Exhibit
10.18


 


Confidential treatment has been requested for
portions of this exhibit. The copy filed herewith omits the information subject
to the confidentiality request. Omissions are designated as [***]. A complete
version of this exhibit has been filed separately with the Securities and
Exchange Commission.


 


SECOND
AMENDED AND RESTATED

REALD SYSTEM LICENSE AGREEMENT (2010)


 


This Second Amended and Restated RealD System
License Agreement (2010) (the “Agreement”)
is entered into as of May 9, 2010 and is effective as of April 7,
2010 (the “Effective Date”), by and between RealD Inc., a company incorporated
under the laws of the State of Delaware, and having a principal place of
business at 100 North Crescent Drive, Suite 120, Beverly Hills, California
90210 (“RealD”), and American
Multi-Cinema, Inc., a company incorporated under the laws of the State of
Missouri and having a principal place of business at 920 Main Street, Kansas
City, Missouri 64105 (“Licensee”).


 


RECITALS


 


WHEREAS, RealD owns
certain equipment and related proprietary rights evidenced by, associated with,
embodied in, or related to, a 3-D cinema system for the delivery of premium 3-D
content, including RealD projector add-ons, the related equipment, software and
other proprietary rights described on Schedule A hereto, and certain
upgrades described herein (collectively, and inclusive where applicable
hereunder of the RealD XL Cinema System and the lens assembly for use in the
single projection system described further in and subject to Schedule A
hereto, the “RealD System”);


 


WHEREAS, Licensee,
through itself and its subsidiaries, is the operator of theatre venues
primarily in the United States, Canada and the European Union (collectively,
the “Territory”), and wishes to
obtain the right to use the RealD System in certain of such theatre venues; and


 


WHEREAS, Licensee and
RealD previously entered into that certain RealD 1.0 System License Agreement
dated as of September 2005 (the “Prior
License Agreement”), Restated RealD System License Agreement (2009)
dated February 20, 2009 (the “First
Restated Agreement”), Amendment to Restated RealD System License
Agreement (2009) and Prior License Agreement dated July 20, 2009 (the “Amendment”), Second Amendment to Restated
RealD System License Agreement (2009) dated February 18, 2010 (the “Second Amendment”) and the Proposal dated April 7,
2010 (the “Proposal”), and now,
subject to certain conditions precedent contained below, wish to terminate the
Prior License Agreement, the First Restated Agreement, the Amendment, the
Second Amendment and the Proposal and enter into the Agreement as provided
herein.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the mutual
promises set forth herein and for other good and adequate consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:


 


1.             GRANT OF RIGHTS


 


1.1           License of RealD System.  Subject to the terms and conditions provided
herein (including the consideration payable pursuant to Section 5
hereof), RealD hereby grants to Licensee the right and license to use a RealD
System at each auditorium (individually, an “Auditorium” and, collectively, the “Auditoriums”) listed on Schedule 1.1
hereto (each an “Equipment Schedule”),
as updated by the parties from time to time to reflect additional installations
of RealD Systems.  The theatre venues
(e.g., a multiplex theatre) at which the Auditoriums are located (each, a “Location”) are also specified on Schedule
1.1.  More than one Auditorium may be
located at one Location.  When the
installation of a RealD System at an Auditorium is complete in accordance with Section 2.1
(“Installation Date”), Schedule
1.1 shall be updated by the parties to reflect such Installation Date.  The parties may add additional RealD System(s) under
the terms of this Agreement, by mutual agreement, by 


 


1

















 


adding the Auditorium(s),
Location(s) and other information required by Schedule 1.1 for the
additional Auditorium(s) to Schedule 1.1, and initialing and dating
such updated Schedule 1.1 as of the applicable Installation Date(s) for
such Auditorium(s).


 


1.2           Lease of RealD Equipment.  Subject to the terms and conditions provided
herein (including the consideration payable pursuant to Section 5
hereof), RealD leases to Licensee the RealD equipment and personal property
described on Schedule A (together with any replacement parts,
replacements, additions, modifications and repairs incorporated therein and/or
affixed thereto, individually or collectively, from time to time (the “Equipment”).  For purposes of clarification, the Equipment
shall specifically also include each upgrade to the software and hardware
described on Schedule A that a reasonable person would determine affects
the viewing experience of the general public or that otherwise enhances the
reliability or operation of the Equipment (“Upgrade(s)”).


