HOLD SEPERATE STIPULATION AND ORDER, DATED DECEMBER 21,2005



 Exhibit 10.2 
  

									
	 	  	RECEIVED	  	FILED	  	 	  	ENTERED
	 	  	 	  	LODGED	  	 	  	RECEIVED
	 	  	DEC 21, 2005	  	*	  	DEC 21, 2005	  	              *
					
	 	  	 BADGLEY-MULLINS LAW
 GROUP
	  	 	  	AT SEATTLE	  	 
	 	  	 	  	CLERK U.S. DISTRICT COURT
	 	  	 	  	WESTERN DISTRICT OF WASHINGTON
	 	  	 	  	    BY	  	 	  	 
	 	  	 	  	 	  	 	  	DEPUTY

  
 The Honorable
                        
  
 UNITED STATES DISTRICT COURT 
 WESTERN
DISTRICT OF WASHINGTON 
 AT SEATTLE 
  

					
	 STATE OF WASHINGTON,
	  	NO. CV05-2111	  	 
		
	 Plaintiff,
	  	 
			
	        v.	  	HOLD SEPARATE	  	 
	 	  	STIPULATION AND ORDER	  	 
			
	 MARQUEE HOLDINGS, INC.
	  	 	  	 
			
	 and
	  	 	  	 
			
	 LCE HOLDINGS, INC.,
	  	 	  	 
		
	 Defendants.
	  	 

  
 HOLD SEPARATE
STIPULATION AND ORDER 
  
 It is hereby stipulated by and
between the undersigned parties, subject to approval and entry by this Court, that: 
  

			
	HOLD SEPARATE STIPULATION AND ORDER	  	 ATTORNEY GENERAL OF WASHINGTON
 900 Fourth Avenue, Suite 2000


  

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 I. DEFINITIONS 
  
 As used in this Consent Decree: 
  
 A. “Acquirer” means the entity to whom defendants divest the Theater Assets. 
  
 B. “AMC” means defendant Marquee Holdings, Inc., a Delaware corporation with its headquarters in Kansas
City, Missouri, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees. 
  
 C. “Loews” means defendant LCE Holdings, Inc., a Delaware
corporation with its headquarters in New York City, New York, its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships and joint ventures, and their directors, officers, managers, agents, and employees.

  
 D. “Landlord Consent” means any contractual
approval or consent that the landlord or owner of one or more of the Theater Assets, or the property on which one or more of the Theater Assets is situated, must grant prior to the transfer of one of the Theater Assets to an Acquirer. 
  
 E. “Theater Assets” means the first-run, commercial motion
picture theater business currently operating under the following name and at the following location: Meridian 16, at 1501 7th Ave. Seattle, WA. The term “Theater Assets” includes: 
  
 (1) all tangible assets that comprise the first-run, commercial motion
picture theater business including all equipment, fixed assets and fixtures, personal property, inventory, office furniture, materials, supplies, and other tangible property and all assets used in connection with 
  

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the Theater Assets; all licenses, permits and authorizations issued by any governmental organization relating to the Theater Assets; all contracts,
agreements, leases, commitments, certifications, and understandings, relating to the Theater Assets, including supply agreements; all customer lists, contracts, accounts, and credit records; all repair and performance records and all other records
relating to the Theater Assets; 
  
 (2) all intangible assets
used in the development, production, servicing and sale of Theater Assets, including, but not limited to all licenses and sublicenses, intellectual property, technical information, computer software (except defendants’ proprietary software) and
related documentation, know-how, drawings, blueprints, designs, specifications for materials, specifications for parts and devices, quality assurance and control procedures, all technical manuals and information defendants provide to their own
employees, customers, suppliers, agents or licensees, and all research data relating to the Theater Assets; provided, however, that this term does not include (a) any right to use or interest in defendants’ copyrights, trademarks, trade
names, service marks or service names, or (b) assets that the defendants do not own and are not legally able to transfer. 
  
 II. OBJECTIVES 
  
 The Consent Decree filed in this civil action is meant to ensure the Defendants’ prompt divestiture of the Theater Assets for the purpose of
establishing viable competitors in the exhibition of first-run, commercial motion pictures in order to remedy the effects that the State of Washington alleges would otherwise result from AMC’s acquisition of Loews. This Hold Separate
Stipulation and Order ensures, prior to such divestiture, that (1) the Loews Theater Assets will remain independent, economically viable and ongoing business concerns that will 

  

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remain independent and uninfluenced by AMC, (2) that the AMC Theater Assets will remain economically viable and ongoing business concerns, and
(3) that competition in the various markets in which these theaters are located is maintained and not diminished during the pendency of the ordered divestiture. 
  
 III. JURISDICTION AND VENUE. 
  

This 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 Western District of Washington. 
  
 IV. COMPLIANCE WITH AND ENTRY OF CONSENT DECREE 
  
 A. The parties stipulate that a Consent Decree in the form hereto attached as Exhibit A, may be filed with and entered by this Court, upon the motion of any party or upon this Court’s own motion and without further notice to
any party or other proceedings, provided that the State of Washington has not withdrawn its consent, which it may do at any time before the entry of the proposed Consent Decree by serving notice thereof on Defendants and by filing that notice with
this Court. 
  
 B. Defendants shall abide by and comply with
the provisions of the proposed Consent Decree, pending the entry of the Consent Decree by this Court, or until expiration of time for all appeals of any court ruling declining entry of the proposed Consent Decree. From the date of the signing of
this Hold Separate Stipulation and Order by the parties, the Defendants shall comply with all the terms and provisions of the proposed Consent Decree as though the same were in full force and effect as an order of this Court. 
  

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 C. Defendants shall not consummate the transaction sought to be enjoined by the Complaint herein
before the Court has signed this Hold Separate Stipulation and Order. 
  
 D. This Hold Separate Stipulation and Order shall apply with equal force and effect to any amended proposed Consent Decree agreed upon in writing by the parties and submitted to this Court. 
  
 E. In the event that (1) the proposed Consent Decree is not entered
pursuant to this Hold Separate Stipulation and Order, the time has expired for all appeals of any court ruling declining entry of the proposed Consent Decree, and this Court has not otherwise ordered continued compliance with the terms and
provisions of the proposed Consent Decree, or (2) the State of Washington has withdrawn its consent, as provided in Section IV(A) above, then the parties are released from all further obligations under this Hold Separate Stipulation
and Order, and the making of this Hold Separate Stipulation and Order shall be without prejudice to any party in this or any other proceeding. 
  
 F. Defendants represent that the divestiture ordered in the proposed Consent Decree can and will be made, and that the Defendants will later raise no
claim of mistake, hardship, or difficulty of compliance as grounds for asking this Court to modify any of the provisions contained therein. 
  
 V. HOLD SEPARATE PROVISIONS 
  
 Until each divestiture required by the Consent Decree has been accomplished: 
  
 A. Defendants shall, except as is necessary to carry out their obligations under this Hold Separate Stipulation and
Order and the proposed Consent Decree, or to comply with 
  

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other legal obligations, take all steps necessary to ensure that (1) the Loews Theater Assets will be maintained and operated as independent, ongoing,
economically viable and active competitors in the exhibition of first-run, commercial motion pictures; (2) the AMC Theater Assets will be maintained and operated as ongoing, economically viable and active competitors in the exhibition of
first-run, commercial motion pictures; (3) the management of the Loews Theater Assets will not be influenced by AMC; and (4) the books, records, competitively sensitive sales, marketing, and pricing information, and decision making
associated with Loews Theater Assets will be kept separate and apart from AMC’s other operations. Within twenty (20) days after the entry of the Hold Separate Stipulation and Order, the Defendants will inform the State of Washington of the
steps taken to comply with the Hold Separate Stipulation and Order. 
  
 B. Defendants shall use all reasonable efforts to maintain and increase the sales, and revenue of the Theater Assets, and shall maintain research, design, product and service improvement, promotional, advertising, sales, technical
assistance, marketing, and merchandising support for the Theater Assets at 2005 or previously approved 2006 levels, whichever arc higher. 
  
 C. Defendants shall provide sufficient working capital and lines and sources of credit to continue to maintain the Theater Assets as economically
viable and competitive, ongoing businesses, consistent with the requirements of Sections V(A) and V(B). 
  
 D. Defendants shall take all steps necessary to ensure that the Theater Assets are fully maintained in operable condition at no less than current
capacity, and shall maintain and adhere to normal product and Service improvement, upgrade, repair, and maintenance schedules for the Theater Assets. 
  

