregoing, no payment shall be made by the Company to Executive under this
Section 5 unless otherwise required by state, local or federal law, until Executive
executes a general release of all claims in a form reasonably approved by the Company. The terms
of any such general release will not, without the written consent of the Executive, terminate any
continuing payment or benefit obligations hereunder by the Company to the Executive.
Notwithstanding the foregoing, if the Company fails to deliver a form of general release to the
Executive by the forty-fifth (45th) day following the date of termination, the Executive will be
deemed to have satisfied the condition of this Section 5.5 without being required to execute a
general release.
5.6 Office Support. Upon the termination of Executive’s employment hereunder for any
reason except for Cause, the Company shall make available to Executive, at the Company’s expense,
an office and support services, (including, without limitation, telephone, telefax and internet
access), at the Company’s election, either at the Company’s main office or at another suitable
office space in the Dallas/Plano area, for a period not to exceed three (3) months following the
date of such termination.
5.7 Section 5 and this Agreement shall be administered and interpreted to maximize the
short-term deferral exception to Code Section 409A, and Executive shall not, directly or
indirectly, designate the taxable year of a payment made under this Agreement. The portion of any
payment under this Agreement that is paid within the short-term deferral period (within the meaning
of Code Section 409A and Treas. Reg. § 1.409A-1(b)(4)) will be treated as a short term deferral and
not aggregated with other plans or payments. Any other portion of the payment that does not meet
the short-term deferral requirement will, to the maximum extent possible, be deemed to satisfy the
exception from Code Section 409A under Treas. Reg. § 1.409A-1(b)(9)(iii)(A) for involuntary
separation pay and shall not be aggregated with any other payment. Any right to a series of
installment payments pursuant to this Agreement is to be treated as a right to a series of separate
payments. Any amount that is paid as a short-term deferral within the meaning of Treas. Reg. §
1.409A-1(b)(4) or within the involuntary separation pay limit under Treas. Reg.
§1.409A-1(b)(9)(iii)(A) will be treated as a separate payment. Payment dates provided for in this
Agreement are deemed to incorporate “grace periods” within the meaning of Code Section 409A.
6 Arbitration.
6.1 General. Any dispute, controversy or claim arising out of or relating to this
Agreement, the breach hereof or the coverage or enforceability of this arbitration provision shall
be settled by arbitration in Dallas, Texas (or such other location as the Company and Executive may
mutually agree), conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, as such rules are in effect in Dallas/Fort Worth, Texas on the date of
delivery of demand for arbitration. The arbitration of any such issue, including the determination
of the amount of any damages suffered by either party hereto by reason of the acts or omissions of
the other, shall be to the exclusion of any court of law. Notwithstanding the foregoing, either
party hereto may seek any equitable remedy in a court to enforce the provisions of this Agreement,
including but not limited to an action for injunctive relief or attachment, without waiving the
right to arbitration.
6.2 Procedure.
(a) Either party may demand such arbitration by giving notice of that demand to the other
party. The party demanding such arbitration is referred to herein as the “Demanding Party,” and
the party adverse to the Demanding Party is referred to herein as the “Responding Party.” The
notice shall state (x) the matter in controversy, and (y) the name of the arbitrator selected by
the party giving the notice.
(b) Not more than fifteen (15) days after such notice is given, the Responding Party shall
give notice to the Demanding Party of the name of the arbitrator selected by the Responding Party.
If the Responding Party shall fail to timely give such notice, the arbitrator that the Responding
Party was entitled to select shall be named by the Arbitration Committee of the American
Arbitration Association. Not more than fifteen (15) days after the second arbitrator is so named;
the two arbitrators shall select a third arbitrator. If the two arbitrators shall fail to timely
select a third arbitrator, the third arbitrator shall be named by the Arbitration Committee of the
American Arbitration Association.