 


1.3           Licensee Requirements.  [***]


 


1.4           Limitations on Use of RealD  System. [***] in each
case conditioned by proprietary RealD software (or other software approved by
RealD) (“Ghostbusting”).  RealD and Licensee agree to use commercially
reasonable efforts to ensure that all such 3D Shows have been conditioned by
such Ghostbusting software or another method of RealD conditioning in the
projector, server or separate processor approved in each case by RealD.  For purposes of (a) above, “feature
presentation” means content that is exhibited more than three (3) showings per
day, and for a period in excess of one (1) week. 


 


1.5           [***]


 


2.             INSTALLATION, MAINTENANCE,
SUPPORT AND UPGRADES


 


2.1           Installation.  After the Screen and the Port Glass have been
installed pursuant to Section 1.3 above, RealD shall install, or
designate a qualified contractor to install (in each case at the sole cost and
expense of RealD), the RealD Systems and Equipment at each Auditorium at such
times as mutually agreed by the parties. 
Any third party contractor selected by RealD to perform such
installation shall be subject to the approval of Licensee, which approval shall
not be unreasonably withheld.  Upon
completion of the installation of the Equipment at an Auditorium, RealD, or its
designated contractor, 


 


2

















 


shall, in coordination with,
and under the supervision of, Licensee’s technical services personnel, test the
RealD System to ensure the operability of the RealD System in accordance with
the applicable specifications of the RealD System.


 


2.2           Maintenance, Support and
Upgrades.  RealD
shall, during mutually agreed hours (and at the sole cost and expense of
RealD), maintain and support the RealD System at each Auditorium to ensure that
the RealD System is fully functional and operational.  RealD shall promptly respond to Licensee’s
request for maintenance and support in a timely manner.  RealD shall promptly perform all software
Upgrades as such Upgrades are released and shall promptly notify Licensee of
hardware Upgrades, if any, and promptly perform such hardware Upgrades at such
times as are mutually agreeable to the parties. 
For purposes of this Section 2.2, the parties acknowledge
and agree that (a) a service response by RealD within four (4) hours
of receipt of a service call from Licensee shall be deemed to be response in a
timely manner, and (b) response in a timely manner may change as a result
of the standards set from time to time by the industry group Digital Cinema
Initiatives, LLC.


 


2.3           Obligations of Licensee.  Licensee shall at all times operate the RealD
System in substantial compliance with the instructions and training (if
necessary) provided by RealD, and shall use each item of Equipment (other than
Screens) solely in connection with the RealD System and solely for its intended
purpose.  Licensee shall not make any
alterations, additions or improvements to the RealD System without the prior
written consent of RealD (which may be withheld in its sole and absolute
discretion).  Licensee shall not remove
any labels or notices of ownership placed on the RealD System by RealD without
the prior written consent of RealD, which may be withheld in its sole and
absolute discretion.  Licensee shall not
move or otherwise relocate the RealD System without the prior written consent
of RealD, which shall not be unreasonably withheld or delayed.  Programming decisions shall remain exclusively
with Licensee, and nothing in this Agreement shall create an obligation on
Licensee to exhibit all or any theatrical releases available in 3D.


 


2.4           Approval of Location.  Licensee shall not use all or any part of the
RealD system or the Equipment at any location or auditorium that is not
approved by RealD, which approval shall not be unreasonably withheld or
delayed.


 


3.             RELATED PRODUCTS AND
SERVICES


 


3.1           RealD Glasses.  Licensee acknowledges and understands that an
integral part of the RealD System is the stereoscopic glasses sold or approved
by RealD to be worn for viewing the 3D Shows. 
Licensee shall not distribute to patrons glasses, or other stereoscopic
viewing materials, other than RealD Glasses (as defined below), for use in
viewing a 3D Show with the RealD System. 
[***] (“Guidelines”), and
Licensee shall comply with such Guidelines in all material respects, including
the Guidelines included therein relating to the washing and care of such [***]


 


3

















 


[***].  For purchases of RealD Glasses by Licensee, (a) Licensee
shall pay [***], (b) Licensee shall place orders for RealD Glasses as soon
as practicable prior to the required delivery date, and (c) RealD shall
deliver all orders of RealD Glasses in accordance with the Licensee’s
requirements; provided, that RealD shall not be responsible for delays or
failures of delivery due to circumstances not within the reasonable control of
RealD.  Licensee may return surplus
generic RealD Glasses (in their original unopened packaging) to RealD, in
return for a credit in the amount paid by Licensee
for such glasses.


