EXHIBIT
10.1


 




 





 


 


CONTRIBUTION
AND


UNIT
HOLDERS AGREEMENT


 


 


DATED
AS OF MARCH 29, 2005


 


 


AMONG


 


 


NATIONAL
CINEMA NETWORK, INC.,


 


REGAL
CINEMEDIA CORPORATION


 


AND


 


NATIONAL
CINEMEDIA, LLC


 




 





 





















 


TABLE OF CONTENTS


 


	
  ARTICLE 1
  DEFINITIONS

  	
   

  
	
  1.1

  	
  Defined Terms

  	
   

  
	
  1.2

  	
  Other Definitional Provisions;
  Interpretation.

  	
   

  
	
  ARTICLE 2
  FORMATION OF THE COMPANY; CONTRIBUTION AND UNIT ISSUANCES

  	
   

  
	
  2.1

  	
  Organization of the Company

  	
   

  
	
  2.2

  	
  Directors and Officers of the Company

  	
   

  
	
  2.3

  	
  INTENTIONALLY DELETED

  	
   

  
	
  2.4

  	
  Contributions by NCN

  	
   

  
	
  2.5

  	
  Contributions by Regal

  	
   

  
	
  2.6

  	
  Issuances of Equity Interests to Founding
  Members

  	
   

  
	
  2.7

  	
  Assumption of Liabilities by the Company

  	
   

  
	
  2.8

  	
  Proration Adjustments.

  	
   

  
	
  2.9

  	
  Working Capital Loan

  	
   

  
	
  ARTICLE 3
  CLOSING

  	
   

  
	
  3.1

  	
  Time and Place of Closing

  	
   

  
	
  3.2

  	
  Closing Deliveries by the Company

  	
   

  
	
  3.3

  	
  Closing Deliveries by NCN

  	
   

  
	
  3.4

  	
  Closing Deliveries by Regal

  	
   

  
	
  3.5

  	
  Additional Closing Deliveries

  	
   

  
	
  ARTICLE 4
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
  4.1

  	
  Representations and Warranties of the
  Parties

  	
   

  
	
  4.2

  	
  Representations and Warranties of the
  Company

  	
   

  
	
  ARTICLE 5
  PERSONNEL

  	
   

  
	
  5.1

  	
  Determination of Personnel Requirements and
  Recruiting

  	
   

  
	
  5.2

  	
  Non-Solicitation
  of Employees

  	
   

  
	
  ARTICLE 6 COVENANTS

  	
   

  
	
  6.1

  	
  Filings

  	
   

  
	
  6.2

  	
  Agreement to Cooperate; Further Assurances

  	
   

  
	
  6.3

  	
  Business Plan and Budget

  	
   

  
	
  6.4

  	
  Labor
  Issues

  	
   

  
	
  ARTICLE 7 CONDITIONS PRECEDENT TO
  CLOSING

  	
   

  
	
  7.1

  	
  Conditions Precedent to Closing

  	
   

  
	
  7.2

  	
  Waiver of Conditions Precedent

  	
   

  
	
  ARTICLE 8 TERMINATION; SURVIVAL

  	
   

  
	
  8.1

  	
  Termination

  	
   

  
	
  8.2

  	
  Survival

  	
   

  
	
  ARTICLE 9 OTHER

  	
   

  
	
  9.1

  	
  Injunctive
  Relief

  	
   

  
	
  9.2

  	
  Obligations of the Company

  	
   

  
	
  9.3

  	
  Amendments

  	
   

  



 


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  9.4

  	
  Binding Effect; Assignment

  	
   

  
	
  9.5

  	
  Notices

  	
   

  
	
  9.6

  	
  Integration

  	
   

  
	
  9.7

  	
  Severability

  	
   

  
	
  9.8

  	
  Counterparts

  	
   

  
	
  9.9

  	
  Governing Law; Submission to Jurisdiction

  	
   

  
	
  9.10

  	
  Expenses

  	
   

  
	
  9.11

  	
  Confidentiality

  	
   

  
	
  9.12

  	
  Publicity

  	
   

  
	
  9.13

  	
  Indemnification

  	
   

  



 


SCHEDULES


 


	
  Schedule 2.4(a)

  	
   

  	
  NCN Assumed Liabilities and NCN Contributed
  Assets

  	
   

  
	
  Schedule 2.5(a)

  	
   

  	
  Regal Assumed Liabilities and Regal Contributed
  Assets

  	
   

  
	
  Schedule 4.1(c)

  	
   

  	
  Conflicts, Government Approvals and Notices

  	
   

  
	
  Schedule 4.1(e)

  	
   

  	
  Invalid Contributed Assets

  	
   

  
	
  Schedule 4.2(d)

  	
   

  	
  Capitalization

  	
   

  



 


EXHIBITS


 


	
  Exhibit A

  	
   

  	
  Certificate of Formation

  	
   

  
	
  Exhibit B

  	
   

  	
  Business Plan and Budget

  	
   

  



 


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CONTRIBUTION AND
UNIT HOLDERS AGREEMENT


 


This Contribution and Unit Holders Agreement,
dated as of March 29, 2005, is by and among National Cinema Network, Inc.,
a Delaware corporation (“NCN”),
Regal CineMedia Corporation, a Virginia corporation (“Regal,” and with NCN, each a “Party” and
collectively, the “Parties”),
and National CineMedia, LLC, a Delaware limited liability company
(the “Company”).


 


RECITALS


 


WHEREAS, the Parties desire to establish a
joint venture in the form of the Company for the Joint Venture Purposes (as
defined herein);


 


WHEREAS, the AMC Founding Member, and the
Regal Founding Member will be the founding members of the Company (the “Founding Members,” which term, as used herein, shall include each of such member’s
Permitted Transferees, if applicable);


 


WHEREAS, subject to the terms and conditions
of this Agreement, NCN and Regal desire to contribute certain assets identified
herein to the Company in consideration for the receipt of certain Units (as
defined herein) by the Founding Members; and


 


WHEREAS, the Parties hereto desire to set
forth certain agreements with respect to, among other things, the business,
formation and operations of the Company.


 


NOW, THEREFORE, in consideration of the
mutual covenants and agreements set forth in this Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:


 


ARTICLE 1


 


DEFINITIONS


 


For purposes of this Agreement, the following
terms have the meanings specified or referred to in this Section 1:


 


1.1           Defined
Terms.  As used in this
Agreement:


 


“Action”
shall have the meaning set forth in Section 4.1(h) of this Agreement.


 


“Affiliate”
shall mean with respect to any Person, any Person that directly or indirectly,
through one or more intermediaries Controls, is Controlled by or is under
common Control with such Person. Notwithstanding the foregoing, (i) no Member
shall be deemed an Affiliate of the Company, (ii) the Company shall not be
deemed an Affiliate of any Member, (iii) no stockholder of REG, or any of such
stockholder’s Affiliates (other than REG and its Subsidiaries) shall be deemed
an Affiliate of any Member or the Company, and (iv) no stockholder


 


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of Marquee Holdings, or
any of such stockholder’s Affiliates (other than Marquee Holdings and its Subsidiaries) shall be deemed an
Affiliate of any Member or the Company.


 


“Aggregate Severance Amount”
shall have the meaning set forth in Section 5.1(e) of this Agreement.


 


“Agreement”
shall mean this Contribution and Unit Holders Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.


 


“AMC Founding Member”
shall have the meaning set forth in Section 1.1 of the Company Operating
Agreement.


 


“Assumed
Liabilities” shall have the meaning set forth in Section 2.7
of this Agreement.


 


“Assumption Agreement”
shall have the meaning set forth in Section 2.7 of this Agreement and
shall be entered into of even date herewith by and among the Parties.


 


“Board”
shall mean the Board of Directors of the Company.


 


“Budget” shall
have the meaning set forth in Section 1.1 of the Company Operating
Agreement.


 


“Business
Day” shall mean a day other than a Saturday, Sunday, federal or
State of New York holiday or other day on which commercial banks in New York,
New York are authorized or required by law to close.


 


“Business
Plan” shall mean the detailed three year business plan for the
Company, set forth in Exhibit B.


 


“Certificate of Formation”
shall have the meaning set forth in Section 2.1 of this Agreement and
shall be in substantially in the form of Exhibit A attached hereto.


 


“Class A Units”
shall have the meaning set forth in Section 1.1 of the Company Operating
Agreement.


 


“Closing”
shall have the meaning set forth in Section 3.1 of this Agreement.


 


“Closing Date”
shall have the meaning set forth in Section 3.1 of this Agreement.


 


“Company”
shall have the meaning set forth in the Preamble of this Agreement.


 


“Company
Operating Agreement” shall mean the Limited Liability Company
Operating Agreement of the Company of even date herewith entered into by and
between the Members of the Company.


 


“Company Reimbursement
Amount” shall have the meaning set forth in Section 5.1(e)
of this Agreement.


 


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“Company Reimbursement
Percentage” shall have the meaning set forth in Section 5.1(e)
of this Agreement.


 


“Confidential Information”
shall have the meaning set forth in Section 9.11(a) of this Agreement.


 


“Contributed Assets”
shall have the meaning set forth in Section 2.5(a) of this Agreement.


 


“Contributed IP”
shall have the meaning set forth in Section 4.1(f) of this Agreement.


 


“Control”
(including the terms “Controlled by”
and “under common Control with”),
with respect to the relationship between or among two or more Persons, means
the possession, directly or indirectly, of the power to direct or cause the
direction of the affairs or management of a Person, whether through the
ownership of voting securities, as trustee or executor, by contract or
otherwise.


