Exhibit 99.1
Execution Copy
EXHIBIT A TO THE
AGREEMENT AND PLAN OF MERGER
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CONSENT AND VOTING AGREEMENT
by and
among
AMC ENTERTAINMENT INC.,
THE STOCKHOLDERS NAMED HEREIN,
APOLLO MANAGEMENT IV, L.P.
and
APOLLO MANAGEMENT V, L.P.
DATED AS OF JULY 22, 2004
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CONSENT AND VOTING AGREEMENT
CONSENT AND VOTING AGREEMENT, dated as of July 22, 2004 (the
"Agreement"), by and among AMC ENTERTAINMENT INC., a Delaware corporation (the
"Company"), APOLLO INVESTMENT FUND IV, L.P., a Delaware limited partnership
("AIF IV"), APOLLO OVERSEAS PARTNERS IV, L.P., a Cayman Islands exempted
limited partnership ("AOP IV"), APOLLO INVESTMENT FUND V, L.P., a Delaware
limited partnership ("AIF V"), APOLLO OVERSEAS PARTNERS V, L.P., a Cayman
Islands exempted limited partnership ("AOP V"), AP ENTERTAINMENT, LLC, a
Delaware limited liability company ("AP LLC"), APOLLO NETHERLANDS PARTNERS
V(A), L.P., a Cayman Island exempt limited partnership ("AP NP (A)"), APOLLO
NETHERLANDS PARTNERS V(B), L.P., a Cayman Island exempt limited partnership
("AP NP (B)"), APOLLO GERMAN PARTNERS V GmbH & CO. KG, a German corporation
("AP GP") (AIF IV, AOP IV, AIF V, AOP V, AP LLC, AP NP (A), AP NP (B) and AP
GP, collectively, the "Stockholders" and each individually, a "Stockholder"),
APOLLO MANAGEMENT IV, L.P., a Delaware limited partnership, in its capacity as
investment manager to AIF IV and AOP IV ("Apollo IV Management"), APOLLO
MANAGEMENT V, L.P., as Delaware limited partnership, in its capacity as
investment manager to AIF V, AOP V, AP LLC, AP NP (A), AP NP (B) and AP GP
("Apollo V Management" and, together with Apollo IV Management, "Apollo").
WHEREAS, concurrently with the execution of this Agreement,
the Company, Marquee Holdings Inc., a Delaware corporation ("Parent") and
Marquee Inc., a Delaware corporation and a wholly-owned subsidiary of Parent
("Merger Sub") are entering into an Agreement and Plan of Merger (the "Merger
Agreement") (terms used but not defined herein shall have the meanings set
forth in the Merger Agreement) pursuant to which Merger Sub will be merged with
and into the Company (the "Merger");
WHEREAS, as of the date hereof, each Stockholder beneficially
owns (as such term is defined in Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder (the "Exchange Act")) the number of shares of (i) Company Common
Stock set forth opposite such Stockholder's name on Schedule I hereto (such
shares of Company Common Stock, together with any other shares of Company
Common Stock, the voting power over which is acquired by such Stockholder
during the period from and including the date hereof through and including the
date on which this Agreement is terminated in accordance with its terms,
collectively, the "Subject Common Shares") and (ii) Company Preferred Stock set
forth opposite such Stockholder's name on Schedule I hereto (such shares of
Company Preferred Stock, together with any other shares of Company Preferred
Stock, the voting power over which is acquired by such Stockholder during the
period from and including the date hereof through and including the date on
which this Agreement is terminated in accordance with its terms, collectively,
the "Subject Preferred Shares" and, together with the Subject Common Shares,
the "Subject Shares");
WHEREAS, pursuant to that certain Investment Agreement, dated
as of April 19, 2001 by and among the Company, certain of the Stockholders and
Apollo (the "Investment Agreement"), the Stockholders have been granted certain
approval rights with respect to actions proposed to be taken by the Company,
including the right to approve any merger, consolidation or similar transaction
involving the Company; and
WHEREAS, as a condition to their willingness to enter into
the Merger Agreement, the Company and Parent have required that the
Stockholders and Apollo enter into this Agreement and deliver the consent
contemplated hereby on the terms and subject to the conditions of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements contained in
this Agreement and intending to be legally bound, the parties agree as follows:
ARTICLE I
VOTING AND CONSENT MATTERS
Section 1.1 Agreement to Vote. Each Stockholder hereby agrees
that, from and after the date hereof until the termination of this Agreement,
at any duly called meeting of the stockholders of the Company, and in any
action by written consent of the stockholders of the Company, such Stockholder
shall, if a meeting is held, appear at the meeting, in person or by proxy, or