 


4.             MARKETING


 


4.1           Press Launch.  RealD may engage in a press launch approved
by Licensee, such approval not to be unreasonably withheld, for the opening of
the RealD System at each Location, and Licensee agrees to cooperate with RealD
(at the sole cost and expense of RealD), in connection with such press launch,
including making each Location available for press conferences and related
events at mutually agreed times. 
Licensee agrees to issue a joint press release with RealD, in a form and
substance that has been mutually agreed to by RealD and Licensee, in connection
with each significant event related to the transactions contemplated by this
Agreement.


 


4.2           Ongoing Promotion.  Each party may promote its relationship with
the other party in advertising, promotional and marketing materials approved by
the other party, [***].  Each party
agrees to comply with the other party’s guidelines, which the other party may
reasonably request from time to time with respect to the use of the other party’s
name or logo.  Each party agrees (i) that
it will not acquire rights to any of the other party’s trade names, trademarks,
logos (other than as set forth herein), goodwill or other form of intellectual
property of the other party, and (ii) not to use the other party’s
trademarks, trade names, logos (other than as set forth herein), goodwill or
other form of intellectual property of the other party, except as provided in
this Agreement or with the prior written consent of the other party.


 


4.3           Marketing Cooperation.  Licensee and RealD shall endeavor to mutually
agree on the marketing and promotional efforts for the 3D Shows and the RealD
System.  RealD acknowledges that Licensee
has no obligation to engage in any specific promotional activities, and that
both in-theatre or on-screen advertising will be subject to Licensee’s
pre-existing agreement with National CineMedia, L.L.C.


 


5.             FINANCIAL TERMS


 


5.1           Royalties and License Fees.


 


(a)           [***] For each paid admission to a 3D
Show at each Auditorium [***] that is then using the RealD System, excluding
any paid admission for which Licensee refunds the price therefore (each, a “[***]”),
Licensee will pay to RealD a royalty [***]


 


(b)           With respect to each Location [***]
which has [***] Auditoriums that is then using a RealD System (each such
Location, an [***]


 


4

















 


[***]


 


(c)           [***]


 


(1)           [***]


 


(2)           [***]


 


(d)           [***] Each of Licensee and RealD acknowledges and agrees that, in no event, and
at no time, shall [***]


 


5

















 


5.2           Reports and Payments.  Within [***] (“Play Month”), Licensee shall provide RealD with a report showing
the number of [***].  Within [***] days thereafter, RealD shall invoice Licensee for such Play Month [***] in
accordance with such report.  Payment in
full of any amounts due will be made within [***] days of the date of such invoice.


 


5.3           Audit Rights. 
Licensee shall maintain for [***] years after the expiration of each calendar year
during the Term and for [***] years
after termination of this Agreement, complete and accurate records of all
reports which may give rise to a payment obligation under this Agreement during
the [***] immediately preceding calendar
years.  RealD shall have the right to
inspect, at RealD’s expense (except as provided below) and upon reasonable
prior written notice to Licensee and during normal business hours, the records
of Licensee upon which Licensee’s Paid Admissions and Royalty calculations are
based.  Such inspection shall be
conducted in a manner that does not interfere with Licensee’s operations.  Notwithstanding the foregoing, RealD shall be
permitted to exercise the foregoing inspection right not more than one time per
calendar year.  Any information obtained
by RealD as a result of such inspection shall be held in strict confidence by
RealD, except in litigation between the parties. In the event such audit
reveals an underpayment to RealD, then Licensee shall promptly pay RealD the
amount of such underpayment. [***]


 


5.4           Duties and Taxes. 
[***]


 


5.5           Transmission of Payments.  All payments to be made to RealD pursuant to
this Agreement shall be transmitted by electronic funds transfer (“EFT”) to an account designated by
RealD.  Any EFT, wire transfer or other
transaction fees incurred in connection with the payment or transmittal of
funds by Licensee shall be paid by Licensee and shall not be deducted from
amounts payable to RealD under this Agreement.


 


5.6           Late Fee. 
In the event that any payment required under this Agreement is not paid
within [***] days after the date when such
payment is due, a late charge equal to [***] of the payment then due may be added to such payment by RealD and shall be
paid concurrently with the overdue payment.