 


“Equity
Interests” shall mean, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of capital stock, partnership interests (whether
general or limited), limited liability company interests or equivalent
ownership interests in or issued by, or interests, participations or other
equivalents to share in the revenues or earnings of (except as provided in any
service agreement that includes a revenue sharing component entered into in the
ordinary course of business) such Person or securities convertible into, or
exchangeable or exercisable for, such shares, interests, participations or
other equivalents and options, warrants or other rights to acquire such shares,
interests, participations or other equivalents; provided  that
discounts and rebates granted in the ordinary course of business shall not in
any event constitute an Equity Interest.


 


“Exchange
Act” shall mean the Securities and Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as the same may
be amended from time to time.


 


“Exhibitor Services
Agreements” shall have the meaning set forth in Section 1.1
of the Company Operating Agreement.


 


“Founding Members”
shall have the meaning set forth in the Recitals to this Agreement.


 


“Founding
Member Representation Letter” shall have the meaning set forth
in Section 4.1(i) of this Agreement.


 


“Governmental
Approvals” shall have the meaning set forth in Section 4.1(c)
of this Agreement.


 


“Governmental
Authority” shall mean any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.


 


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“Governmental
Event” shall have the meaning set forth in Section 8.1(a)
of this Agreement.


 


“Group”
shall have the meaning set forth in Section 13(d)(3) of the Exchange Act.


 


“HSR Act”
shall have the meaning set forth in Section 4.1(c) of this Agreement.


 


“Intellectual
Property” shall mean all U.S., state and foreign intellectual
property rights, including but not limited to all (i) (a) patents, inventions,
discoveries, processes and designs; (b) copyrights and works of authorship in
any media; (c) trademarks, service marks, trade names, trade dress and other
source indicators, and the goodwill of the business symbolized thereby; (d)
software; and (e) trade secrets and other confidential or proprietary
documents, ideas, plans and information; (ii) registrations, applications and
recordings related thereto; (iii) rights to obtain renewals, extensions,
continuations or similar legal protections related thereto; and (iv) rights to
bring an action at law or in equity for the past, present or future infringement
or other impairment thereof; provided, however, the foregoing
shall not include Original Technology (as defined in the Software License
Agreement).


 


“Joint
Venture Agreements” shall mean, collectively, this Agreement,
the Company Operating Agreement, the Exhibitor Services Agreements, the
Founding Member Representation Letter, the Transition Services Agreement, and
the Software License Agreement.


 


“Joint
Venture Purposes” shall have the meaning set forth in Section 1.1
of the Company Operating Agreement.


 


“Marquee Holdings”
shall have the meaning set forth in Section 1.1 of the
Company Operating Agreement.


 


“Material Adverse Effect”
shall have the meaning set forth in Section 4.1(a) of this Agreement.


 


“Members”
shall have the meaning set forth in Section 1.1 of the Company Operating
Agreement.


 


“NASDAQ”
shall mean the Nasdaq Stock Market of the Nasdaq National Market.


 


“NCN” shall
have the meaning set forth in the Preamble of this Agreement.


 


“NCN Assumed Liabilities”
shall have the meaning set forth in Section 2.4(a) of this Agreement.


 


“NCN
Contributed Assets” shall have the meaning set forth in Section 2.4(a)
of this Agreement.


 


“NCN Contribution”
shall have the meaning set forth in Section 2.4(b) of this Agreement.


 


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“NCN Indemnitees”
shall have the meaning set forth in Section 9.13(a) of this Agreement.


 


“NCN Liabilities”
shall have the meaning set forth in Section 9.13(a) of this Agreement.


 


“NCN Transferred Employees”
shall have the meaning set forth in Section 5.1(a) of this Agreement.


 


“NYSE” shall
mean the New York Stock Exchange.


 


“Party” or “Parties” shall have the meaning set
forth in the Preamble to this Agreement.


 


“Party Information”
shall have the meaning set forth in Section 9.11(b) of this Agreement.


 


“Permitted
Transferee” shall have the meaning set forth in Section 1.1
of the Company Operating Agreement.


 


“Person”
shall mean any individual, corporation, limited liability company, partnership,
trust, joint stock company, business trust, unincorporated association, joint
venture, Governmental Authority or other entity or organization of any nature
whatsoever or any Group of two or more of the foregoing.


 


“Post-Closing Settlement
Statement” shall have the meaning set forth in Section 2.8(d)
of this Agreement.


 


“Preliminary Settlement
Statement” shall have the meaning set forth in Section 2.8(a)
of this Agreement.


 


“Proprietary
Information” shall mean all Intellectual Property, including but
not limited to information of a technological or business nature, whether
written or oral and if written, however produced or reproduced, received by or
otherwise disclosed to the receiving Party from or by the disclosing Party that
is marked proprietary or confidential or bears a marking of like import, or
that the disclosing Party states is to be considered proprietary or
confidential, or that a reasonable person would consider proprietary or
confidential under the circumstances of its disclosure.


 


“RCM Transferred Employees”
shall have the meaning set forth in Section 5.1(b) of this Agreement.


 


“REG” shall
have the meaning set forth in Section 1.1 of the Company Operating
Agreement.


 


“Regal”
shall have the meaning set forth in the Preamble of this Agreement.


 


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“Regal Assumed Liabilities”
shall have the meaning set forth in Section 2.5(a) of this Agreement.


 


“Regal Contributed Assets” shall
have the meaning set forth in Section 2.5(a) of this Agreement.


 


“Regal Contribution”
shall have the meaning set forth in Section 2.5(b) of this Agreement.


 


“Regal Founding Member”
shall have the meaning set forth in Section 1.1 of the Company Operating
Agreement.


 


“Regal Indemnitees”
shall have the meaning set forth in Section 9.13(c) of this Agreement.


 


“Regal Liabilities”
shall have the meaning set forth in Section 9.13(c) of this Agreement.


 


“SEC”
shall mean the U.S. Securities and Exchange Commission or any other federal
agency then administering the Securities Act or the Exchange Act and other
federal securities law.


 


“Securities
Act” shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as the same may be amended from
time to time.


 


“Software License Agreement” shall have
the meaning set forth in Section 1.1 of the Company Operating Agreement.


 


“Subsidiary”
shall mean, with respect to any Person, (i) a corporation a majority of whose
capital stock with the general voting power under ordinary circumstances to
vote in the election of directors of such corporation (irrespective of whether
or not, at the time, any other class or classes of securities shall have, or
might have, voting power by reason of the happening of any contingency) is at
the time beneficially owned by such Person, by one or more Subsidiaries of such
Person or by such Person and one or more Subsidiaries thereof or (ii) any other
Person (other than a corporation), including a joint venture, a general or
limited partnership or a limited liability company, in which such Person, one
or more Subsidiaries thereof or such Person and one or more Subsidiaries
thereof, directly or indirectly, at the date of determination thereof,
beneficially own at least a majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other Persons
performing such functions) or act as the general partner or managing member of
such other Person.


 


“Terminated Employees”
shall have the meaning set forth in Section 5.1(c) of this Agreement.


 


“Termination Expenses”
shall have the meaning set forth in Section 5.1(c) of this Agreement.


 


“Territory”
shall mean the United States of America and Canada.


 


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“Third-Party Software”
shall have the meaning set forth in Section 4.1(f) of this Agreement.


 


“Transfer”
(including the terms “Transferred”
and “Transferring”) shall
mean, directly or indirectly, to sell, transfer, give, exchange, bequest,
assign, pledge, encumber, hypothecate or otherwise dispose of, either
voluntarily or involuntarily, or to enter into any contract, option or other
arrangement or understanding with respect to the sale, transfer, gift,
exchange, merger, combination, bequest, assignment, pledge, encumbrance,
hypothecation or other disposition of, any Equity Interests or other assets beneficially
owned by a Person or any interest in any Equity Interests or other assets
beneficially owned by a Person.


 


“Transition Period” shall have the meaning set forth in Section 2(a)
of the Transition Services Agreement.


 


“Transition Services Agreement” shall have
the meaning set forth in Section 1.1 of the Company Operating Agreement.


 


“Unexercised Option”
shall have the meaning set forth in Section 5.1(e) of this Agreement.


 


“Units”
shall have the meaning set forth in Section 1.1 of the Company Operating
Agreement.


 


“WARN Act”
shall mean the Worker Adjustment Retraining and Notification Act of 1988, as
amended,


 


1.2          Other Definitional
Provisions; Interpretation.


 


(a)           The words “hereof,” “herein”
and “hereunder” and words of similar import when used in this Agreement will
refer to this Agreement as a whole, including the Exhibits and Schedules
attached hereto, and not to any particular provision of this Agreement, and section and
subsection references are to this Agreement unless otherwise specified.


 


(b)           The words “include” and
“including” and words of similar import when used in this Agreement shall be
deemed to be followed by the words “without limitation.”


 


(c)           The headings in this
Agreement are included for convenience of reference only and will not limit or
otherwise affect the meaning or interpretation of this Agreement.


 


(d)           The meanings given to
terms defined herein will be equally applicable to both the singular and plural
forms of such terms.  Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.


 


(e)           All matters to be
agreed to by any Party must be agreed to in writing by such Party unless
otherwise indicated herein.


 


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ARTICLE 2


 


FORMATION
OF THE COMPANY; CONTRIBUTION AND UNIT ISSUANCES


 


2.1          Organization of the
Company.  On or before the
Closing Date, the Parties shall cause the Company to be formed as a limited
liability company having the name “National
CineMedia, LLC” to be organized under the laws of the State of
Delaware.  The Parties shall take, and
shall cause the Company to take, all requisite action to cause the Certificate
of Formation (the “Certificate of
Formation”) of the Company to be filed with the Secretary of
State of the State of Delaware and become effective on or before the Closing
Date.  Upon the Closing, the Parties
shall cause the Founding Members to execute and deliver the Company Operating
Agreement.


