FIRST AMENDMENT TO AMENDED AND RESTATED EXHIBITOR SERVICES AGREEMENT

 

 

Exhibit 10.1

FINAL

 

NOTE: CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. “[***]” INDICATES THAT INFORMATION HAS BEEN REDACTED.

 

FIRST AMENDMENT

TO

AMENDED AND RESTATED EXHIBITOR SERVICES AGREEMENT

 

This First Amendment to Amended and Restated Exhibitor Services Agreement (this “Amendment”), dated September 17, 2019 (the “Amendment Effective Date”), is by and between National CineMedia, LLC (“LLC”) and Cinemark USA, Inc. (“Cinemark”). Capitalized terms used but not defined herein shall have the respective meanings given to them in the Amended and Restated Exhibitor Services Agreement between LLC and Cinemark, dated as of February 13, 2007 and amended and restated as of December 26, 2013 (the “ESA”).

WHEREAS, the Parties desire to amend the ESA; and

WHEREAS, the Board of Directors of National CineMedia, Inc. (“NCM Parent”) and the Transaction Review Committee of NCM Parent have deemed this Amendment to be in the best interest of NCM Parent and its shareholders.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and conditions set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

 

 

“Aggregate Post-Showtime Revenue” means, for the applicable measurement period, the total revenue, in the form of cash and non-cash consideration, payable to LLC for Advertising Services displayed in any Post-Showtime Inventory, excluding revenue  payable to LLC related to (i) Event Sponsorships, (ii) Advertising Services provided to third parties that are not Founding Members, (iii) Advertising Services provided to Founding Members outside the provisions of this Agreement pursuant to a written agreement between LLC and such Founding Members, (iv) Inventory displayed prior to Showtime, and (v) Trailer Pod Inventory.

 

---

 

“Aggregate Trailer Pod Revenue” means, for the applicable measurement period, the total revenue, in the form of cash, payable to LLC for Advertising Services displayed in any Trailer Pod Inventory, excluding revenue payable to LLC related to (i) Event Sponsorships, (ii) Advertising Services provided to third parties that are not Founding Members, (iii) Advertising Services provided to Founding Members outside the provisions of this Agreement pursuant to a written agreement between LLC and such Founding Members, (iv) Inventory displayed prior to Showtime, and (v) Post-Showtime Inventory.

 

[***].

“Beverage Slot” means the Inventory sold to Cinemark pursuant to Section 4.06(a).

“Cinemark Pro-Rated Platinum Revenue Minimum” has the meaning assigned to it in Schedule 1.

“Co-Branded Slot” has the meaning assigned to it in Section 4.06(a).

“Exhibitor” means Cinemark or any other motion picture theatre exhibitor which participates in LLC’s Advertising Services.

[***].

“Platinum Contract Year” means the time period of November 1 of each year to October 31 of the following year.

“Platinum Revenue Minimum” has the meaning assigned to it in Section 4.01(b)(i)(B)(I)(8)(ii).

“Platinum Spot” has the meaning assigned to it in Section 4.01(b)(i)(B)(I)(5).

“Post-Showtime Content Revenue” has the meaning assigned to it in Section 4.03A.

“Post-Showtime Inventory” has the meaning assigned to it in Section 4.01(b)(i)(B)(I)(4).

“Post-Showtime Theatre Access Fees” has the meaning assigned to it in Schedule 1.

“Pre-Feature Closing” has the meaning assigned to it in Section 4.05(a).

“Pre-Showtime Reduction” has the meaning assigned to it in Section 4.01(b)(i)(B)(I)(2).

“Pre-Showtime Trailer” is a Trailer up to two and a half (2.5) minutes in length to be displayed by LLC, at Cinemark’s option, on Cinemark’s behalf in the Pre-Feature Program beginning approximately six (6) minutes prior to Showtime and ending approximately three and a half (3.5) minutes prior to Showtime.

 

---

 

“Trailer Pod Fees” has the meaning assigned to it in Section 2.05(b)(i)(C).

“Trailer Pod Inventory” means, collectively, the Platinum Spot [***].

“Trailer Position” means a specified Inventory slot directly preceding the applicable Trailer. For example, “Third Trailer Position” means a slot directly preceding the third Trailer prior to the feature film.

[***].