 


5.7           Stock Option Grant.  Upon execution of this Agreement, RealD shall
provide documentation (in the form of Exhibit A) to Licensee that
evidences the amended grant, pursuant to this Section 5.7, to Licensee
of an option to purchase 815,187 shares of Common Stock of RealD previously
granted to Licensee pursuant to that certain Nonqualified Stock Option Grant
dated March 20, 2009 and 


 


6

















 


related
stock option agreement (the “Option”).  The Option shall have an exercise price of
U.S. $0.01 per share, and shall have a term of ten (10) years.  [***]


 


5.8           [***]


 


6.             OWNERSHIP AND PROPRIETARY RIGHTS


 


6.1           Ownership of RealD System.  Notwithstanding anything to the contrary
expressed or implied in this Agreement or otherwise, and regardless of whether
the RealD System may become affixed or attached at the Auditorium or other
property, RealD retains all right, title and interest in and to the RealD
System and the Equipment, including without limitation all intellectual
property rights associated therewith and any developments or improvements
arising therefrom.  Licensee shall have
no right, title or interest in the RealD System or the Equipment, or any
intellectual property or other rights associated therewith or any developments
or improvements arising therefrom, other than those that are expressly licensed
pursuant to the terms of this Agreement. 
While the RealD System and the Equipment is within its possession, Licensee
shall keep the RealD System, including the Equipment, free and clear of all
liens, encumbrances and charges of any nature caused by Licensee.  Upon request of RealD and at RealD’s cost,
Licensee shall mark the RealD System and the Equipment to indicate the nature
of Licensee’s interest therein.  The
RealD System and the Equipment is, and at all times shall remain, the personal
property of RealD.  Licensee shall not
permanently affix or attach the RealD System or the Equipment to any real
property or permanent improvement thereon. 
For the avoidance of doubt, the RealD System does not include the
Screen, the Port Glass or any digital projection system to which it may be
attached.


 


6.2           License Restrictions.  Except as otherwise expressly provided in
this Agreement, RealD grants, and Licensee obtains, no rights, title or other
interest, express, implied, or by estoppel, in the RealD System, the Equipment
or any proprietary rights of RealD, and Licensee shall have no right, and
specifically agrees not to (i) copy, display, transfer, adapt, modify,
distribute or reproduce, in any manner, and whether in tangible or intangible
form, the RealD System, the Equipment or any part or 


 


7

















 


component
of either, (ii) decompile, decrypt, reverse engineer, disassemble or
otherwise determine, attempt to determine or reduce the software contained in
the RealD System to human-readable form; (iii) modify or create derivative
works of any portion of the RealD System; (iv) except as provided in Section 10.1,
sublease, sublicense, transfer or assign any part of the RealD System or the
Equipment; or (v) modify or remove any part of the RealD System, or use
any firmware, middleware or software included in the Equipment or the RealD
System or otherwise provided by RealD, other than solely with the RealD System,
and agrees not to permit or authorize anyone else to do any of the
foregoing.  To the extent that Licensee
owns any rights to any modification or improvement of the RealD System by
operation of law or otherwise, Licensee hereby assigns all such rights to RealD
for a consideration of U.S. $1.00, the receipt of which is hereby acknowledged
by Licensee.


 


6.3           Protection of Proprietary Information.  Licensee agrees and acknowledges that (i) RealD
has expended and will continue to expend substantial time, money and effort
developing the proprietary rights evidenced by, associated with or embodied in
or related to the RealD System, (ii) Licensee will take commercially
reasonable steps to preserve the proprietary information contained in the RealD
System and the Equipment, and (iii) Licensee will take commercially
reasonable steps to assist RealD’s efforts to prevent any theft, unauthorized
use, or misappropriation of the RealD System and the Equipment, by, among other
things, at all times maintaining the RealD System and the Equipment at a locked
and secured location, with access restricted to persons employed by Licensee
with a need to access the RealD System and the Equipment or such location.  Licensee agrees that it will promptly notify
RealD of any loss, theft, unauthorized use, or misappropriation of the RealD
System.