 


2.2          Directors and
Officers of the Company.  The
Parties shall take all requisite action to cause the directors and officers of
the Company to be as provided in Article 4
of the Company Operating Agreement upon or after the Closing.


 


2.3          INTENTIONALLY DELETED.


 


2.4          Contributions by NCN.


 


(a)           As a contribution to
the capital of the Company and in consideration of the issuance to the AMC
Founding Member of Class A Units in accordance with Section 2.6(a) and the
assumption by the Company (x) at the Closing with respect to those liabilities
listed on Part I of Schedule 2.4(a) or (y) post-Closing with respect to
those liabilities listed on Part II of Schedule 2.4(a) as consents are
obtained but in no event later than the expiration of the Transition Services
Agreement (the “NCN Assumed Liabilities”),
NCN shall contribute to the Company or cause one or more of its Subsidiaries to
contribute:


 


(i)            at
the Closing, $0.00 (subject to adjustment pursuant to Section 2.8(c)) in cash by wire transfer of immediately available funds;


 


(ii)           at
the Closing with respect to those assets and other items listed on Part III of Schedule 2.4(a)
or post-Closing with respect those assets or other items listed on Part IV of Schedule 2.4(a)
as consents are obtained but in no event later than the expiration of the
Transition Services Agreement (the “NCN
Contributed Assets”); and


 


(iii)          at
the Closing, the estimated amount on an after tax-basis of Termination Expenses
to be paid by NCN with respect to the NCN Terminated Employees.


 


(b)           The contributions set
forth in the foregoing clause (a) are collectively referred to as the “NCN Contribution.”


 


2.5          Contributions by
Regal.


 


(a)           As a contribution to
the capital of the Company and in consideration of the issuance to the Regal
Founding Member of Class A Units in accordance with Section 2.6(b) and the
assumption by the Company (x) at the Closing with respect to those liabilities
listed on Part I of Schedule 2.5(a) or (y) post-Closing with respect to
those liabilities listed on Part II of Schedule 2.5(a)


 


8





















 


as consents
are obtained but in no event later than the expiration of the Transition
Services Agreement (the “Regal Assumed Liabilities”),
Regal shall contribute to the Company or cause one or more of its Subsidiaries
to contribute:


 


(i)            at
the Closing, $1,291,128 (subject to adjustment pursuant to Section 2.8(c)) in cash by wire transfer of immediately available funds;


 


(ii)           at
the Closing with respect to those assets listed on Part III of Schedule 2.5(a)
or post-Closing with respect those assets listed on Part IV of Schedule 2.5(a)
as consents are obtained but in no event later than the expiration of the
Transition Services Agreement (the “Regal
Contributed Assets,”
collectively with the NCN Contributed Assets, the “Contributed
Assets”); and


 


(iii)          at
the Closing, the estimated amount on an after tax-basis of Termination Expenses
to be paid by Regal with respect to the Regal Terminated Employees.


 


(b)           The contributions set
forth in the foregoing clause (a) are collectively referred to as the “Regal Contribution.”


 


2.6          Issuances of Equity
Interests to Founding Members.


 


(a)           In consideration for
the NCN Contribution, at the Closing the Company shall issue to the AMC
Founding Member 370 Class A
Units, which issuances shall be duly authorized and which Class A Units shall
be, on the Closing Date, validly issued and free and clear of all liens and
encumbrances (other than those arising pursuant to this Agreement and the
Company Operating Agreement).


 


(b)           In consideration for
the Regal Contribution, at the Closing the Company shall issue to the Regal
Founding Member 630 Class
A Units, which issuances shall be duly authorized and which Class A Units shall
be, on the Closing Date, validly issued and free and clear of all liens and
encumbrances (other than those arising pursuant to this Agreement and the
Company Operating Agreement).


 


(c)           At the Closing, the
Company shall deliver (i) to NCN evidence of the issuance of the Class A Units
issued pursuant to Section 2.6(a) and (ii) to the Regal Founding Member
evidence of the issuance of the Class A Units issued pursuant to Section 2.6(b).


 


2.7          Assumption of
Liabilities by the Company.  On
the Closing Date, the Parties shall cause the Company to deliver to each of the
Parties an undertaking (the “Assumption
Agreement”), pursuant to which the Company shall, on and as of
the Closing Date, assume and agree to perform, pay and discharge when due and
after obtaining consents as required for such assignment, all the NCN Assumed
Liabilities and Regal Assumed Liabilities (collectively, the “Assumed Liabilities”).  The Company will not assume, and shall not be
deemed to have assumed, any liability or obligation of any Party or any of its
Affiliates, or any current or former employee of any Party or any of its
Affiliates, of any kind or nature whatsoever, except as expressly provided in
the Assumption Agreement and this Agreement.


 


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2.8          Proration Adjustments.


 


(a)           Items of income and
expense or asset or liability, as the case may be, shall be prorated as of the
Closing Date, so that each Party shall bear all such income and expense with
respect to its respective Contributed Assets and Assumed Liabilities that it
accrues or incurs through and including the period preceding the Closing Date,
and the Company shall bear all such income and expense with respect to the
Contributed Assets and Assumed Liabilities that it accrues or incurs on and
after the Closing Date.  Prorations and
the estimated amount of each Parties’ respective Termination Expenses shall be
made pursuant to a preliminary settlement statement (the “Preliminary Settlement Statement”)
prepared in good faith and delivered by each of NCN and Regal to each
other prior to Closing, together with such supplemental calculations and
information as shall be reasonably necessary or appropriate to enable the other
Party to determine the accuracy thereof. 
The Preliminary Settlement Statement shall be based upon the most
current and reliable information reasonably available to such Party at the time
of its delivery, and may be based upon estimates where actual amounts are
impractical to obtain or verify.  The
amounts set forth on the Preliminary Settlement Statements shall be subject to
adjustment or correction on the Post-Closing Settlement Statement.


 


(b)           Each Preliminary
Settlement Statement shall include an estimate of the Termination Expenses
attributable to each respective Terminated Employee as well as the following
information as a credit or debit to such Party or the Company as applicable:


 


(i)            payments
and charges under contracts (to the extent such payments and charges are
included in the Contributed Assets or Assumed Liabilities);


 


(ii)           credits
or debits for prepaid amounts and payments made in arrears under theatre
advertising arrangements; and


 


(iii)          credits
or debits resulting from any increase or decrease in the value of the
Contributed Assets (which, in the event of a decrease in value of any
Contributed Asset resulting from a breach by a Party of any covenant or
agreement set forth in this Agreement, any debit may be in addition to and not
in lieu of any additional rights or remedies of the non-breaching Party set
forth in this Agreement).


 


(c)           To the extent the
aggregate of the applicable Party’s credits and the Company’s obligations with
respect to such Party exceeds the aggregate of the Company’s credits and the
Party’s obligations set forth in accordance with Section 2.8(b), such
Party shall receive a credit to the cash required
to be contributed pursuant to Section 2.4(a)(i) or 2.5(a)(i), as the case
may be, in the amount of such excess.  To
the extent the aggregate of the Company’s credits and a Party’s obligations
exceeds the aggregate of a Party’s credits and the Company’s obligations with
respect to such Party set forth in accordance with Section 2.8(b),
the amount of cash required to be contributed
pursuant to Section 2.4(a)(i) or 2.5(a)(i), as the case may be, shall be
increased by the amount of such excess.


 


(d)           The Parties shall cause
the Company to deliver a post-closing settlement statement (the “Post-Closing Settlement Statement”) to
each Party not later than 60 days after
Closing, together with such supplemental calculations and information as shall
be reasonably


 


10





















 


necessary or
appropriate to enable each such Party to determine the accuracy thereof.  The Post-Closing Settlement Statement shall
be based upon the most current and reliable information reasonably available to
the Company at the time of its delivery. 
Within 30 calendar days of the applicable Party’s receipt of the
Post-Closing Settlement Statement, such Party shall notify the Company in
writing whether such Party approves the applicable Post-Closing Settlement
Statement.  If a Party approves the
applicable Post-Closing Settlement Statement, or fails to notify the Company of
its disapproval in the manner and within the time specified above, then the
Post-Closing Settlement Statement, with respect to such Party, shall be as
delivered to such Party.  If a Party disapproves
the Post-Closing Settlement Statement, then such Party and the Company shall
use their reasonable efforts to agree upon the amounts to be set forth in the
Post-Closing Settlement Statement, and the Post-Closing Settlement Statement
shall be amended accordingly with respect to such Party.  If the Company and such Party cannot agree
upon the amounts to be set forth in the Post-Closing Settlement Statement, then
the accounting firm of Deloitte & Touche LLP, or its successor, is
designated to act as sole arbitrator and to decide all points of disagreement
with respect to the Post-Closing Settlement Statement, such decision to be
binding on the Parties.  If such firm is
unwilling or unable to serve in such capacity, then such Party and the Company
shall use their reasonable efforts to designate and retain another mutually
acceptable nationally recognized accounting firm not retained for general audit
purposes by either of them as the sole arbitrator under this Section 2.8(d).  The costs and expenses of the
arbitrator, whether the firm designated above, or otherwise designated, shall
be shared equally by the applicable Party and the Company and in the event that
two or more Parties object, then such Parties’ aggregate share of the costs and
expenses of the arbitrator shall be fifty percent.  Within five Business Days after the
Post-Closing Settlement Statement has been agreed upon or disagreements
resolved, the Company or the applicable Party, as the case may be, shall make a
payment by wire transfer of immediately available funds to the other Party in
an amount equal to the difference between the amount paid pursuant to Section 2.4(a)(i)
or 2.5(a)(i), as applicable, and the proration amount set forth on the
Post-Closing Settlement Statement, together with an interest rate per annum
for the period from and including the Closing Date through and including the
date of payment at the “prime” rate of interest as published from time
to time by The Wall Street Journal in its “Money Rates” section of its
Western Edition newspaper in effect from time to time during such period.