otherwise cause the Subject Common Shares to be counted as present thereat for
purposes of establishing a quorum, and it shall vote or consent (or cause to be
voted or consented), in person or by proxy, all the Subject Common Shares (a)
in favor of the Merger and each of the other transactions and other matters
specifically contemplated by the Merger Agreement, (b) against any action or
agreement submitted for approval of the stockholders of the Company that the
Stockholder is aware would result in a breach of any covenant, representation
or warranty or any other obligation or agreement of the Company or any Company
Subsidiary under the Merger Agreement and (c) except as otherwise agreed in
writing by the Company, against any action, agreement, transaction or proposal
submitted for approval of the stockholders of the Company that the Stockholder
is aware would reasonably be expected to result in any of the conditions to the
Company's obligations under the Merger Agreement not being fulfilled or that is
intended, or would reasonably be expected to prevent, impede, interfere with,
delay or adversely affect the transactions contemplated by the Merger
Agreement. Any vote by such Stockholder that is not in accordance with this
Section 1.1 shall be considered null and void. Such Stockholder shall not enter
into any agreement or understanding with any person or entity prior to the
termination of this Agreement to vote or give instructions in a manner
inconsistent with clauses (a), (b) or (c) of this Section 1.1.
Section 1.2 Consent to Transactions. Apollo hereby agrees
that, concurrently with the execution and delivery of this Agreement and the
Merger Agreement, and subject to the penultimate sentence of this Section 1.2,
it shall execute and deliver to the Company a consent, in the form attached
hereto as Exhibit A (the "Consent"), to the transactions contemplated by the
Merger Agreement for purposes of the "Preferred Stock Approval Rights" granted
to Apollo pursuant to Section 8.1 of the Investment Agreement. Subject to the
penultimate sentence of this Section 1.2, the Consent shall remain in full
force and effect until the termination of this Agreement. The Consent may be
revoked in the event that any of the terms or conditions of the Merger
Agreement as in effect on the date hereof are amended or waived without
Apollo's prior written approval. Such Stockholder shall not enter into any
agreement of understanding with any Person or entity prior to the termination
of this Agreement that is inconsistent with the terms hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders hereby severally represents and
warrants to the Company as follows with respect to itself only:
Section 2.1 Corporate Existence; Authorization. Such
Stockholder is duly organized, validly existing and in good standing (with
respect to jurisdictions that recognize such concept) under the laws of the
jurisdiction of its organization or formation and has all requisite power and
authority to enter into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated by this Agreement. This
Agreement has been duly and validly executed and delivered by such Stockholder
and, assuming due execution and delivery by each of the other parties hereto,
this Agreement constitutes a legal, valid and binding obligation of such
Stockholder enforceable against such Stockholder in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights, and to
general equitable principles.
Section 2.2 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by
such Stockholder does not, and the performance of this Agreement by such
Stockholder will not, (i) conflict with or violate the certificate of
incorporation, limited liability company agreement or equivalent organizational
documents, as the case may be, of such Stockholder, (ii) conflict with or
violate any applicable Law by which any property or asset of such Stockholder
is bound or affected or (iii) result in any breach of, or constitute a default
(or event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien on any Subject Shares
(other than pursuant to this Agreement) pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation of such Stockholder (including any trust agreement,
voting agreement, stockholders agreement or voting trust), except for any such
conflicts, violations, breaches, defaults or other occurrences that would not
prevent or materially delay the ability of such Stockholder to carry out its
obligations under, and to consummate the transactions contemplated by, this
Agreement.