 


6.4           Right to Inspect Locations.  Licensee shall permit RealD, or RealD’s
agents, to enter Licensee’s Locations at mutually agreed times to determine
Licensee’s adherence to the terms and conditions of this Agreement.  Such inspection shall be conducted in a
manner that does not interfere with Licensee’s operations.  Notwithstanding the foregoing, RealD shall be
permitted to exercise the foregoing inspection right not more than twice per
calendar year.  Any information obtained
by RealD as a result of such inspection shall be held in strict confidence by
RealD, except in litigation between the parties.


 


6.5           Additional Filings; Cooperation.  Licensee shall execute such documents, render
such reasonable assistance, and take such other action as RealD may reasonably
request, at RealD’s expense, to apply for, register, perfect, confirm and
protect RealD’s rights in the Equipment and/or the RealD System.  Licensee acknowledges that the trade names,
trademarks and service marks used by RealD in relation to the Equipment and the
RealD System which are listed on Schedule A are the exclusive property
of RealD (the “RealD Trademarks”).  Licensee agrees that it shall not file any
trademark or service mark applications which are confusingly similar to the
RealD Trademarks, and will not hold itself out as having acquired any
proprietary right or goodwill to any of the RealD Trademarks by virtue of its
use pursuant to this Agreement.


 


7.             REPRESENTATIONS AND WARRANTIES


 


7.1           Representations. 
Each party represents and warrants to the other party that: (i) such
party is duly organized and validly existing under the laws of the state of its
incorporation or formation and has full power and authority to enter into this
Agreement and to carry out the provisions hereof; (ii) this Agreement is a
legal and valid obligation of such party, binding upon such party and
enforceable against such party in accordance with the terms of this Agreement;
and (iii) it has the right to enter into this Agreement and grant the
rights granted herein.  RealD further
represents and warrants that (a) RealD owns or has the right to use and
sublicense all necessary intellectual property rights in the RealD System,
including all necessary patents and trademarks; and (b) the RealD System
does not, and will not, infringe on the intellectual property rights of any
third party.  RealD shall defend,
indemnify, and hold harmless Licensee and its affiliates from and against any
and all losses, obligations, risks, costs, 


 


8

















 


claims,
liabilities, settlements, damages, liens, judgments, awards, fines, penalties,
expenses and other obligations whatsoever (including, without limitation, the
reasonable fees and disbursements of attorneys and of any consultants or
experts and their expenses of investigation) (“Costs”) suffered or incurred by Licensee or its affiliates in
connection with, as a result of, based upon, or relating to, any infringement,
violation, misappropriation, or misuse of any third-party intellectual property
rights by RealD.


 


7.2           DISCLAIMER OF ADDITIONAL REPRESENTATIONS AND WARRANTIES.  EXCEPT AS SPECIFICALLY SET FORTH
HEREIN, REALD MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
WITH RESPECT TO THE REALD SYSTEM, AND DISCLAIMS ALL OTHER REPRESENTATIONS AND
WARRANTIES, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS AND WARRANTIES OF
MERCHANTABILITY.


 


7.3           LIMITATION OF LIABILITY.  WITHOUT LIMITING THE GENERALITY OF SECTION 7.2,
BUT SUBJECT TO THE OTHER TERMS OF THIS AGREEMENT (INCLUDING, WITHOUT
LIMITATION, REALD’S OBLIGATION TO INDEMNIFY LICENSEE FOR ALL INDEMNIFIABLE
COSTS UNDER SECTION 7.1 OF WHATEVER CHARACTER), AND APPLICABLE LAW,
NEITHER PARTY SHALL BE LIABLE OR RESPONSIBLE FOR ANY INDIRECT OR CONSEQUENTIAL
LOSS OR DAMAGE TO PERSONS OR PROPERTY RESULTING FROM A BREACH OF THIS
AGREEMENT, OR FOR LOSS OF USE OF THE EQUIPMENT OR THE REALD SYSTEM OR FOR ANY
INTERRUPTION IN BUSINESS CAUSED BY LOSS OF USE OF THE EQUIPMENT OR THE REALD
SYSTEM FOR ANY REASON WHATSOEVER; PROVIDED THAT, IN ACCORDANCE WITH THE LAST
SENTENCE OF SECTION 7.1, REALD SHALL INDEMNIFY LICENSEE FOR ALL
COSTS OF ANY NATURE REFERRED TO THEREIN.