 


2.9          Working Capital Loan.  Within fifteen (15) days after the Closing
Date, the Founding Members will make available to the Company for working
capital a revolving loan in an aggregate amount up to $11,000,000.  The Founding Members will be obligated to
fund their ratable share, in the same proportion as their percentage of Units,
of the principal amount of such revolving loan. 
Such revolving loan will have a maturity date of March 31, 2007, accrue
interest at a minimum of the short-term Applicable Federal Rate (AFR) per
annum, and include such other terms and conditions as the Founding Members and
the Company may agree.


 


ARTICLE 3


 


CLOSING


 


3.1          Time and Place of
Closing.  The closing of the transactions
contemplated herein (the “Closing”)
shall take place at 2:00 p.m. at the offices of Hogan & Hartson LLP at One
Tabor


 


11





















 


Center, Suite 1500, 1200 Seventeenth Street, Denver, Colorado, 80202 on
March 29, 2005 (the “Closing Date”).


 


3.2          Closing Deliveries by
the Company.  At the Closing, the
Company shall deliver or cause to be delivered:


 


(a)           evidence of the
issuance of Class A Units pursuant to Section 2.6;


 


(b)           certified copies of the
Certificate of Formation;


 


(c)           the Company Operating
Agreement, duly executed and delivered;


 


(d)           the Assumption
Agreements, duly executed and delivered; and


 


(e)           any
other Joint Venture Agreements to which the Company is to be a party, duly
executed and delivered.


 


3.3          Closing Deliveries by
NCN.  At the Closing, NCN shall
deliver or cause to be delivered:


 


(a)           the amount set forth in
Section 2.4(a)(i), if any, by wire transfer in cash to a bank account of
the Company identified by the Company prior to Closing;


 


(b)           appropriate instruments
of transfer of the NCN Contributed Assets listed on Schedule 2.4(a);


 


(c)           the Company Operating
Agreement, duly executed and delivered; and


 


(d)           any
other Joint Venture Agreements to which NCN or any of its Affiliates is a
party, duly executed and delivered.


 


3.4          Closing Deliveries by
Regal.  At the Closing, Regal
shall deliver or cause to be delivered:


 


(a)           the amount set forth in
Section 2.5(a)(i), if any, by wire transfer in cash to a bank account of
the Company identified by the Company prior to Closing;


 


(b)           appropriate instruments
of transfer of the Regal Contributed Assets listed on Schedule 2.5(a);


 


(c)           the Company Operating
Agreement, duly executed and delivered;


 


(d)           the
Founding Member Representation Letter, duly executed and delivered; and


 


(e)           any
other Joint Venture Agreements to which Regal or any of its Affiliates is a
party, duly executed and delivered.


 


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3.5          Additional Closing
Deliveries.  From time to time on
and after Closing, the Parties and the Company agree to execute and deliver
such other instruments of conveyance, assignment, assumption, transfer and
delivery and cause their Affiliates and Subsidiaries to take such other actions
as may be required to more effectively transfer to the Company the Contributed
Assets, and/or enable the Company to exercise and enjoy all rights and benefits
with respect thereto, and to perfect the assumption by the Company of all the
Assumed Liabilities.


 


ARTICLE 4


 


REPRESENTATIONS
AND WARRANTIES


 


4.1          Representations and
Warranties of the Parties.  Each
of the Parties, severally and not jointly, represents and warrants to each of
the other Parties hereto as follows:


 


(a)           Due Organization.  Such Party is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, and has the full power and authority to conduct its business as
now conducted by it except where failure would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on either
(x) the applicable Contributed Assets to be contributed by such Party or its
Subsidiaries, taken as a whole, to the Company, if any, pursuant to this
Agreement or (y) the ability of such Party, its affiliated Founding Member or
the Company to perform its obligations, taken as a whole, under the Joint
Venture Agreements to which it is a Party (a “Material Adverse Effect”). 
Such Party or its affiliated Founding Member, as the case may be, has
full power and authority to execute and deliver this Agreement and the other
Joint Venture Agreements to which it is or is anticipated to be a Party and to
perform its obligations hereunder and thereunder except where failure would
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


(b)           Authorization and
Validity of Agreement.  The
execution, delivery and performance by such Party of this Agreement and the
other Joint Venture Agreements to which such Party or its affiliated Founding
Member is or is anticipated to be a party and the consummation by such Party or
its affiliated Founding Member of the transactions contemplated hereby and
thereby have been duly authorized by all necessary action on the part of such
Party and its affiliated Founding Member, as the case may be.  Each of this Agreement and the other Joint
Venture Agreements to which such Party or its affiliated Founding Member is or
is anticipated to be a party has been (or will be, as applicable) duly executed
and delivered by such Party and its affiliated Founding Member, as the case may
be, and, assuming due execution and delivery by the other parties thereto,
constitutes (or will constitute, as applicable) a valid and legally binding
obligation of such Party or its affiliated Founding Member, as the case may be,
enforceable against it in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors’ rights generally,
general equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.


 


(c)           No Conflict; No
Government Approvals or Notices Required. 
Except as described in Schedule 4.1(c) with respect to such Party
and its affiliated Founding Member, the execution, delivery and performance by
such Party of this Agreement and the other Joint Venture


 


13





















 


Agreements to
which such Party or its affiliated Founding Member is or is anticipated to be a
party and the consummation by such Party or its affiliated Founding Member of
the transactions contemplated hereby and thereby will not (i) conflict with or
result in a breach of any provision of the certificate or articles of
organization or bylaws (or equivalent governing documents) of such Party or its
affiliated Founding Member, (ii) require any consent, approval, authorization
or permit of, or filing with or notification to, any Governmental Authority in the
Territory (collectively, “Governmental
Approvals”), except for any filing or termination of the waiting
period or other approval under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended (the “HSR Act”),
to the extent required, (iii) require the consent or approval of any
Person (other than a Governmental Authority) or violate or conflict with, or
result in a breach of any provision of, constitute a default (or an event which
with notice or lapse of time or otherwise would become a default) or give to
any third party any right of termination, cancellation, amendment or
acceleration under, or result in the creation of a lien or encumbrance on any
of the assets including the applicable Contributed Assets of such Party or its
affiliated Founding Member as the case may be, under, any of the terms,
conditions or provisions of any agreement, contract, license or other
obligation to which such Party, its affiliated Founding Member or any of their
respective Subsidiaries is a party or by which such Party, its affiliated
Founding Member or any of their respective Subsidiaries or any of their
respective assets or properties including the applicable Contributed Assets are
bound, or (iv) violate or conflict with any order, writ, injunction, decree, statute,
rule or regulation applicable to such Party, its affiliated Founding Member or
any of their respective Subsidiaries, except for the approval of the Board of
Directors of such Party or its affiliated Founding Member and except for, in the case of clauses
(ii), (iii) and (iv), any such consents, approvals, authorizations, permits,
filings and notifications the failure of which to obtain or make and any such
violations, conflicts, breaches, defaults and other rights which, individually
or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.


 


(d)           Sufficiency of and
Title to Properties; Absence of Liens and Encumbrances.  To the actual knowledge of such Party, such
Party or one or more of its Subsidiaries has, and on the Closing Date the
Company will acquire, good title to (or, in the case of leases, a valid lease
to, or, in the case of licenses, a valid license of) all properties, assets and
other rights included in the applicable Contributed Assets of such Party or one
or more of its Subsidiaries pursuant to this Agreement or the other Joint
Venture Agreements, if any, free and clear of all liens and encumbrances.


 


(e)           Properties,
Contracts, Permits and Other Data. 
Except as specified in Schedule 4.1(e), all rights, licenses,
leases, registrations, applications, contracts, commitments and other
agreements included in the Contributed Assets of such Party or one or more of
its Subsidiaries pursuant to this Agreement, or by which such Contributed
Assets are bound are in full force and effect and are valid and enforceable in
accordance with their respective terms except for such failures to so be in
full force and effect and valid and enforceable that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect.  Such Party and its Subsidiaries
are not in breach or default in the performance of any obligation thereunder
and, to the actual knowledge of such Party, no event has occurred or has failed
to occur whereby any of the other parties thereto have been or are reasonably
likely to be released therefrom or are reasonably likely to be entitled to
refuse to perform thereunder, the enforcement of which, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.


 


14





















 


(f)            Intellectual
Property and Technology.  Such Party
or one or more of its Subsidiaries own, or have the valid right to use, all
Intellectual Property included in the Contributed Assets of such Party or one
or more of its Subsidiaries pursuant to this Agreement, if any (“Contributed IP”).  Except as would not individually or in the
aggregate reasonably be expected to have a Material Adverse Effect and except
with respect to computer software used by the applicable party pursuant to a
third-party license (“Third-Party Software”),
(i) all such Contributed IP is in full force and effect in all respects, and
(ii) has not been canceled, expired or abandoned.  To the actual knowledge of such Party, the Contributed
IP (other than with respect to any Third-Party Software) has not infringed and
does not infringe the Intellectual Property of any third party, nor has such
Party or any of its Subsidiaries received any written notice of any claim to
such effect.  To the actual knowledge of
such Party (other than with respect to any Third-Party Software), no third
party has infringed or is infringing any of the Contributed IP.  None of the rights of such Party or its
Subsidiaries in the Contributed IP will be impaired in any way by the
contribution of the Contributed IP to the Company, other than any impairment
that, individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect, and all of the rights of such Persons to such property
will be fully enforceable by the Company after the Closing Date to the same
extent as such rights would have been enforceable by such Party or its
Subsidiaries before the Closing, without the consent or agreement of any other
party, other than any consents and agreements the failure of which to obtain,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.


