Exhibit 10.5


 


UNITED STATES DISTRICT COURT FOR
THE

DISTRICT OF COLUMBIA


 


	
  DISTRICT OF COLUMBIA,

  	
   

  	
  *

  	
   

  
	
  a municipal corporation,

  	
   

  	
  *

  	
   

  
	
  441 4th Street,
  N.W., 

  	
   

  	
  *

  	
  Civil Action No.

  
	
  Washington, D.C. 20001,

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
  *

  	
  Judge

  
	
  Plaintiff, 

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
  *

  	
  Calendar No.

  
	
  v.

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
  *

  	
   

  
	
  Marquee Holdings Inc.,

  	
   

  	
  *

  	
   

  
	
  a Delaware corporation,

  	
   

  	
  *

  	
  Stipulation

  
	
  d/b/a AMC Entertainment
  Inc.,

  	
   

  	
  *

  	
   

  
	
  1221 Avenue of the
  Americas

  	
   

  	
  *

  	
   

  
	
  39th Floor

  	
   

  	
  *

  	
   

  
	
  New York, NY 20020-1080

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
  *

  	
   

  
	
  and

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
  *

  	
   

  
	
  LCE Holdings, Inc.,

  	
   

  	
  *

  	
   

  
	
  a Delaware corporation,

  	
   

  	
  *

  	
   

  
	
  d/b/a Loews Cineplex
  Entertainment Corp.

  	
   

  	
  *

  	
   

  
	
  711 Fifth Avenue

  	
   

  	
  *

  	
   

  
	
  New York, NY 10022

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
  *

  	
   

  
	
  Defendants.

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
  *

  	
   

  



 


STIPULATION


 


It is stipulated by and between the
undersigned parties, through their respective attorneys, that:


 


The Court has jurisdiction over the subject
matter of this action and over each of the parties hereto, and venue of this
action is proper in the United States District Court for the District of
Columbia.


 





















 


1.             The parties consent that a Final Judgment in the
form hereto attached may be filed and entered by the Court without further
notice to any party or other proceedings, provided that the plaintiff has not
withdrawn its consent, which it may do at any time before the entry of the
proposed Final Judgment by serving notice thereof on the defendants and by
filing notice with the Court.


 


2.             The defendants shall abide by and comply with
the provisions of the proposed Final Judgment pending entry of the Final
Judgment, or until expiration of time for all appeals of any court ruling
declining the entry of the proposed Final Judgment, and shall, from the date of
the filing of this Stipulation, comply with all the terms and provisions
thereof as though the same were in full force and effect as an order of the
Court.


 


3.             This Stipulation shall apply with equal force
and effect to any amended proposed Final Judgment agreed upon in writing by the
parties and submitted to the Court.


 


4.             In the event the plaintiff withdraws its
consent or if the proposed Final Judgment is not entered pursuant to this
Stipulation, this Stipulation shall have no effect whatever and the making of
this Stipulation shall be without prejudice to any party in this or any other
proceeding.


 


5.             The defendants represent that the required
actions set forth in the proposed Final Judgment can and will be implemented
and followed and that the defendants will later raise no claim of hardship or
difficulty as grounds for asking the Court to modify any of the provisions
contained therein.


 


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  Respectfully submitted,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FOR THE DISTRICT OF COLUMBIA:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROBERT J. SPAGNOLETTI

  
	
   

  	
  Attorney General for the District of Columbia

  
	
   

  	
   

  
	
   

  	
  DAVID M. RUBENSTEIN (DC Bar 458770)

  Deputy Attorney General

  Public Safety Division

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Bennett Rushkoff

  
	
   

  	
  BENNETT RUSHKOFF (DC Bar 386925)

  Chief Consumer and Trade Protection Section

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Don A. Resnikoff

  
	
   

  	
  DON A. RESNIKOFF(DC Bar 386688)

  Senior Assistant Attorney General

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Anika Sanders Cooper

  
	
   

  	
  ANIKA SANDERS COOPER (DC Bar 458863)

  
	
   

  	
  Assistant Attorney General

  
	
   

  	
  Office of the Attorney General

  
	
   

  	
  441 4th Street, NW

  
	
   

  	
  Suite 450N

  
	
   

  	
  Washington, DC 20001

  
	
   

  	
  Ph: (202) 727-6241

  
	
   

  	
  Fax: (202) 727-6546

  
	
   

  	
   

  
	
   

  	
  Attorneys for the District of Columbia

  
	
   

  	
   

  
	
   

  	
  Dated: December 21, 2005 

  



 


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  FOR MARQUEE HOLDINGS INC.:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Ilene Knable Gotts

  
	
   

  	
  ILENE KNABLE GOTTS (DC Bar 384740)

  DAMIAN G. DIDDEN

  Wachtell, Lipton, Rosen & Katz

  51 West 52nd Street

  New York, New York 10019

  Ph: (212) 403-1247

  Fax: (212) 403-2247

  
	
   

  	
   

  
	
   

  	
  Attorneys for Marquee Holdings Inc.