(c) The dispute shall be arbitrated at a hearing that shall be concluded within ten days
immediately following the date the dispute is submitted to arbitration unless a majority of the
arbitrators shall elect to extend the period of arbitration. Any award made by a majority of the
arbitrators (x) shall be made within ten days following the conclusion of the arbitration hearing,
(y) shall be conclusive and binding on the parties, and (z) may be made the subject of a judgment
of any court having jurisdiction.
(d) Any amount to which Executive is entitled under this Agreement (including any disputed
amount) which is not paid when due shall bear interest from the date due but not paid at a rate
equal to the lesser of eight percent (8%) per annum and the maximum lawful rate.
6.3 Costs and Expenses. All administrative and arbitration fees, costs and expenses
shall be borne fifty percent (50%) by the Company and fifty percent (50%) by Executive.
7 Non-Assignment. This Agreement shall not be assignable nor the duties hereunder
delegable by Executive. None of the payments hereunder may be encumbered or in any way anticipated
by Executive (or Executive’s estate or personal representative). The Company shall not assign this
Agreement nor shall it transfer all or any substantial part of its assets without first obtaining
in conjunction with such transfer the express assumption of the obligations hereof by the assignee
or transferee.
8 Remedies. Executive acknowledges that the services Executive is to render under
this Agreement are of a unique and special nature, the loss of which cannot reasonably or
adequately be compensated for in monetary damages, and that irreparable injury and damage will
result to the Company and its Subsidiaries in the event of any default or breach of this Agreement
by Executive. The parties agree and acknowledge that the breach by Executive of any of the terms
of this Agreement will cause irreparable damage to the Company and its affiliates, and upon any
such breach, the Company shall be entitled to injunctive relief, specific performance, or other
equitable relief (without posting a bond or other security); provided, however, that this shall in
no way limit any other remedies which the Company and its affiliates may have (including, without
limitations, the right to seek monetary damages).
9 Survival. The provisions of Sections 4 through 19 shall survive the
expiration or earlier termination of the Term.
10 Taxes. All payments to Executive under this Agreement shall be reduced by all
applicable withholding required by Federal, state or local law.
11 No Obligation to Mitigate; No Rights of Offset.
11.1 Executive shall not be required to mitigate the amount of any payment or other benefit
required to be paid to Executive pursuant to this Agreement, whether by seeking other employment or
otherwise, nor shall the amount of any such payment or other benefit be reduced on account of any
compensation earned by Executive as a result of employment by another person; provided that
Executive and Executive’s dependents shall not be entitled to continue to participate in the
welfare benefit plans of the Company and its Subsidiaries if Executive is covered by the welfare
benefit plans of another employer.
11.2 The Company’s obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have against Executive or
others.
12 Notices. Any notice or other communications relating to this Agreement shall be in
writing and delivered personally or mailed by certified mail, return receipt requested, or sent by
overnight courier, to the party concerned at the address set forth below:
If to Company:
|
0000 Xxxxxx Xxxxxxx, Xxxxx 000 | |
| Xxxxx, Xxxxx 00000 | ||
| Attn: Chief Executive Officer | ||
If to Executive:
|
At Executive’s residence address as maintained by the Company in the regular course of its business for payroll purposes. |
Either party may change the address for the giving of notices at any time by written notice
given to the other party under the provisions of this Section 12. If notice is given by
personal delivery or overnight courier, said notice shall be conclusively deemed given at the time
of such delivery or upon receipt of such couriered notice. If notice is given by mail, such notice
shall be conclusively deemed given upon deposit thereof in the United States mail.
13 Entire Agreement. This Agreement constitutes the entire agreement between the
parties and supersedes all prior written and oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter hereof. Without limiting the
generality of the foregoing sentence, this Agreement supersedes any prior employment agreement,
oral or written, including the Employment Agreement, dated as of March 12, 2004, between the
Company and Executive, as amended, which shall terminate and be cancelled as of the Effective Date,
except for any breaches thereof by Executive prior to the Effective Date which shall survive such
termination. This Agreement may not be changed orally, but only by an agreement in writing signed
by both parties.