(b) The execution and delivery of this Agreement by
such Stockholder does not, and the performance of this Agreement by such
Stockholder shall not, require any consent, approval, authorization or permit
of, or filing with, or notification to, any Governmental Entity, except where
the failure to obtain such consents, approvals, authorizations or permits, or
to make such filings or notifications, would not prevent or materially delay
the ability of such Stockholder to carry out its obligations under, and to
consummate the transactions contemplated by, this Agreement.
Section 2.3 Ownership of Shares. Such Stockholder is the
record or beneficial owner of, and has good title to, the Subject Shares set
forth opposite its name on Schedule I. Such Stockholder, together with its
affiliates, has sole voting power, and sole power of disposition, with respect
to all of its Subject Shares. The Subject Shares, including any shares of
Company Common Stock issuable on conversion of or in exchange for shares of
Company Preferred Stock, are all the securities of the Company owned, either of
record or beneficially, by such Stockholder as of the date hereof, except with
respect to the right to receive dividends payable "in kind" on shares of
Company Preferred Stock. The Subject Shares owned by such Stockholder are free
and clear of all Liens, other than any Liens created by this Agreement. The
Stockholder has not appointed or granted any proxy inconsistent with this
Agreement, which appointment or grant is still effective, with respect to the
Subject Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each
Stockholder as follows:
Section 3.1 Corporate Authorization. The Company is duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority to enter into and perform
all of its obligations under this Agreement and to consummate the transactions
contemplated by this Agreement. The execution, delivery, and performance of
this Agreement by the Company, the performance of its obligations hereunder and
the consummation by it of the transactions contemplated hereby have been duly
authorized by all requisite action on the part of the Company. This Agreement
has been duly and validly executed and delivered by the Company and, assuming
due execution and delivery by each of the other parties hereto, constitutes a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws of general applicability relating to or affecting creditors'
rights, and to general equitable principles.
Section 3.2 No Conflict; Required Filings and Consents.
Neither the execution and delivery of this Agreement by the Company nor the
consummation by the Company of the transactions contemplated hereby nor
compliance by the Company with any of the provisions hereof shall (a) conflict
with or result in any breach of the Company's certificate of incorporation or
bylaws, (b) result in any breach of, or constitute a default (or event that
with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a Lien pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation of the Company, except for any such conflicts,
violations, breaches, defaults or other occurrences that would not prevent or
materially delay the ability of the Company to carry out its obligations under,
and to consummate the transactions contemplated by, this Agreement. Other than
filings required under the Exchange Act, the execution and delivery of this
Agreement by the Company and the performance of this Agreement by the Company
do not require any filing with, permit, authorization, notification, consent or
approval of, any Governmental Entity.
ARTICLE IV
COVENANTS OF THE STOCKHOLDERS
Each Stockholder severally, but not jointly and severally,
hereby covenants and agrees as follows with respect to itself only:
Section 4.1 Restriction on Transfer of Shares. Such
Stockholder shall not, directly or indirectly: (i) offer for sale, sell
(including short sales), transfer, tender, pledge, encumber, assign or
otherwise dispose of (including by gift) or enter into any contract, option,
derivative, hedging or other arrangement or understanding (including any
profit-sharing arrangement) with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other disposition
of, except in each case for the conversion or exchange of shares of Company
Preferred Stock for shares of Company Common Stock in accordance with Section
5.2, (any of the foregoing, a "Transfer"), any or all of the Subject Shares or
any interest therein, except to any Affiliate of such Stockholder who agrees in
writing to be bound by the terms of this Agreement or Transfers which occur by
operation of law or with the Company's prior written consent, (ii) grant any
proxies or powers of attorney, deposit any of the Subject Shares into a voting
trust or enter into any other voting arrangement or permit to exist any Lien of
any nature whatsoever with respect to the Subject Shares (other than any Liens
created by or arising under this Agreement or existing by operation of Law) or
(iii) commit or agree to take any of the foregoing actions.