  
	
   

  	
   

  
	
   

  	
  Dated:
  

  	
  December 15, 2005

  	
   

  



 


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  FOR LCE HOLDINGS, INC.:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Jonathan I. Gleklen

  
	
   

  	
  JONATHAN I. GLEKLEN (DC Bar 443660)

  DEBORAH L. FEINSTEIN

  Arnold & Porter LLP

  
	
   

  	
  555 Twelfth Street, N.W.

  
	
   

  	
  Washington, D.C. 20004-1206

  
	
   

  	
  Ph: (202) 942-5454

  
	
   

  	
  Fax: (202) 942-5999

  
	
   

  	
   

  
	
   

  	
  Attorney for LCE Holdings, Inc. 

  
	
   

  	
   

  
	
   

  	
  Dated: 

  	
  12/16/2005

  	
   

  



 





















 


UNITED
STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA


 


	
  DISTRICT OF COLUMBIA,

  	
   

  	
  *

  	
   

  
	
  a municipal corporation,

  	
   

  	
  *

  	
   

  
	
  441 4th Street,
  N.W., 

  	
   

  	
  *

  	
  Civil Action No.

  
	
  Washington, D.C. 20001,

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
  *

  	
  Judge

  
	
  Plaintiff, 

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
  *

  	
  Calendar No.

  
	
  v.

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
  *

  	
   

  
	
  Marquee Holdings Inc.,

  	
   

  	
  *

  	
   

  
	
  a Delaware corporation,

  	
   

  	
  *

  	
  [Proposed] Stipulated
  Final

  
	
  d/b/a AMC Entertainment
  Inc.,

  	
   

  	
  *

  	
  Judgment

  
	
  1221 Avenue of the
  Americas

  	
   

  	
  *

  	
   

  
	
  39th Floor

  	
   

  	
  *

  	
   

  
	
  New York, NY 20020-1080

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
  *

  	
   

  
	
  and

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
  *

  	
   

  
	
  LCE Holdings, Inc.,

  	
   

  	
  *

  	
   

  
	
  a Delaware corporation,

  	
   

  	
  *

  	
   

  
	
  d/b/a Loews Cineplex
  Entertainment Corp.

  	
   

  	
  *

  	
   

  
	
  711 Fifth Avenue

  	
   

  	
  *

  	
   

  
	
  New York, NY 10022

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
  *

  	
   

  
	
  Defendants.

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
  *

  	
   

  



 


[PROPOSED]
STIPULATED FINAL JUDGMENT


 


WHEREAS, on June 21, 2005, defendants announced their intention to
merge (the “proposed transaction”);


 


AND WHEREAS, the District of Columbia (“plaintiff”) filed its Complaint
against Marquee Holdings Inc. and LCE Holdings, Inc. (“defendants”) on December 21,
2005, and plaintiff and defendants by their respective attorneys have consented
to the entry of this Final Judgment without trial or adjudication of any issue
of fact or law herein, and without this Final Judgment constituting any
evidence against or an admission by any party with respect to any issue of law
or fact herein;


 





















 


AND WHEREAS, defendants have agreed to be bound by the provisions of
this Final Judgment pending its approval by the Court;


 


AND WHEREAS, this Final Judgment requires defendants, as a condition of
the proposed transaction, to promptly divest the two theaters in the District
of Columbia identified below;


 


AND WHEREAS, plaintiff’s purpose in seeking these divestitures, and
plaintiff’s actions in effectuating these divestitures, are to establish a
viable competitor(s) in the District of Columbia in the exhibition of first-run
movies;


 


AND WHEREAS, defendants have represented to the plaintiff that the
divestitures ordered herein will be made, and that defendants will later raise
no claim of hardship or difficulty in accomplishing the divestitures as grounds
for asking the Court to modify the divestiture requirements of this Final
Judgment;


 


NOW, THEREFORE, before the taking of any testimony, and without trial
or adjudication of any issue of fact or law herein, and upon consent of the
parties hereto, it is hereby ORDERED, ADJUDGED, AND DECREED as follows:


 


I.              JURISDICTION


 


This Court has jurisdiction over each of the parties hereto and over
the subject matter of this action. The Complaint states a claim by the
plaintiff upon which relief may be granted against the defendants, as
hereinafter defined, under Section 7 of the Clayton Act, as amended (15
U.S.C. § 18) and the District of Columbia Antitrust Act (D.C. Code § 28-4501
et seq.).