 


7.4           [***]


 


9

















 


[***]


 


8.             CONFIDENTIALITY


 


8.1           Confidential Information.  By virtue of this Agreement, each party may
have access to certain confidential information of the other party (“Confidential Information”).  In particular, each party acknowledges,
understands and agrees that the terms and provisions of this Agreement
(including without limitation, Section 5.7 contained herein), shall
constitute Confidential Information for all purposes of this Section 8.1
and of all other terms and provisions of this Agreement.  Each party agrees to hold the other party’s
Confidential Information in strict confidence, using the same degree of care it
uses with its own Confidential Information of a similar type (but in no event
using less than a reasonable degree of care) and not to publish, disclose or
otherwise make available, directly or indirectly, the other party’s
Confidential Information or any part thereof to any third party, or use the
other party’s Confidential Information for any purpose other than in accordance
with this Agreement, except as required by law, or in connection with any
litigation, mediation or arbitration between the parties, without the other
party’s prior written consent.  Each
party shall disclose Confidential Information to employees and agents only on a
“need to know” basis.  Each party shall
take all reasonable steps to ensure that the other party’s Confidential
Information is not disclosed or distributed by the receiving party’s agents or
employees in violation of the provisions of this Agreement.  Confidential Information does not include any
information that: (i) was in a party’s possession or known to such party,
without an obligation to keep it confidential; (ii) is or becomes public
knowledge other than by disclosure by a party in violation of this Section 8.1;
or (iii) is or becomes lawfully available to a party from a source other
than the other party, which to such party’s knowledge was not bound by any duty
or obligation of confidentiality.


 


9.             TERM AND TERMINATION


 


9.1           Term. 
This Agreement shall commence and become effective on the Effective Date
and continue until the latest termination date set forth on an Equipment
Schedule, unless terminated earlier as provided under this Agreement.  The Initial Term as to a specific Location
shall be [***] years from the Installation Date
for that Location (the “Initial Term”).  Licensee shall have the right to renew as to
a Location for successive [***] year
terms (“Renewal Term(s)”) by
providing written notice to RealD of such renewal for a Location at least [***]) days prior to the expiration of the Initial Term
or, thereafter, [***] days prior to the
expiration of the Initial Renewal Term or then current Renewal Term as to such
Location.  For purposes of Section 5.8
and this Section 9.1, the “Initial
Renewal Term” means the first [***] term immediately after the Initial Term. The Initial Term, the Initial
Renewal Term and any Renewal Term(s) shall be collectively referred to as
the “Term”.


 


9.2           Events of Default.  The occurrence of any of the following events
shall constitute an “Event of Default”
hereunder:


 


(a)           if any party fails to make any payment due hereunder, within ten (10) days
of notice of failure to make such payment;


 


(b)           a material breach by the other party of any representation or warranty or
any of its obligations hereunder, including but not limited to Section 2.2,
other than a breach of a party’s payment obligations which is governed by Section 9.2(a),
upon thirty (30) days’ prior written notice to the breaching party if such
breaching party fails to remedy such breach within such thirty (30) days, or,
in the event such breach cannot be remedied within such thirty (30) days, if
such breaching party has not undertaken substantial good faith efforts to
remedy such breach within such thirty (30) day period and is continuing in good
faith with such efforts;


 


10














 


(c)                                  the making of an assignment by a party for the benefit of their respective
creditors or the admission by a party in writing of its inability to pay its
debts as they become due, or the filing by a party of a voluntary petition in
bankruptcy, or the adjudication of a party as bankrupt or insolvent, or the
filing by a party of any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, or the filing of any answer by a party admitting, or the failure by
a party to deny, the material allegations of a petition filed against it for
any such relief, or the seeking or consenting by a party to, or acquiescence by
a party in, the appointment of any trustee, receiver or liquidator of either
party or of all or any substantial part of the properties or assets of a party;
and


 


(d)                                 within ninety (90) days after the commencement of any proceedings against a
party seeking reorganization, arrangement, composition, readjustment,
liquidation or similar relief under the federal bankruptcy laws or any similar
federal or state statute, law or regulation, such proceedings shall not have
been dismissed, or if within ninety (90) days after the appointment without a
party’s consent or acquiescence of any trustee, custodian, receiver or
liquidator for the RealD Systems, such party or any substantial part of a party’s
assets or properties, such appointment shall not have been vacated.