Section 4.2 No Solicitation. Each Stockholder agrees that,
from the date of this Agreement until the Effective Time, such Stockholder
shall not, and shall cause its Representatives not to, directly or indirectly
through another Person, (i) solicit, initiate or knowingly encourage (including
by way of furnishing information), or take any other action designed to
facilitate, any inquiries or the making of any proposal that constitutes, or
could reasonably be expected to lead to, an Acquisition Proposal by any Third
Party, (ii) enter into, continue or otherwise participate in any discussions or
negotiations with, or disclose or provide any non-public information or data
relating to the Company or the Company Subsidiaries to, or otherwise afford
access to the properties, books or records of the Company or the Company
Subsidiaries to, any Third Party or any Representatives thereof with respect to
any Acquisition Proposal; provided, however, that nothing herein shall prevent
any Stockholder or any of its Representatives from (x) acting in his or her
capacity as a director of the Company or (y) taking any action described in
clause (ii) of this Section 4.2 relating to any Acquisition Proposal during any
period when the Company and its Representatives are taking any action described
in clause (ii) with respect to such Acquisition Proposal, but only in the case
of this clause (y) to the extent such action is permitted to be taken by the
Company under Section 6.4 of the Merger Agreement. Notwithstanding anything to
the contrary contained herein, in no event shall any action of the Stockholder
or any of its Representatives be considered to violate this Section 4.2 if such
action, if taken by the Company, would not result in a violation of Section 6.4
of the Merger Agreement. Each Stockholder shall, and shall cause its
Representatives to, cease immediately and cause to be terminated any and all
existing discussions, conversations, negotiations and other communications with
any Third Party conducted heretofore with respect to, or that could reasonably
be expected to lead to, an Acquisition Proposal.
Section 4.3 Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to the Subject Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of the Subject Shares shall pass, whether by operation of law or
otherwise, including without limitation the Stockholder's administrators,
successors or receivers.
ARTICLE V
COVENANTS OF THE COMPANY
Section 5.1 FIRPTA. Immediately prior to the Closing, the
Company shall furnish to each of the Stockholders a certification in accordance
with Treasury Regulation Sections 1.897-2(h), 1.1445-2(c), and 1.1445-5, and
otherwise in form and substance reasonably satisfactory to such Stockholder,
certifying that an interest in the Company is not a United States real property
interest because the Company is not and has not been a United States real
property holding corporation (as defined in Section 897(c)(2) of the Code)
during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
The Company shall comply with the notice requirements described in Treasury
Regulation Section 1.897-2(h)(2) so that the Stockholders may rely on such
certification.
Section 5.2 Waiver of Restrictions on Preferred Stock
Conversion. Immediately prior to the Effective Time and subject to the prior
satisfaction or waiver of the conditions set forth in Article VII of the Merger
Agreement, the Company shall grant to the Stockholders and Apollo in accordance
with Section 7.7 of the Apollo Standstill Agreement a waiver of the
restrictions set forth in Section 5.2(a) of the Apollo Standstill Agreement on
the conversion of the shares of Company Preferred Stock owned by the
Stockholders into shares of Company Common Stock, which waiver shall allow the
Stockholders to convert all shares of Company Preferred Stock owned by them
into shares of Company Common Stock immediately prior to the Closing in
accordance with the terms set forth in the Company Preferred Stock Certificate
of Designations.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Termination. This Agreement shall automatically
terminate, and none of the Company or any Stockholder shall have any rights or
obligations hereunder and this Agreement shall become null and void and have no
further effect, upon the earliest to occur of (a) the mutual consent of all of
the parties hereto, (b) the Effective Time, (c) a Company Subsequent
Determination and (d) the date of termination of the Merger Agreement in
accordance with its terms. In addition to the foregoing, the Apollo may in its
absolute discretion terminate this Agreement by notice to such effect delivered
to the parties to the Merger Agreement, in the event that (i) any amendment to
the Merger Agreement is executed or (ii) the Company shall grant a waiver of
any of the terms, conditions or other provisions of the Merger Agreement, in
either case, without the prior written consent of Apollo (and, for the
avoidance of doubt, Sections 1.1 and 1.2 shall not apply to any such proposed
amendment or waiver which has not been consented to in writing by Apollo). In
the event there is a Company Stockholders' Meeting (as such term is defined in
the Merger Agreement) following a termination of this Agreement pursuant to
clause (c) of this Section 6.1, Apollo shall inform the Company in writing not
less than 10 days prior to the Company Stockholders' Meeting of its intent
(which shall be within Apollo's sole discretion) to consent or not consent to
the Merger Agreement and the transactions contemplated thereby.