 


II.            DEFINITIONS


 


“OAG” means the Office of the Attorney General for the District of
Columbia.


 


“AMC” means Marquee Holdings Inc. d/b/a AMC Entertainment Corporation
and AMC Theatres, a Delaware corporation with its principal place of business
in New York, and its successors, assigns, subsidiaries, divisions, groups,
affiliates, partnerships and joint ventures, and directors, officers, managers,
agents, and employees.


 


“Loews” means LCE Holdings, Inc. d/b/a Loews Cineplex
Entertainment Corporation and Loews Theatres, a Delaware corporation with its
principal place of business in New York, and its successors, assigns,
subsidiaries, divisions, groups, affiliates, partnerships and joint ventures,
and directors, officers, managers, agents, and employees.


 


“Defendants” means AMC and Loews, collectively or individually.


 


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The “District of Columbia theatre assets” means the movie theatre
business operated by AMC at Union Station, 50 Massachusetts Avenue, NE,
Washington, DC, and the movie theatre business operated by Loews at 4000
Wisconsin Avenue, NW, Washington, DC. This term includes all tangible and
intangible assets used in the operation of these theatres including: all real
property (owned and leased); all personal property, inventory, office
furniture, fixed assets and fixtures, materials, supplies, and other tangible
property or improvements used in the operation of the theatres; all licenses,
permits and authorizations issued by any governmental organization relating to
the operation of the theatres, and all contracts, agreements, leases, licenses,
commitments and understandings pertaining to the theatres including supply
agreements and licenses to exhibit motion pictures. Provided however, that this
term does not include (1) any right to use or interest in the defendants’
trade names, trade marks and copyrighted material, or (2) assets that the defendants
do not own and are not legally able to transfer. With the approval of OAG, in
its sole discretion, the District of Columbia theatre assets may be modified to
exclude assets and rights that are not necessary to meet the competitive aims
of this Final Judgment and assets that the Acquirer(s) does not desire to
purchase.


 


“Acquirer” means the entity or entities to whom defendants divest the
District of Columbia theatre assets under this Final Judgment.


 


III.           APPLICABILITY


 


A.   The
provisions of this Final Judgment apply to defendants, their successors and assigns,
their subsidiaries, directors, officers, managers, agents, and employees, and
all other persons in active concert or participation with any of them who shall
have received actual notice of this Final Judgment by personal service or otherwise.


 


B.   Defendants
shall require a party that acquires all or substantially all of the assets used
in defendants’ business of operating movie theaters in the District of Columbia
to be bound by the provision of this Final Judgment; provided, however, that
defendants need not obtain such an agreement from an Acquirer in connection
with the divestiture of the District of Columbia theatre assets.


 


IV.           DIVESTITURE


 


A.   Defendants
are hereby ordered and directed in accordance with the terms of this Final
Judgment, within 180 calendar days after the filing of the Complaint in this matter
or within 60 calendar days of the consummation of the proposed transaction,
whichever is later, to divest the District of Columbia theatre assets to an
Acquirer or Acquirers acceptable to OAG in its sole discretion.


 


B.   Defendants
shall use their best efforts to accomplish the divestitures as expeditiously
and timely as possible. The OAG, in its sole discretion, may extend


 


3





















 


the time period for any divestiture for two additional 30 day periods
of time, not to exceed 60 calendar days in total.


 


C.   In
accomplishing the divestitures ordered by this Final Judgment, defendants shall
promptly make known, by usual and customary means, the availability of the District
of Columbia theatre assets described in this Final Judgment. Defendants shall
inform any person making an inquiry regarding a possible purchase that the sale
is being made pursuant to this Final Judgment and provide such person with a copy
of this Final Judgment. Defendants shall also furnish to all prospective Acquirers,
subject to customary confidentiality assurances, all information regarding the
District of Columbia theatre assets customarily provided in a due diligence
process, except such information subject to attorney-client privilege or attorney
work-product privilege.


 


D.   Defendants
shall not take any action that will impede in any way the operation of the
District of Columbia theatre assets or jeopardize the divestitures described in
this Final Judgment. Unless OAG otherwise consents in writing, defendants shall
maintain and operate the theatres to be divested as active businesses, maintain
the management, staffing, sales, and marketing of the theatres at levels
substantially the same as current levels, and maintain the theatres in operable
condition at current capacity configurations. The obligation of defendants to
maintain and operate District of Columbia theatre assets terminates at the
accomplishment of the divestures or by order of the Court pursuant to Section V.F.
of this Final Judgment. Nothing in this paragraph shall prevent the defendants
from competing with the Acquirer(s) after the divestiture of the District of
Columbia theatre assets has been accomplished.