 

“Aggregate Advertising Revenue” means, for the applicable measurement period, the total revenue, in the form of cash and non-cash consideration, payable to LLC for Advertising Services, excluding revenue payable to LLC related to (i) Event Sponsorships, (ii) Advertising Services provided to third parties that are not Founding Members, (iii) Advertising Services provided to Founding Members outside the provisions of this Agreement pursuant to a written agreement between LLC and such Founding Members, (iv) Post-Showtime Inventory, and (v) Trailer Pod Inventory.

“Beverage Agreement” means  the   Marketing,   Advertising   and   Brand   Presence Agreement by and between Coca-Cola North America, a division of The Coca-Cola Company, and Cinemark, dated as of January 1, 2009 and all exhibits and amendments  thereto which is in effect on the effective date of the First Amendment to the Agreement, as such agreement may be amended from time to time, and any subsequent agreements entered into by Cinemark and  its  beverage  concessionaires  at  the  expiration  or  termination  of  the  agreement referenced above.

 

“Pre-Feature Program” means a program of digital content of between twenty (20) and thirty (30) minutes in length that is distributed by LLC through the Digital Content Network for exhibition in Digitized Theatres prior to and/or after Showtime (as further described in Section 4.01(b)) of a feature film or other programming or event (other than a Digital Programming Event) or that is distributed non-digitally by some other means, including DVD, for exhibition prior to and/or after Showtime of a feature film or other programming or event (other than a Digital Programming Event) in Non-Digitized Theatres. For the avoidance of doubt, the definition of Pre-Feature Program shall not include any Digital Programming Event Pre-Feature Program.

 

---

 

 

“Trailer” means a promotion secured by Cinemark, directly or indirectly, for a feature film or other programming, other than a Digital Programming Event, that is exhibited in the Theatres either as the Pre-Showtime Trailer or after Showtime.

 

(b)Fees: Theatre Access Fees, Post-Showtime Theatre Access Fees and Trailer Pod Fees.

 

(i)Calculation.

 

(A)Theatre Access Fees. In consideration for utilization of the Theatres pre-Showtime pursuant to the terms hereof, LLC shall calculate and Cinemark shall be entitled to receive a Theatre Access Fee, as set forth in Schedule 1, which shall be paid based on Cinemark Attendance for the relevant fiscal month in which LLC provides the Advertising Services and number of Digital Screens during the fiscal month in which LLC provides the Advertising Services (calculated as the average between the number of Digital Screens on the last day of the fiscal month preceding the relevant fiscal month in which LLC provides the Advertising Services and the last day of the fiscal month in which LLC provides the Advertising Services), and which shall include the amount of 4.03 Revenue allocated to Cinemark for the same fiscal month.

 

(B)Post-Showtime Theatre Access Fees. In consideration for utilization of the Theatres post-Showtime pursuant to the terms hereof (other than for [***] Platinum Spots), LLC shall calculate and Cinemark shall be entitled to receive Post-Showtime Theatre Access Fees as set forth in Schedule 1, which shall be paid based on Cinemark Attendance for the relevant fiscal month in which LLC provides the Post-Showtime Inventory, and which shall include the amount of Post-Showtime Content Revenue allocated to Cinemark for the same fiscal month.  For the avoidance of doubt, the Parties agree that the Post-Showtime Theatre Access Fees for the relevant fiscal month are owed to Cinemark even if the amount of Aggregate Post-Showtime Revenue for the same fiscal month is zero dollars ($0).

 

(C)Trailer Pod Fee. In consideration for the utilization of the Theatres post-Showtime for [***] Platinum Spots pursuant to the terms hereof, LLC shall calculate and Cinemark shall be entitled to receive twenty-five (25%) of all revenue generated by LLC from the actual display of [***] Platinum Spots in the Theatres (as more particularly calculated in Schedule 1, the “Trailer Pod Fees”).