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 E. Defendants shall not, except as part of a divestiture approved by the State of Washington
accordance with the terms of the proposed Consent Decree, remove, sell, lease, assign, transfer, pledge, or otherwise dispose of any of the Theater Assets. 
  
 F. Defendants shall maintain, in accordance with sound accounting principles, separate, accurate and complete financial ledgers, books, and records
that report on a periodic basis, such as the last business day of every month, consistent with past practices, the assets, liabilities, expenses, revenues, and income of the Theater Assets. 
  
 G. Defendants shall take no action that would jeopardize, delay, or
impede the sale of the Theater Assets. 
  
 H. Defendants
shall not hire, transfer, terminate, or reduce the salary agreements of any employee whose primary responsibilities relate to the Theater Assets, except for transfer bids initiated by employees pursuant to the Defendants’ regular, established
job-posting policy or as is otherwise consistent with this Hold Separate Stipulation and Order. Defendants shall provide the State of Washington with ten (10) calendar days notice of any such transfer. 
  
 I. Within ten (10) days of the entry of this Hold Separate
Stipulation and Order the Defendants shall appoint, subject to the approval of the State of Washington, a person or persons to oversee the Theater Assets, respectively, who will also be responsible for the Defendants’ compliance with this
section. This person or persons shall have complete managerial responsibility for the Theater Assets, respectively, subject to the provisions of the 

  

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Consent Decree. In the event that any such person is unable to perform his or her duties the Defendants shall appoint, subject to the approval of the State
of Washington, a replacement within ten (10) working days. Should the Defendants fail to appoint a replacement acceptable to the State of Washington within this time period, the State of Washington shall appoint a replacement. 
  
 J. Defendants shall take no action that would interfere with the ability
of any trustee appointed pursuant to the Consent Decree to complete the divestiture[s] required by the Consent Decree to Acquirers acceptable to the State of Washington. 
  
 K. This Hold Separate Stipulation and Order shall remain in effect until consummation of the divestiture required by
the proposed Consent Decree or until further order of the Court. 
  
 VI. ORDER 
  
 It is SO ORDERED
this      day of                      2005. 
  

	
	  


	UNITED STATES DISTRICT JUDGE


  
 Respectfully submitted by: 
  
 ROB
MCKENNA 
 Attorney General of Washington State 
  
 TINA E. KONDO, 
 Senior Assistant Attorney General 
 Antitrust Division Chief 
  

	
	 /s/ Mark O. Brevard


	MARK O. BREVARD, WSBA #21228
	Assistant Attorney General
	900 Fourth Avenue Suite 2000
	Seattle, WA 98164
	(206) 464-7030
	Dated: 12-21-05

  

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 FOR DEFENDANT AMC: 
  

	
	 /s/ Duncan C. Turner


	DUNCAN C. TURNER, WSBA #20597
	Counsel for Defendant
	 Badgley Mullins Law Group PLLC
 701 Fifth Avenue,
Suite 4750
 Seattle, WA 98104

	Tel: (206) 340-5907
	Fax: (206) 621-6566

  

	
	 /s/ Damian G. Didden


	DAMIAN G. DIDDEN (Pro Hac Vice)
	ILENE KNABLE GOTTS (Pro Hac Vice)
	Wachtell, Lipton, Rosen & Katz
	51 West 52nd Street
	New York, NY 10019
	Tel: (212) 403-1113
	Fax: (212) 403-2113

  

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 FOR DEFENDANT LOEWS: 
  

	
	 /s/ Ramona M. Emerson


	RAMONA M. EMERSON, WSBA #20956
	Counsel for Defendant
	Preston Gates & Ellis LLP
	925 Fourth Avenue
	Suite 2900
	Seattle, WA 98104-1158
	Tel: (206) 370-6748
	Fax: (206) 370-6058
	Dated: 12/20/05

  

	
	 /s/ Deborah L. Feinstein


	DEBORAH L. FEINSTEIN (Pro Hac Vice)
	Counsel for Defendant
	Arnold & Porter LLP
	555 Twelfth Street, NW
	Washington, DC 20004
	Tel: (202) 942-5015
	Fax: (202) 942-5999
	Dated: Dec. 19, 2005

  

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