 


(g)           Government Licenses,
Permits, Etc.  Such Party has all
licenses, permits, consents, approvals, authorizations, qualifications and
orders of Governmental Authorities required for the use of the Contributed
Assets of such Party or one or more of its Subsidiaries pursuant to this
Agreement, and such licenses, permits, consents, approvals, authorizations,
qualifications and orders are fully transferable and will be transferred at the
Closing to the Company, except where failure to have such licenses, permits,
consents, approvals, authorizations, qualifications or orders would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 


(h)          Litigation.  There is no legal action, suit, arbitration
or other legal, administrative or other governmental investigation, inquiry or
proceeding pending (collectively, an “Action”)
or, to the actual knowledge of such Party, threatened against or affecting such
Party which, if determined adversely to such Party, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.


 


(i)            Investment Representations.  NCN hereby represents, warrants and
acknowledges to the Company that (i) the Units to be acquired pursuant to Article 2
have not been registered under the Securities Act or under any state securities
laws, and (ii) NCN (A) is acquiring such Units for investment for its own
account and not with the view to, or any intention of, a resale in connection
with, any distribution thereof in whole or in part in violation of the
Securities Act, (B) is an “accredited investor” within the meaning of Regulation
D, Rule 501(a), promulgated by the SEC under the Securities Act, (C)
acknowledges that such Units may have to be held indefinitely unless
subsequently registered under the Securities Act or unless an exemption from
the registration requirements of the Securities Act is available, and (D)
represents that by reason of its business or financial experience, NCN has the
capacity to protect its own interests in connection with the transactions
contemplated by this Agreement.  Regal
shall cause its affiliated Founding


 


15





















 


Member to
execute and deliver, on or prior to the Closing, a representation letter (the “Founding Member Representation Letter”),
pursuant to which such Founding Member shall represent, warrant and acknowledge
to the Company the same foregoing investment representations made by NCN.


 


4.2          Representations and
Warranties of the Company.  The Company represents and
warrants to the other Parties as follows:


 


(a)           Due Organization.  The Company is duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
full power and authority to conduct its business consistent with the Joint
Venture Purposes.  The Company has full
power and authority to enter into this Agreement and the other Joint Venture
Agreements and to perform its obligations hereunder and thereunder, including
but not limited to the issuance of Units contemplated hereby.


 


(b)           Authorization and
Validity of Agreement.  The
execution, delivery and performance by the Company of this Agreement and the
other Joint Venture Agreements and the consummation by the Company of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary action on the part of the Company. Each of this Agreement and the
other Joint Venture Agreements has been duly executed and delivered by the
Company and, assuming due execution and delivery by the other parties thereto,
constitutes a valid and legally binding obligation of the Company, enforceable
against it in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.


 


(c)           No Conflict; No
Government Approvals or Notices Required. 
The execution, delivery and performance of this Agreement and the other
Joint Venture Agreements by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby will not (i) conflict with or
result in a breach of any provision of the Certificate of Formation or the
Company Operating Agreement, (ii) require any Governmental Approval, except for
any filing or termination of the waiting period or other approval under the HSR
Act, to the extent required, (iii) require the consent or approval of any
Person (other than a Governmental Authority) or violate or conflict with, or
result in a breach of any provision of, constitute a default (or an event which
with notice or lapse of time or otherwise would become a default) or give to
any third party any right of termination, cancellation, amendment or
acceleration under, or result in the creation of a lien or encumbrance on any
of the assets of the Company or any of its Subsidiaries, if any, under, any of
the terms, conditions or provisions of any agreement, contract, license or
other obligation to which the Company is a party or by which the Company or any
of its Subsidiaries, if any, or any of their respective assets or property are
bound, or (iv) violate or conflict with any order, writ, injunction, decree,
statute, rule or regulation applicable to the Company or any of its
Subsidiaries, if any, or any of their respective assets or property.


 


(d)           Capitalization.  Prior to the date hereof, there are no issued
or outstanding limited liability company interests of the Company. The Units to
be issued pursuant to this Agreement have been duly authorized and, when issued
as contemplated hereby, the Units will be


 


16





















 


validly issued
and free and clear of all liens and encumbrances (other than those arising
pursuant to this Agreement and the Company Operating Agreement).  Except as identified in the Joint Venture
Agreements, no rights have been granted with respect to any Equity Interests of
the Company.  Schedule 4.2(d) sets
forth the number, class and purchasers of all Units to be issued at the Closing
and the number, class and purchasers of Units which the Company may become
obligated to issue pursuant to any agreement in existence as of the date hereof
which obligates the Company to issue any Units.


 


(e)           Registration.  Assuming the accuracy of the representations
and warranties of the Founding Members delivered pursuant to Section 4.1(i)
hereof, the offer, sale and issuance of the Units pursuant hereto will be
exempt from the registration requirements of the Securities Act and will have
been registered, qualified or exempt from registration and qualification under
the registration, permit or qualification requirements of all applicable state
securities laws.


 


ARTICLE 5


 


PERSONNEL


 


5.1          Determination of
Personnel Requirements and Recruiting.


 


(a)           Pursuant to the
Transition Services Agreement, those NCN employees that are offered employment
with the Company and accept such employment on the terms and conditions set
forth by the Company (the “NCN Transferred Employees”)
shall not be entitled to receive any severance under Section 5.1(c).  Any employee of NCN who is not offered
employment with the Company or is offered employment with the Company and
declines such employment will be a Terminated Employee as set forth in Section 5.1(c).


 


(b)           Pursuant to the
Transition Services Agreement, those Regal employees that are offered similar
employment with the Company and accept (the “RCM
Transferred Employees”) or decline such employment on the terms and
conditions set forth by the Company shall not be entitled to receive any
severance under Section 5.1(c).  Any
employee of Regal who is not offered similar employment with the Company will
be a Terminated Employee as set forth in Section 5.1(c).


 


(c)           NCN shall bear the
responsibility for any and all obligations to its respective employees that are
terminated, and Regal shall bear the responsibility for any and all obligations
to its respective employees that are terminated and are not offered a similar
position of employment with the Company (collectively, the “Terminated Employees”), arising out of such termination of
such employees and in each case in accordance with NCN’s and Regal’s respective
severance plans adopted in their discretion. 
As set forth in Article 2, as of the Closing Date each of the
Parties shall be deemed to have made a contribution to the Company of an amount
equal to the amount of their respective Termination Expenses (defined below) on
an after-tax basis, which shall include (i) severance equal to two weeks’
salary plus two week’s salary for each year or partial year of employment with
the respective Party, and (ii) any and all costs associated with long-term
incentive payouts, COBRA, outplacement services and unused vacation for each
Terminated Employee (collectively, “Termination Expenses”).


 


17





















 


(d)           All NCN Transferred
Employees and RCM Transferred Employees shall be terminated as employees of NCN
and RCM, respectively, and shall be hired and become employees of the Company
upon expiration or early termination of the Transition Period.  Compensation from the Company for its
employees will not differentiate among employees based on the Party from which
such employee was obtained or whether such employee was hired directly by the
Company.


 


(e)           Notwithstanding Section 5.1(d),
Regal or its Affiliate will adopt a severance plan whereby each RCM Transferred
Employee that has unvested stock options or unvested restricted stock under the
Regal Entertainment Group 2002 Stock Incentive Plan will be entitled to receive
severance equal to the product of (i) the difference between the exercise price, if any, of each unvested
stock option and unvested share of restricted stock outstanding on the day
prior to the expiration of the Transition Period (collectively, “Unexercised Options”)and the average
of the last reported per share sales price of REG common stock for each of the
20 consecutive trading days ending on the last trading day prior to the
expiration of the Transition Period; and (ii) the number of Unexercised
Options.  Regal will be obligated to pay
each RCM Transferred Employee, on the same day as such Unexercised Options
would have vested in such year had they not terminated, that amount of the
severance attributable to those Unexercised Options that would have otherwise
vested during the applicable year, provided such RCM Transferred
Employee is still employed by the Company on such applicable vesting date.  The Company agrees to reimburse Regal $[                   ]
(the “Company Reimbursement Amount”) of Regal’s
aggregate severance obligations to RCM Transferred Employees determined upon
expiration of the Transition Period (the “Aggregate Severance Amount”).  The Company Reimbursement Amount will
represent a percentage of the Aggregate Severance Amount equal to the Company
Reimbursement Amount divided by the Aggregate Severance Amount (the “Company Reimbursement Percentage”).  The Company shall reimburse Regal five (5)
days after Regal makes its severance payments to the RCM Transferred Employees,
in an amount equal to the severance payment made by Regal multiplied by the
Company Reimbursement Percentage.


 


5.2          Non-Solicitation of
Employees.  Each of the Parties agrees that from the date
hereof until the expiration of two years following the date upon which such
Party or one of its Affiliates is no longer a Member of the Company, neither
Party nor any of its Affiliates may hire any current employee of the Company
without the Company’s prior written consent; provided, however,
that this prohibition shall not apply to (i) any employee of a Party who, on an
unsolicited basis, initiates contact with such other Party related to
employment, and (ii) any general advertisement for the solicitation of
employment not specifically directed towards employees of any Party.


 


18





















 


ARTICLE 6


 


COVENANTS


 


6.1          Filings.


 


(a)           Upon the terms and
subject to the conditions set forth in this Agreement, each of the Parties
agrees to use its reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with the
other Parties in doing, all things necessary, proper or advisable to consummate
and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement. 
Each of the Parties hereto will use its reasonable efforts and cooperate
with one another (i) in promptly determining whether any filings are required
to be made or consents, approvals, waivers, permits or authorizations are
required to be obtained (or, which if not obtained, would result in an event of
default, termination or acceleration of any agreement or any put right under
any agreement) under any applicable law or regulation or from any Governmental
Authorities or third parties, including parties to loan agreements or other
debt instruments and including such consents, approvals, waivers, permits or
authorizations as may be required or necessary to transfer any assets and
related liabilities as contemplated by Article 2 and (ii) in promptly
making any such filings, in furnishing information required in connection
therewith and in timely seeking to obtain any such consents, approvals, permits
or authorizations.  Each of the Parties
hereto shall mutually cooperate in order to facilitate the achievement of the
benefits reasonably anticipated from the transactions contemplated hereby.


 


(b)           The Parties hereto
shall respond as promptly as reasonably practicable to any inquiries received
from any Governmental Authority for additional information or documentation and
respond as promptly as reasonably practicable to all inquiries and requests
received from any State attorney general, in connection with the transactions
contemplated hereby.  To the extent a
filing is required under the HSR Act, and if not already so requested or
terminated, the Parties shall request early termination of the waiting periods
under HSR Act.


 


6.2          Agreement to
Cooperate; Further Assurances.


 


(a)           Notwithstanding
anything to the contrary in this Agreement (except with respect to
contributions to be made by the respective Parties hereto as provided in
Sections 2.4 and 2.5), no Party or any of its Affiliates shall be required to
make any disposition, including any disposition of, or any agreement to hold
separate, any Subsidiary, asset or business, and no Party hereto or any of its
Affiliates shall be required to make any payments of money (other than de
minimus payments) nor shall any Party or its Affiliates be required to comply
with any condition or undertaking or take any action which, individually or in
the aggregate, would adversely affect the economic benefits to such Party of
the transactions contemplated hereby and by the other Joint Venture Agreements,
taken as a whole, or adversely effect the business of such Party or its
Affiliates.


 


(b)           In case at any time
before or after the Closing any further action is necessary or desirable to
make any of the contributions provided for by Article 2 (including
obtaining any third party consents) or otherwise to carry out the purposes of
this Agreement, the proper officers and directors of the Company and the
Parties hereto and their respective Affiliates


 


19





















 


shall execute
such further documents (including assignments, acknowledgments and consents and
other instruments of transfer) and shall take such further action as shall be
necessary or desirable to effect such transfer and to otherwise carry out the
purposes of this Agreement, in each case to the extent not inconsistent with
applicable law.


 


(c)           No Party to this Agreement
shall take any action that would result in the conditions set forth in Article 7
not being satisfied at and as of the time of the Closing.  Subject to the terms and conditions hereof,
each of the Parties shall use its reasonable efforts to cause the fulfillment
at the earliest practicable date of all of the conditions to the obligations of
the Parties to consummate the transactions contemplated by this Agreement.  Without limiting the generality of the
foregoing, each Party shall execute and deliver or cause to be executed and
delivered to the Company such reasonable and customary affidavits, certificates
and documentation relating to such Party’s or any of its Subsidiaries’
ownership and title to all Contributed Assets of such Party pursuant to Article 2,
if any, as shall be reasonably required.


 


6.3          Business Plan and
Budget.  The initial Business
Plan and Budget for the Company shall be as set forth in Exhibit B.


 


6.4          Labor Issues.  Each Party shall perform and discharge all
requirements, if any, under the WARN Act or under similar applicable state and
local laws and regulations as a result of actions taken by any Party prior to
Closing.


 


ARTICLE 7


 


CONDITIONS
PRECEDENT TO CLOSING


 


7.1          Conditions Precedent
to Closing.  The respective
obligations of each Party and the Company to consummate the transactions
contemplated by this Agreement to occur at the Closing shall be subject to the
satisfaction or waiver of the following conditions on or prior to the Closing
Date:


 


(a)           no statute, rule,
regulation, executive order, decree, or preliminary or permanent injunction
shall have been enacted, entered, promulgated or enforced by any U.S. state or
federal or foreign court of competent jurisdiction or other Governmental
Authority which prohibits consummation of the transactions contemplated by the
Joint Venture Agreements, whether temporary, preliminary or permanent; provided
that the Parties hereto shall use their reasonable efforts to have any
such order, decree or injunction vacated;


 


(b)           all waiting periods and
other approvals applicable to the transactions contemplated by the Joint
Venture Agreements under the HSR Act, if applicable, shall have been terminated
or expired and all other Governmental Approvals necessary for consummation of
the transactions contemplated by Joint Venture Agreements shall have been
obtained or made and be in effect at the Closing Date, except for any such
Governmental Approvals, the failure of which to obtain or make would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; provided  that no Party shall be required to
commence or defend any Action before any Governmental Authority in order to
satisfy this condition;


 


20





















 


(c)           each of the parties to
each of the Joint Venture Agreements (other than this Agreement) shall have
duly delivered to each of the parties thereto each of the Joint Venture
Agreements (other than this Agreement) to which it is a party;


 


(d)           the representations and
warranties of each other Party and the Company contained in this Agreement that
are qualified as to materiality or words of similar import shall be true and
correct in all material respects, and those not so qualified shall be true and
correct in all respects, in each case, as of the date hereof and as of the
Closing Date as if made at the Closing Date, except for those representations
and warranties which are made as of a specific date, which representations and
warranties shall have been true and correct in all material respects or true
and correct in all respects, as the case may be, as of such date; and


 


(e)           each other party hereto
shall have performed or complied with in all material respects each covenant
and agreement required in this Agreement to be performed by it at or prior to
the Closing.


 


7.2          Waiver of Conditions
Precedent.  By proceeding on the
Closing Date and consummating the Closing, each Party shall be deemed
conclusively to have accepted or waived fulfillment of all such conditions and
receipt of all such deliverables, unless written notice to the contrary is
provided to the other Parties at such time.


 


ARTICLE 8


 


TERMINATION;
SURVIVAL


 


8.1          Termination.


 


(a)           This Agreement may be
terminated at any time prior to the Closing by:


 


(i)            the
mutual written consent of the Parties;


 


(ii)           any
Party, by giving written notice of such termination to the other Party, if the
other Party shall have materially breached any of its representations or
warranties or breached any of its material obligations or agreements under this
Agreement and such breach has not been cured within 30 days following the
delivery of such written notice by a non-breaching Party to the breaching
Party;


 


(iii)          any
Party, if (A) any Governmental Authority, the receipt of a Governmental
Approval from which is a condition precedent to the consummation of the
Closing, shall have determined not to grant any such Governmental Approval (or
imposes conditions with respect thereto such that the condition precedent set
forth in Section 7.1(b) is incapable of being satisfied) and all appeals
of such determination shall have been taken and have been unsuccessful, (B) any
U.S. state or federal or any foreign court of competent jurisdiction shall have
issued an order, judgment or decree (other than a temporary restraining order
or a preliminary injunction) restraining, enjoining or otherwise prohibiting
the transactions contemplated hereby and such order, judgment or decree shall
have become final and nonappealable or (C) any Governmental Authority shall
have


 


21





















 


enacted, entered or promulgated any statute, rule, regulation,
executive order or decree prohibiting the consummation of the transactions
contemplated by the Joint Venture Agreements; (the events in clauses (A), (B)
or (C), a “Governmental Event”);
provided  that, in the case of clauses (B) and (C), the
terminating Party shall have complied with its obligations pursuant to the
proviso set forth in Section 7.1(a); or


 


(iv)          any
Party, if the Closing has not occurred by April 30, 2005; provided, however, that the
right to terminate under this Section 8.1(a)(iv) shall not be available to
any Party whose failure to fulfill any obligation under this Agreement or any
other Joint Venture Agreement has been the cause of, or resulted in, the
failure of the Closing to occur on or before such date.


 


(b)           This Agreement shall
automatically terminate at any time after the Closing if the Company is fully
and finally dissolved, liquidated or terminated pursuant to the terms of the
Company Operating Agreement.


 


(c)           In the event of a
termination of this Agreement as provided in Section 8.1(a) and 8.1(b),
this Agreement shall forthwith become null and void, except for this Section 8.1(c)
and Sections 5.1, 5.2, 9.1, 9.5, 9.6, 9.7, 9.9, 9.10, 9.11 and 9.13, which
shall survive the termination and there shall be no liability on the part of
any Parties hereunder, except for any breach of any representation, warranty,
covenant or agreement occurring prior to such termination.


 


8.2          Survival.  Subsequent
to the Closing, all representations, warranties, conditions, covenants and
obligations set forth in this Agreement shall survive the Closing indefinitely,
except for those conditions, covenants and obligations, which by their terms
are required to be performed on or before Closing, or, which, in the case of
covenants and obligations, by their terms survive Closing for any shorter
period specified herein.


 


ARTICLE 9


 


OTHER


 


9.1          Injunctive
Relief.  The Parties hereto
acknowledge and agree that a violation of any of the terms of this Agreement
will cause the other Parties hereto irreparable injury for which an adequate
remedy at law is not available. 
Accordingly, it is agreed that each of the Parties hereto will be
entitled to an injunction, restraining order or other equitable relief to
prevent breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any court of competent
jurisdiction, in addition to any other remedy to which they may be entitled at
law or in equity.