14 Counterparts. This Agreement may be executed in counterparts, each of which shall
be an original, but all of which together shall constitute one agreement.
15 Construction. This Agreement shall be governed under and construed in accordance
with the laws of the State of Texas, without regard to the principles of conflicts of laws. The
paragraph headings and captions contained herein are for reference purposes and convenience only
and shall not in any way affect the meaning or interpretation of this Agreement. It is intended by
the parties that this Agreement be interpreted in accordance with its fair and simple meaning, not
for or against either party, and neither party shall be deemed to be the drafter of this Agreement.
16 Severability. The parties agree that if any provision of this Agreement as applied
to any party or to any circumstance is adjudged by a court or arbitrator to be invalid or
unenforceable, the same will in no way affect any other circumstance or the validity or
enforceability of this Agreement. Without limiting the generality of the foregoing, in particular,
if any provision in Section 4, or any part thereof, is held to be unenforceable because of
the duration of such provision or the area covered thereby, the parties agree that the court or
arbitrator making such determination shall have the power to reduce the duration and/or area of
such provision, and/or to delete specific words or phrases, and in its reduced form, such provision
shall then be enforceable and shall be enforced. In addition, in the event of a breach or
violation by Executive of Section 4, the Non-compete Period and the Non-solicitation
Period shall be automatically extended respectively by the amount of time between the initial
occurrence of the breach or violation and when such breach or violation has been duly cured.
17 Binding Effect. Subject to Section 7 hereof, the rights and obligations of
the parties under this Agreement shall be binding upon and inure to the benefit of the permitted
successors, assigns, heirs, administrators, executors and personal representatives of the parties.
18 Effective Date; Effect on Original Agreement. This Agreement shall become
effective as of the date first written above. This Agreement contains the entire understanding
between the parties hereto and supersedes in all respects any prior or other agreement or
understanding between the Company or any affiliate of the Company and Executive, including, without
limitation, the Employment Agreement, dated as of March 12, 2004, as
amended to the date hereof, by and between Cinemark, Inc. and Executive, which agreement shall
terminate in all respects upon the Effective Date.
19 Executive’s Cooperation. During the Term and for five (5) years thereafter,
Executive shall cooperate with the Company and its Subsidiaries in any internal investigation, any
administrative, regulatory or judicial proceeding or investigation or any material dispute with a
third party, in each case as reasonably requested by the Company (including, without limitation,
Executive’s being reasonably available to the Company upon reasonable notice for interviews and
factual investigations, appearing at the Company’s request to give testimony without requiring
service of subpoena or other legal process, volunteering to the Company all pertinent information
and turning over to the Company all relevant documents which are or may come into Executive’s
possession, all at times and on schedules that are reasonably consistent with Executive’s other
activities and commitments), in each case limited to the extent that such cooperation (a) becomes
unduly burdensome for Executive (including in terms of the time commitments required by Executive
in connection with such cooperation), (b) in the event that such cooperation is required after the
Term, unreasonably interferes with Executive’s duties under his then current employment, (c) causes
Executive to breach in any material respect any material agreement by which he is bound, or (d) is
limited to the extent Executive is advised by legal counsel that such cooperation would not be in
Executive’s best interests. In the event that the Company requires Executive’s cooperation in
accordance with this paragraph, the Company shall reimburse Executive solely for: (i) his
reasonable out-of-pocket expenses (including travel, lodging and meals) upon submission of receipts
and (ii) any reasonable attorneys’ fees incurred by Executive to the extent that, after
consultation with the Company, Executive deems it advisable to seek the advice of legal counsel
regarding his obligations hereunder.
[Signature page follows]
IN WITNESS WHEREOF, the parties have executed this Employment Agreement on the day and in the
year first written above.
| COMPANY: CINEMARK HOLDINGS, INC. |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx X. Stock | |||
| Title: | Chief Executive Officer | |||
| EXECUTIVE: |
||||
| /s/ Xxxx Xxxxxx | ||||
| Xxxx Xxxxxx | ||||