 

 

---

 

(ii)Payment. LLC shall pay Cinemark its Theatre Access Fees, Post-Showtime Theatre Access Fees, [***], and Trailer Pod Fees, as applicable, on or before the last day of LLC’s fiscal month following the fiscal month in which the applicable Advertising Services are provided by LLC; provided that Cinemark has, by the fourteenth (14th) day of LLC’s fiscal month following the fiscal month in which Advertising Services are provided by LLC, given LLC the data regarding attendance and number of Digital Screens necessary for LLC to calculate the Theatre Access Fees, the Post-Showtime Theatre Access Fees, [***], and the Trailer Pod Fees. If Cinemark has not, by the fourteenth (14th) day of LLC’s fiscal month following the fiscal month in which Advertising Services are provided by LLC, given LLC the data regarding attendance and number of Digital Screens necessary for LLC to calculate the Theatre Access Fee, Post-Showtime Theatre Access Fee, [***], or Trailer Pod Fee, the due date of the payment for the relevant fee for which data has not been provided shall be extended by one day for each day that Cinemark is late in providing such data. LLC shall provide Cinemark with a detailed report of the calculation of the Theatre Access Fees, Post-Showtime Theatre Access Fees, [***], and Trailer Pod Fees, pursuant to Schedule 1, which report shall accompany each such payment.

 

 

(i)Pre-Feature Program.

 

(A)Generally. The Pre-Feature Program shall consist of the following elements: (I) commercial advertising; (II) promotions for the Cinemark brand (including the Brand and Branded Slots), Concessions sold and services used by Cinemark and other products and services in accordance with Section 4.05; (III) interstitial content, including the Pre-Feature Closing; (IV) subject to Section 4.01(b)(i)(B)(I)(1), the Pre-Showtime Trailer; and (V) other entertainment programming content which, while promotional of businesses or products, shall be primarily entertaining, educational or informational in nature, rather than commercially inspired. Additionally, only to the extent required by the terms of the Alternative Content Services Agreement and subject to the limitations set forth therein, Event Sponsorships and promotions for Digital Programming Events may be included in the Pre-Feature Program.

 

(B)Pre-Showtime and Post-Showtime Allocations.

 

(I)Beginning on November 1, 2019:

 

 

---

 

 

 

 

 

 

 

 

 

(ii) If NCM sells a Platinum Spot (whether a sixty second (:60)  spot or a thirty second (:30) spot) in all Exhibitor theatres (i.e. all of LLC’s network of Exhibitors) across all Play Lists, then the Aggregate Trailer Pod Revenue specific to the Platinum Spot displayed in all Exhibitor theatres is expected (on an annualized basis, using a Platinum Contract

 

---

 

Year)  to be [***] dollars ($[***]) (the “Platinum Revenue Minimum”) and, as applied to Cinemark, shall be pro-rated based on the annual Cinemark Attendance (as defined in Schedule 1) as a percentage of all aggregate Exhibitor attendance for such period. Notwithstanding the foregoing, in the event that the Platinum Spot (whether a sixty second (:60) spot or a thirty second (:30) spot) is sold in less than all Exhibitor theatres (i.e. all of LLC’s network of Exhibitors) or less than across all Play Lists, then the amount of the Platinum Revenue Minimum in respect to such Platinum Spot, as applied to Cinemark, shall be the Cinemark Pro-Rated Platinum Revenue Minimum (as defined in Schedule 1).

 

 

 

 

 

 

---

 

 

(II)[***].

 

 

 

 

Section 4.03A Post-Showtime and Trailer Pod Content Standards. The Parties agree that (unless mutually agreed by the Parties with respect to clauses (i), (iii), (iv), (v) or (vi)) all content within the Post-Showtime Inventory or the Trailer Pod Inventory will not contain content or other material that: (i) has received, or had it been rated would have received, an MPAA “X” or “NC-17” rating (or the equivalent); (ii) promotes illegal activity; (iii) promotes the use of tobacco, sexual aids, birth control, firearms, weapons or similar products; (iv) promotes alcohol, except prior to “R”-rated films in the auditorium; (v) constitutes religious advertising (except on a local basis, exhibiting time and location for local church services); (vi) constitutes political advertising or promotes gambling; (vii) promotes theatres, theatre circuits or other entities that are competitive with Cinemark or LLC; (viii) would violate any of Cinemark’s Beverage Agreements or the exclusive contractual relationships identified in the Specification Documentation (including renewals and extensions of the foregoing, but excluding any amendments or modifications thereto as such relate to such content standards) and any subsequent exclusive arrangement entered into by LLC with respect to the Theatres; or (ix) otherwise reflects negatively on Cinemark or adversely affects Cinemark’s attendance as determined in Cinemark’s reasonable discretion. Cinemark may, without liability, breach or otherwise, prevent and/or take any other actions with respect to the use or distribution of content that violates the foregoing standards; provided, that with respect to Section 4.03A(ix), Cinemark may opt out of such content in Post-Showtime Inventory or the Trailer Pod Inventory only with respect to Theatres in the geographic locations identified, which may include all of Cinemark’s Theatres. To the extent Post-Showtime Inventory or Trailer Pod Inventory is displayed using the Digital Content Service, if either the Post-Showtime Inventory or Trailer Pod Inventory contains any content that violates the foregoing standards, LLC must remove such content as soon as reasonably practical, but no later than within twenty-four (24) hours of Cinemark notifying LLC of such violation. If LLC fails to