Section 6.2 Agreements with respect to Preferred Stock
Approval Rights. Except as provided herein, each of the Stockholders and Apollo
hereby agree not to enter into any agreement, arrangement or understanding with
any Person (i) limiting Apollo's discretion with respect to the exercise of
Preferred Stock Approval Rights granted under the Investment Agreement or (ii)
granting Apollo's consent to any Company Alternative Transaction for purposes
of the "Preferred Stock Approval Rights" granted to Apollo pursuant to Section
8.1 of the Investment Agreement.
Section 6.3 Non-Survival of Representations and Warranties.
None of the representations and warranties in this Agreement shall survive the
termination of this Agreement. This Section 6.3 shall not limit any covenant or
agreement of the parties contained herein which by its terms contemplates
performance after the termination of this Agreement.
Section 6.4 Notices. Any notices or other communications
required or permitted under, or otherwise in connection with this Agreement
shall be in writing and shall be deemed to have been duly given when delivered
in person or on receipt after dispatch by registered or certified mail, postage
prepaid, addressed, or on receipt if transmitted by national overnight courier,
in each case as follows:
If to the Company, addressed to it at:
AMC Entertainment Inc.
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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If to Apollo or to any Apollo Investor, to:
c/o Apollo Management, L.P.
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Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Section 6.5 Headings. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 6.6 Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule
of Law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are
fulfilled to the extent possible.
Section 6.7 Entire Agreement. This Agreement constitutes the
entire agreement, and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
Section 6.8 Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto, in whole or in part (whether by operation of Law or otherwise),
without the prior written consent of the other parties, and any attempt to make
any such assignment without such consent shall be null and void.
Section 6.9 Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto and their
respective successors and assigns, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
Section 6.10 Mutual Drafting. This Agreement shall be
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing this Agreement to be
drafted.
Section 6.11 Governing Law; Consent to Jurisdiction; Waiver
of Trial by Jury.
(a) This Agreement and the transactions contemplated
hereby, and all disputes between the parties under or related to the Agreement,
whether in Contract, tort or otherwise, shall be governed by and construed in
accordance with the Laws of the State of Delaware, applicable to contracts
executed in and to be performed entirely within the State.
(b) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of the Court of Chancery of the State of Delaware in any action or
proceeding arising out of or relating to this Agreement or the agreements
delivered in connection herewith or the transactions contemplated hereby or
thereby or for recognition or enforcement of any judgment relating thereto, and
each of the parties hereby irrevocably and unconditionally (i) agrees not to
commence any such action or proceeding except in such court, (ii) agrees that
any claim in respect of any such action or proceeding may be heard and
determined in such court, (iii) waives, to the fullest extent it may legally
and effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such action or proceeding in such court, and (iv)
waives, to the fullest extent permitted by Law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in such court. Each of
the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by Law. Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 6.3. Nothing in this Agreement shall affect the right of any
party to this Agreement to serve process in any other manner permitted by Law.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT MAY INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF
THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I)
IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (II) IT
MAKES SUCH WAIVERS VOLUNTARILY, AND (III) IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 6.11(c).
Section 6.12 Amendment: Waiver. No provision of this
Agreement may be waived unless in writing signed by all of the parties to this
Agreement, and the waiver of any one provision of this Agreement shall not be
deemed to be a waiver of any other provision. This Agreement may be amended,
supplemented or otherwise modified only by a written agreement executed by all
of the parties to this Agreement. With respect to the Company, approval of any
amendment, supplement or modification will be given and effective only upon
approval of the Company Independent Committee, and, with respect to amendments,
supplements or modifications of Section 5.2 hereto, the approval of the
"Requisite Independent Directors" (as such term is defined in the Apollo
Standstill Agreement).
Section 6.13 Further Assurances. From time to time, at the
other party's request and without further consideration, each party hereto
shall execute and deliver such additional documents and take all such further
action as may be reasonably necessary to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
Section 6.14 Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any of the provisions of this
Agreement were not to be performed in accordance with the terms hereof and that
the parties shall be entitled to seek specific performance of the terms hereof
in addition to any other remedies at Law or in equity.