 


E.    Unless
OAG otherwise consents in writing, the divestitures pursuant to Section IV, or
by trustee appointed pursuant to Section V of this Final Judgment, shall include
the entire District of Columbia theatre assets and be accomplished by selling
or otherwise conveying the District of Columbia theatre assets in such a way as
to satisfy OAG in its sole discretion that the District of Columbia theatre assets
will be used by the Acquirer(s) as part of a viable, ongoing business of exhibition
of first-run films. The divestitures, whether pursuant to Section IV or Section V
of this Final Judgment: (1) shall be made to an Acquirer or Acquirers who
it is demonstrated to OAG’s sole satisfaction has or have the intent and capability
(including the necessary managerial, operational, and financial capability) of
competing effectively in the business of exhibition of first-run films; (2) shall
be accomplished so as to satisfy OAG, in its sole discretion, that none of the
terms of any agreement between an Acquirer and AMC or Loews give the defendants
the ability unreasonably to raise the Acquirer’s costs, to lower the Acquirer’s
efficiency, or otherwise to interfere with the ability of the Acquirer to compete
effectively.


 


F.    Within
20 calendar days of the filing of the Complaint in this matter and every 30 calendar
days thereafter until the divestitures have been completed, defendants


 


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shall deliver to OAG a progress report describing defendants’ efforts
in divesting and maintaining the District of Columbia theatre assets. The
progress report shall include, at a minimum, (1) the name, address, phone
number of any person who has expressed any interest in acquiring, negotiating
or receiving more information about the District of Columbia theatre assets; (2) the
efforts defendants have made in soliciting and providing information to
prospective Acquirers; and (3) any changes in the management, staffing,
sales, and play policies of the District of Columbia theatre assets.


 


V.            APPOINTMENT OF TRUSTEE


 


A.   In the
event that defendants have not divested the District of Columbia theatre assets
within the time specified in Section IV of this Final Judgment, the Court shall
appoint, on application of OAG, a trustee selected by OAG to effect the divestiture
of the District of Columbia theatre assets.


 


B.   After
the appointment of a trustee becomes effective, only the trustee shall have the
right to sell the District of Columbia theatre assets included in the trustee’s
appointment. The trustee shall have the power and authority to accomplish any divestitures
at the best price then obtainable upon a reasonable effort by the trustee and
shall have such other powers as the Court shall deem appropriate. Subject to Section V.C.
of this Final Judgment, the trustee shall have the power and authority to hire
at the cost and expense of defendants any investment bankers, attorneys, or
other agents reasonably necessary in the judgment of the trustee to assist in
the divestitures, and such professionals and agents shall be accountable solely
to the trustee. The trustee shall have the power and authority to accomplish
any District of Columbia theatre assets divestitures at the earliest possible
time to an Acquirer or Acquirers acceptable to OAG in its sole discretion, and
shall have such other powers as this Court shall deem appropriate. Defendants
shall not object to a sale by the trustee on any grounds other than the trustee’s
malfeasance, or on the grounds that the sale is contrary to the express terms
of this Final Judgment. Any such objections by defendants must be conveyed in
writing to OAG and the trustee within ten calendar days after the trustee has
provided the notice required under Section VII of this Final Judgment.


 


C.   The
trustee shall serve at the cost and expense of defendants, on such terms and conditions
as the Court may prescribe, and shall account for all monies derived from the
sale of the assets sold by the trustee and all costs and expenses so incurred.
After approval by the Court of the trustee’s accounting, including fees for its
services and those of any professionals and agents retained by the trustee, all
remaining money shall be paid to defendants and the trust shall then be terminated.
The compensation of such trustee and of any professionals and agents retained
by the trustee shall be reasonable in light of the value of the divested business
and based on a fee arrangement providing the trustee with an incentive based on
the price and terms of the divestitures and the speed with which they are accomplished.


 


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D.   Defendants shall use their best efforts to
assist the trustee in accomplishing the required divestitures, including best
efforts to effect all necessary consents and regulatory approvals. The trustee,
and any consultants, accountants, attorneys and other persons retained by the
trustee, shall have full and complete access to the personnel, books, records,
and facilities of the businesses to be divested, and defendants shall develop
financial or other information relevant to the business to be divested
customarily provided in a due diligence process as the trustee may reasonably
request, subject to customary confidentiality assurances. Defendants shall
permit prospective Acquirers of the assets to have reasonable access to personnel
and to make such inspection of physical facilities and any and all financial,
operational or other documents and other information as may be relevant to the
divestitures required by this Final Judgment.