 

---

 

remove such content within such twenty-four (24)-hour period, Cinemark may discontinue the Digital Content Service in such auditoriums where such content is shown until the violating content is removed and shall have no liability for such discontinuation. To the extent the Post-Showtime Inventory or Trailer Pod Inventory is displayed using Cinemark’s equipment and contains any content that violates the foregoing standards, Cinemark may remove such content after notifying LLC of such violation and shall have no liability for such discontinuation.  If any Founding Member does not agree to exhibit any content of the Advertising Services subject to Section 4.03A(i), (iii), (iv), (v) or (vi), then LLC shall apply any revenue it is entitled to receive from such Post-Showtime Inventory (“Post-Showtime Content Revenue”) to adjust payments of the Post-Showtime Theatre Access Fee as set forth in Schedule 1.

 

The interstitial messaging shall include a Pre-Feature Program introduction and a “Pre-Feature Closing” containing content branded with the Cinemark Marks. The Pre-Feature Closing shall be displayed after Showtime, be no more than thirty (30) seconds in length, and include content branded with the marks of Cinemark’s beverage concessionaire.

 

Each reference in Section 4.05(c) to “of the Play List” is hereby deleted and replaced with the following: “prior to Showtime.”

 

 

 

“For the avoidance of doubt, other than as set forth in this paragraph, no other amounts shall be payable by Cinemark to LLC in consideration for the Beverage Slot (including, for the avoidance of doubt, the Beverage Slot prior to the Co-Branded Spot (as defined below) and the Beverage Slot which follows the final trailer position). The Parties agree that Cinemark’s co-branded spot with its beverage concessionaire (the “Co-Branded Slot”), which is up to (and including) thirty (:30) seconds in length, shall be displayed prior to the Policy Trailer, and may be an advertisement for or may include advertisements for Cinemark’s beverage concessionaire, (i) is not a Beverage Slot for the purposes of this Agreement, (ii) does not reduce the amount of

 

---

 

time allotted under Section 4.05 to its Branded Slots within the Play List, and (iii) Cinemark is not required to pay the Beverage Agreement Advertising Rate for such spot.”

 

 

 

 

 

 

 

Section 15.05A Fiscal Calendar.  LLC’s fiscal year ends on the first Thursday after December 25 each year.   LLC shall not change its method of calculating its fiscal year (i) unless for a bona fide accounting reason, and (ii) in any event without prior written notice to Cinemark.

Section 15.05B No Affiliates. As of the date of the First Amendment to the Agreement, LLC hereby represents and warrants to Cinemark that LLC has no Affiliates. LLC acknowledges and agrees that

 

---

 

it shall not sell Advertising Services through Affiliates of LLC without Cinemark’s consent, and, if Cinemark so consents, then references in this Agreement to “revenue payable to LLC” or similar phrases shall be deemed to refer to “revenue payable to LLC or its Affiliates”.

 

The initial Beverage Agreement Advertising Rate as of the Original Effective Date is $[***] in Cinemark Attendance for a thirty second (:30) advertisement. The Beverage Agreement Advertising Rate shall (i) increase eight percent (8%) per year for each of the first two fiscal years beginning at the end of LLC’s 2007 fiscal year; (ii) beginning at the end of the period set forth in clause (i) above, increase six percent (6%) per year for each of the next two fiscal years; and (iii) beginning at the end of the period set forth in clause (ii) above until November 1, 2019, increase in an amount equal to the annual percentage increase in the advertising rates per thousand attendees charged by LLC to unaffiliated third parties (excluding the advertising associated with the Beverage Agreement) for on-screen advertising in the Pre-Feature Program during the last six (6) minutes preceding the start of the Trailers for each fiscal year, but in no event more than the highest advertising rate per thousand attendees being then-charged by LLC.  Commencing on November 1, 2019, the Beverage Agreement Advertising Rate shall be $[***] in Cinemark Attendance for a thirty second (:30) advertisement, which is the cost per mille charged by LLC to Cinemark as of the beginning of LLC’s 2019 fiscal year for the Beverage Slot and shall increase two percent (2%) annually (1) effective beginning the first day of the 2020 fiscal year and (2) thereafter on each fiscal year anniversary of such date.

For clarity, prior to November 1, 2019, the existence of this Amendment shall not impact the then-current Beverage Agreement Advertising Rate.

 

The following definitions are hereby added to Schedule 1 to the ESA and inserted alphabetically into Section A thereof:

“Aggregate Post-Showtime Opt-In Attendance” means [***].

“Aggregate Post-Showtime Opt-In Revenue” means [***].

“Aggregate Post-Showtime Theatre Access Pool” means [***].

[***].

“Cinemark Attendance Allocation” has the meaning assigned to it in Schedule 1, Section E.

“Cinemark Post-Showtime Opt-In Revenue” means [***].

 

---

 

“Cinemark Post-Showtime Opt-Out Attendance” means [***].

“Cinemark Post-Showtime Opt-Out Revenue” means [***].

“Cinemark Post-Showtime Theatre Access Fee” means the product of (i) the Post-Showtime Theatre Access Fee per Patron and (ii) Cinemark Attendance for the applicable fiscal month.

“Cinemark Pro-Rated Platinum Revenue Minimum” has the meaning assigned to it in Schedule 1, Section E.

“Cinemark Pro-Rated Platinum Revenue Trailer Pod Fee” has the meaning assigned to it in Schedule 1, Section E.

“Cinemark Spot Trailer Pod Fees” means Cinemark’s Trailer Pod Fees for any [***] Platinum Spot.

“Network Split” means displaying [***] concurrent advertisers’ Platinum Spots in different auditoriums in Theatres that receive the applicable advertiser’s Platinum Spot in a Play List (but never, for the avoidance of doubt, in any auditorium in the same Play List).  The [***] Network Splits will always add up to 100% of the auditoriums in 100% of the Theatres, except as provided for in Section 4.01(b)(i)(B)(I)(10).

“Participating Cinemark Attendance” means the Cinemark Attendance for auditoriums in Theatres that: (a) for Platinum Spots, actually displayed the applicable Platinum Spot(s) as Platinum Spot(s) in the Trailer Pod Inventory, and (b) [***].

“Post-Showtime Content Opt-Out” means the process of opting out of Post-Showtime Inventory under Section 4.03A.

“Post-Showtime Content Participating Attendance” means [***].

“Post-Showtime Content Theatre Access Fee” means [***].

“Post-Showtime Theatre Access Fee” means a monthly payment from LLC to Cinemark in consideration for Theatres’ participation in Post-Showtime Advertising Services, which shall be the sum of (i) the Cinemark Post-Showtime Theatre Access Fee and (ii) the Post-Showtime Content Theatre Access Fee.

“Post-Showtime Theatre Access Fee per Patron” means the fee per patron as follows:

 

 

 

---

 

 

 

 

“Post-Showtime Theatre Access Pool Percentage” means [***].

“Pro-Rated Platinum Minimum Ratio” has the meaning assigned to it in Schedule 1, Section E.

“Regal Post-Showtime Theatre Access Fee” means the Regal Post-Showtime Theatre Access Fee, calculated pursuant to the Regal Exhibitor Agreement.

“Spot Trailer Pod Revenue” means all revenue generated from any [***] Platinum Spot as Trailer Pod Inventory that was displayed in the applicable period.

[***].

The following definition in Section A of Schedule 1 to the ESA is hereby deleted and replaced with the following:

[***].

 

[***].

 

 

 

---

 

Remainder of page intentionally left blank; signature page follows.

 

 

 

 

 

 

IN WITNESS WHEREOF, the Parties have, by their respective duly authorized representatives, executed this Amendment as of the Amendment Effective Date.