Section 6.15 Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, a duly authorized representative of each
of the parties hereto have executed this Agreement as of the date first above
written.
AMC ENTERTAINMENT INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
Title:
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors IV, L.P.,
its General Partner
By: Apollo Capital Management IV, Inc.
its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
AP ENTERTAINMENT, LLC
By: Apollo Management V, L.P.,
its Manager
By: AIF V Management, Inc.
its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors IV, L.P.,
its General Partner
By: Apollo Capital Management IV, Inc.
its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors IV, L.P.,
its General Partner
By: Apollo Capital Management IV, Inc.
its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
APOLLO INVESTMENT FUND V, L.P.
By: Apollo Advisors V, L.P.,
its General Partner
By: Apollo Capital Management V, Inc.
its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
APOLLO OVERSEAS PARTNERS V, L.P.
By: Apollo Advisors V, L.P.,
its General Partner
By: Apollo Capital Management V, Inc.
its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
APOLLO NETHERLANDS PARTNERS V(A), L.P.
By: Apollo Advisors V, L.P.,
its General Partner
By: Apollo Capital Management V, Inc.
its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
APOLLO NETHERLANDS PARTNERS V(B), L.P.
By: Apollo Advisors V, L.P.,
its General Partner
By: Apollo Capital Management V, Inc.
its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
APOLLO GERMAN PARTNERS V GMBH & CO KG
By: Apollo Advisors V, L.P.,
its General Partner
By: Apollo Capital Management V, Inc.
its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
APOLLO MANAGEMENT IV, L.P.
By: AIF Management, Inc.,
its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
APOLLO MANAGEMENT V, L.P.
By: AIF Management, Inc.,
its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
Schedule I
Shares of Company Shares of Company
Name of Record Owner Preferred Stock Common Stock
Apollo Investment Fund IV, LP 128,673 157,497
Apollo Overseas Partners IV, LP 7,152 8,761
Apollo Investment Fund V, LP 116,557
Apollo Overseas Partners V, LP 15,266
Apollo Netherlands Partners V (A), LP 1,595
Apollo Netherlands Partners V (B), LP 1,125
Apollo German Partners V GmbH & Co KG 1,273
AP Entertainment, LLC 15,837
Total 287,478 166,258
Exhibit A
APOLLO CONSENT
July 22, 2004
Reference is made to (i) that certain Investment Agreement, dated as
of April 19, 2001 (the "Investment Agreement"), by and among Aries Inc. (the
"Company"), the Apollo Purchasers named therein, Apollo Management IV, L.P., a
Delaware limited partnership ("AM IV") and Apollo Management V, L.P., a
Delaware limited partnership ("AM V" and, together with AM IV, "Apollo") and
(ii) that certain Consent and Voting Agreement, dated as of the date hereof, by
and among the Company, the stockholders named therein (the "Stockholders") and
Apollo (the "Voting Agreement"). Defined terms used but not defined herein
shall have the meaning ascribed thereto in the Voting Agreement.
Apollo hereby consents (for purposes of Section 8.1 of the Investment
Agreement) to the transactions contemplated by that certain Agreement and Plan
of Merger, dated as of July 22, 2004, by and among the Company, Marquee
Holdings Inc., a Delaware corporation ("Parent") and Marquee Inc., a Delaware
corporation and a wholly-owned subsidiary of Parent (the "Merger Agreement"),
including without limitation the Merger; provided, in each case that the Merger
is consummated in accordance with the terms and conditions set forth in the
Merger Agreement as in effect on the date hereof, or in the event any term or
condition of such Merger Agreement is amended or waived, Apollo shall have
given its prior written approval to such amendment or waiver (and, for the
avoidance of doubt, Sections 1.1 and 1.2 of the Voting Agreement shall not
apply to any such proposed amendment or waiver which has not been consented to
in writing by Apollo).
The consent granted hereby shall automatically terminate and be of no
further force and effect at such time as the Voting Agreement shall terminate
in accordance with the provisions of Section 6.1 thereof.
APOLLO MANAGEMENT IV, L.P.
By: AIF Management, Inc., its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
APOLLO MANAGEMENT V, L.P.
By: AIF Management, Inc., its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title: