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GC COMPANIES, INC.
EXHIBIT 10.13
TERMINATION AGREEMENT
1. This is a Termination Agreement between Xxxxxxx Xxxxxx (the "Executive") and
GC Companies, Inc. ("GCX" or the "Company"). Beginning September 18, 1995, the
Executive will be employed "at-will" as the Executive Vice President and Chief
Operating Officer of the General Cinema Theatres division of the Company, and
either the Executive or the Company may terminate the Executive's employment at
any time, with or without notice, for any reason.
2. Notwithstanding the at-will relationship, the Company is willing to enter
into this Termination Agreement.
3. Between September 18, 1995 and September 19, 2000, while the Executive is
employed at-will, if the Company terminates the Executive's employment other
than "for cause" or other than due to "total disability" or death, or if the
Executive voluntarily terminates his own employment due to a "change in control"
of the Company, then, subject to the limitations of paragraph 5 below, the
Company agrees to provide the Executive a termination package consisting of an
amount equivalent to his then-current, one year base salary, which amount would
be paid in 12 regular, monthly installments following such termination.
4. If the Executive's employment with the Company ceases in a manner which
entitles him to the payments set forth in paragraph 4, the Company's payment
obligation to the executive may be reduced as follows:
If the Executive is or becomes engaged in employment (including
contract employment or self employment) of any kind during the period
beginning six months after and ending 12 months after the Executive's
voluntary or involuntary termination, then any payment obligations of
the Company during that six month period will be reduced
dollar-for-dollar by the amount the Executive earns through such
employment. In this regard, the Executive agrees that, as a condition
of receiving any payments under this Agreement, he shall inform the
Company, as to the details of his post-termination employment
activities. The Company may withhold any amounts payable until he
provides such information.
5. For the purpose of determining the Executive's eligibility for the
termination package set forth in this Termination Agreement:
a. "For cause" means that, in the reasonable judgement of the
Company, the Executive:
(1) failed to devote his full time, loyalty, best
efforts, skills, knowledge and ability to the
performance of his duties;
(2) committed an act of malfeasance or failed to
render services exclusively to the Company; or,
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(3) engaged in conduct detrimental to the best
interests of the Company.
b. "Total disability" means that, in the judgement of
the Company, the Executive is unable to perform his duties
for: (i) 45 consecutive business days or (ii) for a total of
90 business days during any nine-month period.
c. "Change of control" shall have the meaning set
forth in the GC Companies, Inc. Revolving Credit Agreement
with The Bank of Nova Scotia and The First National Bank of
Boston dated March 24, 1994.
6. During that period of the Executive's at-will employment, which begins
September 18, 1995, and ends September 19, 2000, payment by the Company of the
termination package set forth in paragraph 4 constitutes full satisfaction of
all Company financial obligations to the Executive (if any) which arise from or
relate in any way to the termination of the Executive's employment. However,
nothing in this paragraph 7 is intended to affect any earned, vested rights that
the Executive may have under the applicable provisions of: (i) any life
insurance policy or plan (group or otherwise) maintained for the Executive by
the Company or (ii) any other "employee benefit pension plan," as defined by
Section 3 of ERISA, then in effect and in which the Executive is participating
under the terms of such plan.
7. The invalidity of all or any part of a provision of any section of this
Termination Agreement will not render invalid the remainder of this Termination
Agreement or the remainder of such sections or any other of its provisions.
8. This Termination Agreement contains the entire agreement and supersedes all
prior agreements and understandings, oral or written, between the parties hereto
with respect to the termination of the Executive's at-will employment and to the
subject matter of the Termination Agreement. The Termination Agreement may not
be changed orally. It may be changed only by written agreement signed by the
party against whom any waiver, charge amendment, modification or discharge is
sought.
9. This Termination Agreement will be construed as to both validity and
performance and enforced in accordance with the laws of the Commonwealth of
Massachusetts, without giving effect to the principles of conflicts of laws
thereof. Please sign below in formal acceptance of the Executive Vice President
and Chief Operating Officer position and in agreement with the terms and
conditions of employment, including your relocation offer, and return this
letter to Xxx Xxxxxxxxxx within seven days of receipt. An extra copy is enclosed
for your records. In the interim, should you have any questions about this offer
or the Company, please do not hesitate to contact me.
Sincerely,
Xxxx X. Del Xxxxx
President
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Agreed and accepted:
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Xxxxxxx Xxxxxx Date
DEFINITIONS ASSOCIATED WITH "CHANGE IN CONTROL" AS REFERENCED IN OFFER LETTER TO
XXXXXXX XXXXXX DATED AUGUST 17, 1995:
Change of Control - The occurrence of any event whereby any Person (other than a
member of the Xxxxx Family Group), together with "affiliates" and "associates"
of such Person, within the meaning of Rule 12b-2 of the Exchange Act, shall
become the beneficial owner within the meaning of Rule 13d-3 of the Exchange Act
of more voting stock or total equity capital of the Company than the
beneficially owned by the Xxxxx Family Group if such Person together with such
"affiliates" and "associates" is also the beneficial owner within the meaning of
Rule 13d-3 of the Exchange Act of at least 15% of either the voting stock or
total equity capital of the Company.
Exchange Act - The Federal Securities Exchange Act of 1934 (or any successor
statute) and the rules and regulations promulgated thereunder, all as from time
to time in effect.
Person - Any present or future natural person or any corporation, association,
partnership, limited partnership, joint venture, company, business trust, trust,
organization, business or government or any governmental agency or political
subdivision thereof.
Xxxxx Family Group - The group of Persons originally party to the
Xxxxx-Xxxxx/Marks Stockholders Agreement pertaining to the stock of the Company
dated as of the date of consummation of the Spinoff (whether or not such
agreement is terminated) and the progeny of each such Person.
Spinoff - The transactions by which all of the shares of stock of the Company
were distributed to the shareholders of Harcourt General and the Company became
a publicly-owned corporation.