 


9.2          Obligations of the
Company.  The Company shall be
the sole party liable for its obligations hereunder and under the other Joint
Venture Agreements to which it is a party, and neither the Parties nor any
Founding Member will have any liability to the Company or any other Person with
respect to such liabilities of the Company.


 


9.3          Amendments.  Except as specifically provided otherwise
herein, this Agreement may be amended only by a written instrument signed by
each of the Parties and the Company.


 


22





















 


9.4          Binding Effect;
Assignment.  This Agreement shall
be binding upon and shall inure to the benefit of the Parties, the Company and
their respective successors and permitted assigns, in accordance with the terms
hereof.  No Party or the Company may
assign this Agreement without the prior written consent of the other parties
except that any Party may, in its sole discretion, assign its rights under this
Agreement to a wholly owned Subsidiary or a direct or indirect parent entity of
such Party; provided  that no assignment shall in any way affect a
Party’s obligations or liabilities under this Agreement.  Any assignment or attempted assignment in
violation of this Agreement shall be null and void.


 


9.5          Notices.  Any written notice required or permitted to
be delivered pursuant to this Agreement shall be in writing and shall be deemed
delivered:  (a) upon delivery if
delivered in person; (b) upon transmission if sent via telecopier, with electronic
confirmation of receipt; (c) one Business Day after deposit with a nationally
recognized courier service, provided  that confirmation of such
delivery is received by the sender; and (d) upon transmission if sent via
e-mail, with a confirmation copy sent via telecopier, with electronic
confirmation of receipt on the same day, in each case addressed to the
following addresses:


 


	
  To NCN:

  	
  National Cinema Network, Inc.

  
	
   

  	
  920 Main Street

  
	
   

  	
  Kansas City, Missouri  64105

  
	
   

  	
  Attention: Craig Ramsey, Chief Financial
  Officer

  
	
   

  	
  Telecopy: (816) 480-2517

  
	
   

  	
  Telephone: (816) 480-2546

  
	
   

  	
  E-mail: cramsey@amctheatres.com

  
	
   

  	
   

  
	
   

  	
  with copies (which shall not itself
  constitute notice hereunder) to:

  
	
   

  	
   

  
	
   

  	
  National Cinema Network, Inc.

  
	
   

  	
  920 Main Street

  
	
   

  	
  Kansas City, Missouri  64105

  
	
   

  	
  Attention: Kevin Connor, General Counsel

  
	
   

  	
  Telecopy: (816) 480-4700

  
	
   

  	
  Telephone: (816) 480-2506

  
	
   

  	
  E-mail: kconnor@amctheatres.com

  
	
   

  	
   

  
	
   

  	
  Latham & Watkins LLP

  633 West 5th Street, Suite 4000

  Los Angeles, CA  90071

  
	
   

  	
  Attention: 
  Richard L. Wirthlin

  
	
   

  	
  Telecopy: 
  (213) 891-8763

  
	
   

  	
  Telephone: 
  (213) 485-1234

  
	
   

  	
  E-mail: richard.wirthlin@lw.com

  



 


23





















 


	
  To Regal:

  	
  Regal CineMedia Corporation

  
	
   

  	
  9110 E. Nichols Avenue, Suite 200

  
	
   

  	
  Centennial, CO  80112

  
	
   

  	
  Attention: Kurt Hall, Chief Executive
  Officer

  
	
   

  	
  Telecopy: 
  (303) 792-8649

  
	
   

  	
  Telephone: (303) 792-8788

  
	
   

  	
  E-mail: Kurt.Hall@regalcinemedia.com

  
	
   

  	
   

  
	
   

  	
  with copies (which shall not itself
  constitute notice hereunder) to:

  
	
   

  	
   

  
	
   

  	
  Regal CineMedia Corporation

  
	
   

  	
  9110 E. Nichols Avenue, Suite 200

  
	
   

  	
  Centennial, CO  80112

  
	
   

  	
  Attention: Gene Hardy, General Counsel

  
	
   

  	
  Telecopy: 
  (303) 792-8649

  
	
   

  	
  Telephone: (303) 792-8630

  
	
   

  	
  E-mail: Gene.Hardy@regalcinemedia.com

  
	
   

  	
   

  
	
   

  	
  Hogan & Hartson L.L.P.

  One Tabor Center, Suite 1500

  1200 Seventeenth St.

  Denver, CO 80202

  
	
   

  	
  Attention: Christopher J. Walsh

  
	
   

  	
  Telecopy: (303) 899-7333

  
	
   

  	
  Telephone: (303) 899-7300

  
	
   

  	
  E-mail: cjwalsh@hhlaw.com

  
	
   

  	
   

  
	
  The Company:

  	
  National CineMedia, LLC

  
	
   

  	
  9110 E. Nichols Avenue, Suite 200

  
	
   

  	
  Centennial, CO  80112

  
	
   

  	
  Attention: Kurt Hall

  
	
   

  	
  Telecopy: 
  (303) 792-8649

  
	
   

  	
  Telephone: (303) 792-8788

  
	
   

  	
  E-mail: As so notified from time to time

  
	
   

  	
   

  
	
   

  	
  with copies (which shall not itself
  constitute notice hereunder) to:

  
	
   

  	
   

  
	
   

  	
  National CineMedia, LLC

  
	
   

  	
  9110 E. Nichols Avenue, Suite 200

  
	
   

  	
  Centennial, CO  80112

  
	
   

  	
  Attention: Gene Hardy

  
	
   

  	
  Telecopy: 
  (303) 792-8649

  
	
   

  	
  Telephone: (303) 792-8630

  
	
   

  	
  E-mail: As so notified from time to time 

  



 


24





















 


	
   

  	
  Hogan & Hartson L.L.P.

  One Tabor Center, Suite 1500

  1200 Seventeenth St.

  Denver, CO 80202

  
	
   

  	
  Attention: Christopher J. Walsh

  
	
   

  	
  Telecopy: (303) 899-7333

  
	
   

  	
  Telephone: (303) 899-7300

  
	
   

  	
  E-mail: cjwalsh@hhlaw.com

  
	
   

  	
   

  
	
   

  	
  Latham & Watkins LLP

  633 West 5th Street, Suite 4000

  Los Angeles, CA  90071

  
	
   

  	
  Attention: 
  Richard L. Wirthlin

  
	
   

  	
  Telecopy: 
  (213) 891-8763

  
	
   

  	
  Telephone: 
  (213) 485-1234

  
	
   

  	
  E-mail: 
  richard.wirthlin@lw.com

  



 


or to such
other address as may be specified by any Party or the Company upon notice given
to each of the other Parties and the Company.


 


9.6          Integration.  This Agreement together with the other Joint
Venture Agreements and the documents referred to herein or therein, or
delivered pursuant hereto or thereto, contain the exclusive entire and final
understanding of the Parties and the Company with respect to the subject matter
hereof and thereof.  There are no
agreements, representations, warranties, covenants or undertakings with respect
to the subject matter hereof and thereof other than those expressly set forth
herein and therein.  This Agreement
together with the other Joint Venture Agreements supersede all other prior
discussions, negotiations, communications, agreements and understandings
between the Parties and the Company with respect to such subject matter hereof
and thereof, in each case including, but not limited to, all schedules and
exhibits to such other prior agreements, etc. and other documents delivered in
connection therewith.  No Party or the
Company has relied on any statement, representation, warranty, or promise not expressly
contained in this Agreement or another Joint Venture Agreement in connection
with this transaction.


 


9.7          Severability.  If one or more of the provisions, paragraphs,
words, clauses, phrases or sentences contained herein, or the application
thereof in any circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, then such provision, paragraph, word, clause, phrase or
sentence shall be deemed restated to reflect the original intention of the
parties as nearly as possible in accordance with applicable law and the
remainder of this Agreement.  The
validity, legality and enforceability of any such provision, paragraph, word,
clause, phrase or sentence in every other respect and of the remaining
provisions, paragraphs, words, clauses, phrases or sentences hereof will not be
in any way impaired, it being intended that all obligations, rights, powers and
privileges of the Parties and the Company hereto will be enforceable to the
fullest extent permitted by law.  Upon
such determination of invalidity, illegality or unenforceability, the Parties
and the Company hereto shall negotiate in good faith to amend this Agreement to
effect the original intent of the Parties and the Company.


 


25





















 


9.8          Counterparts.  This Agreement may be executed in one or more
counterparts and by each of the Parties and the Company on separate
counterparts, each of which will be deemed an original, but all of which will
constitute one and the same instrument.  The
Parties and the Company agree that this Agreement shall be legally binding upon
the electronic transmission, including by facsimile or email, by each Party and
the Company of a signed signature page hereof to the other Party and the
Company.


 


9.9          Governing Law;
Submission to Jurisdiction.


 


(a)           This Agreement is to be
construed in accordance with and governed by the internal laws of the State of
Delaware without giving effect to any choice of law rule that would cause the
application of the laws of any jurisdiction other than the internal laws of the
State of Delaware to the rights and duties of the Parties and the Company.


 


(b)           Each Party and the
Company hereto agree that any legal action or other legal proceeding relating
to this Agreement or the enforcement of any provision of this Agreement shall
be brought or otherwise commenced exclusively in any state or federal court
located in New York, New York.  Each of
Regal, NCN and the Company thereto:


 


(i)            expressly
and irrevocably consents and submits to the jurisdiction of each state and
federal court located in New York, New York (and each appellate court located
in the State of New York) in connection with any such legal proceeding,
including to enforce any settlement, order or award;


 


(ii)           consents
to service of process in any such proceeding in any manner permitted by the
laws of the State of New York, and agrees that service of process by registered
or certified mail, return receipt requested, at its address specified pursuant
to Section 9.5 is reasonably calculated to give actual notice;


 


(iii)          agrees
that each state and federal court located in New York, New York shall be deemed
to be a convenient forum;


 


(iv)          waives
and agrees not to assert (by way of motion, as a defense or otherwise), in any
such legal proceeding commenced in any state or federal court located in New
York, New York, any claim that such party is not subject personally to the
jurisdiction of such court, that such legal proceeding has been brought in an
inconvenient forum, that the venue of such proceeding is improper or that this
Agreement or the subject matter hereof or thereof may not be enforced in or by
such court; and


 


(v)           agrees
to the entry of an order to enforce any resolution, settlement, order or award
made pursuant to this Section by the state and federal courts located in
New York, New York and in connection therewith hereby waives, and agrees not to
assert by way of motion, as a defense, or otherwise, any claim that such
resolution, settlement, order or award is inconsistent with or violative of the
laws or public policy of the laws of the State of New York or any other
jurisdiction.


 


(c)           In the event of any
action or other proceeding relating to this Agreement or the enforcement of any
provision of this Agreement, the prevailing party (as determined by the


 


26





















 


court) shall
be entitled to payment by the non-prevailing party of all costs and expenses
(including reasonable attorneys’ fees) incurred by the prevailing party,
including any costs and expenses incurred in connection with any challenge to
the jurisdiction or the convenience or propriety of venue of proceedings before
any state or federal court located in New York, New York.


 


9.10        Expenses.  Except as otherwise set forth in this
Agreement (including below) or in any other written agreement among the
Parties, whether or not the transactions contemplated by this Agreement are
consummated, all legal and other costs and expenses incurred by each respective
Party in connection with this Agreement and the transactions contemplated
hereby shall be paid by such respective Party, provided that the following
costs shall be shared equally by each Party: 
(a)  Deloitte & Touche LLP’s technology assessment and business
valuation analysis, (b) legal fees to the law firm of Wachtell, Lipton, Rosen
& Katz, and (c) any associated HSR filing fees.


 


9.11        Confidentiality.


 


(a)           Each Party agrees that
from the date of this Agreement until the third anniversary of the earlier of
the termination or the Closing of this Agreement, (i) it shall use and
cause its Affiliates to use the same degree of care it uses to safeguard its
own Confidential Information (as defined below) and to cause its and its
Affiliates’ directors, officers, employees, agents and representatives to keep
confidential all Confidential Information, including but not limited to
Intellectual Property and other Proprietary Information, of the other Party and
the Company, and (ii) it shall hold and shall cause its Affiliates to hold
and shall cause its and its Affiliates’ directors, officers, employees, agents
and representatives to hold in confidence, unless compelled to disclose by
judicial or administrative process or, in the opinion of counsel, by the
requirements of law, all documents and information concerning any other Party
hereto furnished it by such other Party or its representatives in connection
with the transactions contemplated by this Agreement (together with the
information referred to in clause (i) above, the “Confidential Information”), except to the extent that any
such information can be shown to have been (A) previously known by the Party to
which it is furnished lawfully and without breaching or having breached an
obligation of such Party or the disclosing party to keep such documents and
information confidential, (B) in the public domain through no fault of the
disclosing party, or (C) independently developed by the disclosing party
without using or having used the Confidential Information.


 


(b)           From the Closing Date
until the third anniversary thereof, the Company will preserve the
confidentiality of all Confidential Information supplied by the Parties and
their Affiliates (“Party Information”)
to the same extent that a Party must preserve the confidentiality of
Confidential Information pursuant to Sections 9.11(a).


 


(c)           From the Closing Date
until the third anniversary thereof, Party Information will not be supplied by
the Company or its Subsidiaries to any Person who is not an employee of the
Company, including any employee of a Party or any member of the Board who is
not an employee of the Company. 
Notwithstanding the foregoing, Party Information may be disclosed to
authorized third-party contractors of the Company if the Company determines
that such disclosure is reasonably necessary to further the business of the
Company, and if such contractor executes a non-disclosure agreement preventing
such contractor from disclosing such


 


27





















 


Party
Information for the benefit of each provider of Party Information in a form
reasonably acceptable to the Party. 
Party Information disclosed by any Party to the Company will not be
shared with any other Party without the disclosing party’s prior written
consent.


 


9.12        Publicity.  No press release or
announcement concerning the transactions contemplated hereby shall be issued by
any Party without the prior written consent of the other Party, except as such
release or announcement may be required by law, rule or regulation of one or
more stock exchanges or automated quotation systems, including the NYSE or
NASDAQ, in which case the Party required to make the release or announcement
shall allow the other Party reasonable time to comment on such release or
announcement in advance of such issuance or filing.


 


9.13        Indemnification.


 


(a)           NCN
shall indemnify and hold harmless Regal, and its Subsidiaries, Affiliates,
officers, directors, trustees, members, partners, employees, agents, and any of
their heirs, executors, successors and assigns (other than the Company)
(collectively, the “NCN Indemnitees”)
from and against any and all losses, claims, demands, costs, damages,
liabilities, expenses of any nature (including attorneys’ fees and
disbursements), judgments, fines, settlements and other amounts arising from
any and all claims, demands, actions, suits or proceedings, whether civil,
criminal, administrative, arbitral or investigative, in which any NCN
Indemnitee was involved or may be involved, or threatened to be involved, as a
party or otherwise, arising out of, in connection with or relating to any
breaches of any of NCN’s representations, warranties, covenants or agreements
set forth in this Agreement (collectively, the “NCN Liabilities”), and
disregarding for purposes of this Section 9.13(a), all qualifications and
exceptions contained in this Agreement and the Schedules and Exhibits hereto
relating to materiality (including Material Adverse Effect)); provided  that NCN shall not be liable for any
NCN Liabilities arising out of, in connection with or relating to any of NCN’s
representations, warranties, covenants or agreements set forth in this
Agreement unless and until the amount of the aggregate of all such NCN
Liabilities sustained or incurred by the NCN Indemnitees, together with any
liabilities incurred by NCN Indemnitees under Section 6.1 of the Software
License Agreement, exceeds $500,000,
and then only for the aggregate amounts that exceed $500,000; and provided
further that notwithstanding any
provision of this Agreement or any other Joint Venture Agreement to the
contrary, the indemnification obligations of NCN under this Section 9.13(a),
together with any indemnification obligations of NCN or its Affiliate under Section 6.1
of the Software License Agreement,
shall not exceed an aggregate amount of $5,000,000.


 


(b)           Regal shall indemnify and hold harmless
NCN and its Subsidiaries, Affiliates, officers, directors, trustees, members,
partners, employees, agents, and any of their heirs, executors, successors and
assigns (other than the Company) (collectively, the “Regal
Indemnitees”) from and against any and all losses, claims,
demands, costs, damages, liabilities, expenses of any nature (including
attorneys’ fees and disbursements), judgments, fines, settlements and other
amounts arising from any and all claims, demands, actions, suits or
proceedings, whether civil, criminal, administrative, arbitral or
investigative, in which any Regal Indemnitee was involved or may be involved,
or threatened to be involved, as a party or otherwise, arising out of, in
connection with or relating to any breaches of any of Regal’s representations,
warranties, covenants or agreements set forth in this Agreement (collectively,
the “Regal


 


28





















 


Liabilities”), and
disregarding for purposes of this Section 9.13(b), all qualifications and
exceptions contained in this Agreement and the Schedules and Exhibits hereto
relating to materiality (including Material Adverse Effect)); provided  that Regal shall not be liable for
any Regal Liabilities arising out of, in connection with or relating to any of
Regal’s representations, warranties, covenants or agreements set forth in this
Agreement unless and until the amount of the aggregate of all such Regal
Liabilities sustained or incurred by the Regal Indemnitees, together with any
liabilities incurred by Regal Indemnitees under Section 6.1 of the
Software License Agreement, exceeds $500,000,
and then only for the aggregate amounts that exceed $500,000; and provided
further that notwithstanding any
provision of this Agreement or any other Joint Venture Agreement to the
contrary, the indemnification obligations of Regal under this Section 9.13(b),
together with any indemnification obligations of Regal or its Affiliate under Section 6.1
of the Software License Agreement, shall
not exceed an aggregate amount of $5,000,000.


 


(c)           The Parties
shall have no liability (for indemnification or otherwise) with respect to any
representation or warranty, covenant or obligation to be performed and complied
with prior to the Closing Date, unless on or before the date that is twelve
(12) months after the Closing Date, the indemnified party notifies the
indemnifying party of a claim specifying the factual basis of that claim in
reasonable detail to the extent then known.


 


[Signature Page to Follow]


 


29





















 


IN WITNESS WHEREOF, each of the undersigned
has executed this Agreement or caused this Agreement to be executed on its
behalf as of the date first written above.


 


 


	
   

  	
  NATIONAL
  CINEMA NETWORK, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  REGAL
  CINEMEDIA CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NATIONAL
  CINEMEDIA, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Regal
  CineMedia Holdings, LLC

  
	
   

  	
  Its:

  	
  Member

  
	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  By:

  	
  National
  Cinema Network, Inc.

  
	
   

  	
  Its:

  	
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
								



 





















 


Schedule 2.4(a)


 


NCN Assumed Liabilities and NCN Contributed
Assets


 





















 


Schedule 2.5(a)


 


Regal Assumed Liabilities and Regal
Contributed Assets


 





















 


Schedule 4.1(c)


 


Conflicts, Government Approvals and Notices


 





















 


Schedule 4.1(e)


 


Invalid Contributed Assets


 





















 


Schedule 4.2(d)


 


Capitalization


 





















 


Exhibit A


 


Certificate
of Formation


 


2





















 


Exhibit B


 


Business
Plan and Budget