 


9.3                                 Remedies. 
Upon the occurrence and during the continuation of any Event of Default,
the non-defaulting party may, at its option, declare this Agreement to be in
default, and may exercise any remedy available to it, at law or in equity,
including the remedies below, as such non-defaulting party in its sole and
absolute discretion may elect, it being the intention of both parties that all
of such remedies are cumulative and will not limit any other rights or remedies
a non-defaulting party may have hereunder, at law or in equity:


 


(a)                                  proceed by appropriate court action, either at law or in equity, to recover
any and all damages and expenses, including reasonable attorney’s fees and
costs, which the non-breaching party will have sustained by reason of such
Event of Default or on account of such party’s enforcement of its remedies
hereunder; or


 


(b)                                 terminate this Agreement in its entirety or only with respect to one or
more Locations (in which event, if RealD is the party exercising this remedy,
it may retake possession of the RealD Systems affected thereby).


 


9.4                                 Effect of Termination.  In the event that this Agreement is
terminated pursuant to Section 9.2(a) or (b), the duties and
obligations of the breaching party which have accrued prior to termination
shall not be released or discharged by such termination.  Any licenses or other rights granted the
non-breaching party shall continue in effect at the option of the non-breaching
party as long as the non-breaching party abides by the terms of the surviving
provisions of this Agreement, including but not limited to the obligation to
make payments required hereunder.  Sections
5.1 and 5.2 (as they pertain to Play Months ending on or before the
termination date) 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 6, 7, 8 and 10 and this Section 9
shall survive termination of this Agreement under Section 9.2 (a) or
(b).


 


9.5                                 Surrender. 
At the expiration or earlier termination of this Agreement, Licensee
shall relinquish possession and control of the RealD System, including the
Equipment (but excluding the Screen). 
Upon the expiration of the Initial Term or a Renewal Term, as
applicable, or the earlier termination of this Agreement, RealD shall have the
right, at its sole cost and expense, to retake possession of any or all of the
RealD Systems (but excluding the Screen), and for such purpose RealD shall have
the right to enter upon any premises where any or all of the RealD Systems is
located at 


 


11

















 


mutually
agreed upon times by RealD and Licensee and remove same.  Such removal must be performed under
supervision of Licensee.  RealD shall
repair all damage to the Auditoriums or the Location, digital projectors and/or
pedestals caused by RealD’s removal of such RealD System.  If RealD fails to remove the RealD System
within thirty (30) days of the expiration or earlier termination of the
applicable Equipment Schedule, Licensee may remove and store such RealD System
and any expenses incurred by Licensee as a result of such removal shall be paid
by RealD to Licensee within thirty (30) days of RealD’s receipt of an
invoice.  If RealD fails to reclaim such
RealD System within ninety (90) days of expiration or earlier termination of
the applicable Equipment Schedule, Licensee may sell or destroy such RealD
System without any further liability or obligation to RealD.  This provision shall survive the expiration
or earlier termination of this Agreement or the applicable Equipment Schedule.


 


9.6                                 Termination of Prior License Agreement, First Restated Agreement, the
Amendment, the Second Amendment and the Proposal, and Treatment of RealD
Systems Currently Installed in the Pre-Existing Auditoriums.  Each of Licensee and RealD
acknowledges and agrees that, on the Effective Date, the Prior License
Agreement, the First Restated Agreement, the Amendment, the Second Amendment
and the Proposal (each of which are defined in the third recital of this
Agreement) shall be terminated and of no further force or effect; provided,
that, notwithstanding the foregoing: (a) [***]


 


10.                               GENERAL


 


10.1                           Assignment. 
Neither party may assign or transfer its rights and obligations under
this Agreement without the other party’s prior written consent, which consent
shall not be unreasonably withheld; provided, however, that (a) either party
may assign all of its right, title and interest under this Agreement to any (i) person
or entity with which such party is merged or consolidated, or (ii) person
or entity that acquires all or substantially all of the assigning party’s
assets or equity securities of whatever type, (b) Licensee may assign its
right, title and interest under this Agreement to any affiliate of Licensee
that becomes the primary operating entity of substantially all of Licensee’s
theatres, and (c) RealD may assign its right, title and interest under
this Agreement to any entity that provides debt or equity financing to RealD,
as full or partial security to such entity in connection with such
financing.  Each party shall give the
other party written notice of any assignment permitted under this Section 10.1.  This Agreement shall bind, inure to the
benefit of and be enforceable by the successors and permitted assigns
hereto.  Notwithstanding anything to the
contrary contained herein, RealD may assign and transfer this Agreement and its
right, title, and interest hereunder without the written consent of, or notice
to, Licensee in connection with any transaction effected solely to change RealD’s
state of incorporation.