 


E.    After its appointment, the trustee shall file
monthly reports with the parties and the Court setting forth the trustee’s
efforts to accomplish the divestitures ordered pursuant to this Final Judgment;
provided, however, that to the extent such reports contain information that the
trustee deems confidential, such reports shall not be filed in the public
docket of the Court. Such reports shall include the name, address and telephone
number of each person who, during the preceding month, made an offer to
acquire, expressed an interest in acquiring, entered into negotiations to
acquire, or was contacted or made an inquiry about acquiring, any interest in
the businesses to be divested, and shall describe in detail each contact with
any such person during that period. The trustee shall maintain full records of all
efforts made to divest the businesses to be divested.


 


F.    If the trustee has not accomplished such
divestitures within 90 days after its appointment, the trustee thereupon shall
file promptly with the Court a report setting forth (1) the trustee’s
efforts to accomplish the required divestitures, (2) the reasons, in the
trustee’s judgment, why the required divestitures have not been accomplished,
and (3) the trustee’s recommendations; provided, however, that to the
extent such reports contain information that the trustee deems confidential, such
reports shall not be filed in the public docket of the Court. The trustee shall
at the same time furnish such report to the parties, who shall each have the
right to be heard and to make additional recommendations consistent with the
purpose of the trust. The Court shall enter thereafter such orders as it shall
deem appropriate in order to carry out the purpose of the trust which may, if
necessary, include extending the trust and the term of the trustee’s
appointment by a period requested by OAG.


 


VI.           LIMITATION ON USE RESTRICTIONS


 


For a period of five years from the entry of this Final Judgment,
defendants shall not seek or enforce any contractual provision restricting a
lessor’s right to operate or lease, for use as a theatre, a property in the
District of Columbia that defendants had used as a theatre.


 


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VII.          NOTIFICATION


 


A.   Within two business days following execution
of a definitive agreement, contingent upon compliance with the terms of this
Final Judgment, to effect, in whole or in part, any proposed divestitures
pursuant to Sections IV or V of this Final Judgment, defendants or the trustee,
whichever is then responsible for effecting the divestitures, shall notify OAG
of the proposed divestitures. If the trustee is responsible, it shall similarly
notify defendants. The notice shall set forth the details of the proposed
transaction and list the name, address, and telephone number of each person not
previously identified who offered to, or expressed an interest in or a desire
to, acquire any ownership interest in the businesses to be divested that are
the subject of the binding contract, together with full details of same. Within
ten calendar days of receipt by OAG of notice, OAG may request from defendants,
the proposed Acquirer, or any other third party, additional information concerning
the proposed divestitures and the proposed Acquirer. Defendants and the trustee
shall furnish any additional information requested from them within ten
calendar days of the receipt of the request, unless the parties shall otherwise
agree. Within 30 calendar days after receipt of the notice or within 20
calendar days after OAG has been provided the additional information requested
from defendants, the proposed Acquirer, and any third party, whichever is
later, OAG shall provide written notice to defendants and the trustee, if there
is one, stating whether or not it objects to the proposed divestitures. If OAG
provides written notice to defendants and the trustee that OAG does not object,
then the divestitures may be consummated, subject only to defendants’ limited
right to object to the sale under Section V of this Final Judgment. Absent
written notice that OAG does not object to the proposed Acquirer or upon
objection by OAG, a divestiture proposed under Section IV or Section V
may not be consummated. Upon objection by defendants under the provision in Section V,
a divestiture proposed under Section V shall not be consummated unless
approved by the Court.


 


B.   Until one year after any divestiture required
by this Final Judgment has been completed, defendants shall preserve all
records of all efforts made to preserve the business to be divested and effect
the divestitures.


 


VIII.        RETENTION OF JURISDICTION


 


Jurisdiction is retained by this Court for the purpose of enabling any
of the parties to this Final Judgment to apply to this Court at any time for
such further orders and directions as may be necessary or appropriate for the
construction or carrying out of this Final Judgment, for the modification of
any of the provisions hereof, for the enforcement of compliance herewith, and
for the punishment of any violations hereof.


 


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IX.           TERMINATION


 


Unless this Court grants an extension, this Final Judgment will expire
upon the fifth anniversary of the date of its entry.


 


X.            PUBLIC INTEREST


 


Entry of this Final Judgment is in the public interest.


 


SO ORDERED.


 


 


	
   

  	
   

  
	
   

  	
  United
  States District Court Judge

  



 


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