 


12

















 


10.2                           Relationship of Parties.  The parties to this Agreement are independent
contractors, and this Agreement shall not establish any relationship of
partnership, joint venture, employment, franchise, or agency between the
parties.  This Agreement does not give
either party the power to bind the other or incur obligations on the other’s
behalf without the other’s prior written consent.


 


10.3                           Counterparts; Facsimile Signatures.  This Agreement and any amendment hereto may
be executed in counterparts, and by using facsimile signature pages, each of
which when executed and delivered shall be deemed an original and all of which
taken together shall constitute one and the same instrument.


 


10.4                           Compliance with Laws.  Licensee shall, at its own expense, procure
all necessary approvals, licenses, permits, permissions, waivers, certificates
and consents that may be required from any governmental authorities (and any
lessees or landlords) for the installation and use of the RealD System at the
Locations in accordance with the terms of this Agreement.


 


10.5                           Infringement Notification.  Licensee shall promptly give notice to RealD
of any allegation, claim or challenge that Licensee’s use of the RealD System
infringes on the intellectual property rights of a third party.  In the event of a claim of infringement
against Licensee relating to the RealD System, RealD shall, at its option (i) secure
for Licensee, at the sole cost and expense of RealD, the rights necessary to
continue to use and operate the RealD System under this Agreement, (ii) assume
control of the defense or settlement of such claim, at the sole cost and
expense of RealD, or (iii) terminate this Agreement upon not less than
thirty (30) days prior written notice.


 


10.6                           Injunctive Relief.  It is understood and agreed that,
notwithstanding any other provision of this Agreement, any breach of Section 6
or Section 8 by either party may cause irreparable damage for which
recovery of money damages may be inadequate, and that the non-breaching party
will therefore be entitled to seek timely injunctive relief from a court of
competent jurisdiction to protect such party’s rights under this Agreement in
addition to any and all remedies available at law.


 


10.7                           Applicable Law; Venue.  This Agreement is to be governed by and
construed in accordance with the internal laws of the State of California,
excluding that body of law pertaining to conflict of laws.  The parties expressly agree that the United
Nations Convention on Contracts for the International Sale of Goods or the
Uniform Computer Information Transactions Act shall not apply to this
Agreement.


 


10.8                           Notices. 
All notices, consents, waivers, and other communications intended to
have legal effect under this Agreement must be in writing, must be delivered to
the other party at the address set forth below by personal delivery, by
registered or certified mail (postage pre-paid), by an internationally
recognized overnight courier, and will be effective upon receipt (or when
delivery is refused).  Each party may
change its address for receipt of notices by giving notice of the new address
to the other party.


 


	
  RealD:

  	
  RealD Inc.

  100 N. Crescent Dr., Suite 120

  Beverly Hills, CA 90210

  Attn: Craig S. Gatarz, Executive Vice President and
  General Counsel

  



 


13

















 


	
  With copies to:

  	
  Sheppard Mullin Richter & Hampton LLP

  1111 Chapala Street, Third Floor

  Santa Barbara, CA 93101

  Attn: C. Thomas Hopkins, Esq.

  
	
   

  	
   

  
	
  Licensee:

  	
  American Multi-Cinema, Inc.

  920 Main Street

  Kansas City, Missouri 64105

  Attn:
  Frank Rash, Senior Vice President, Strategic Development & Marketing

  
	
   

  	
   

  
	
  With copies to:

  	
  American Multi-Cinema, Inc.

  920 Main Street

  Kansas City, Missouri 64105

  Attn: General Counsel

  



 


10.9                           Severability. 
If any provision of this Agreement is unenforceable or invalid under any
applicable law or is so held by applicable court decision, such
unenforceability or invalidity will not render this Agreement unenforceable or
invalid as a whole, and such provision will be changed and interpreted so as to
best accomplish the objectives of such unenforceable or invalid provision
within the limits of applicable law or applicable court decisions.


 


10.10                     Jointly Drafted; Review by Counsel.  The parties have participated jointly in the
negotiation and drafting of this Agreement and have had the opportunity to
review this Agreement with counsel of their choosing.  In the event an ambiguity or question of
intent or interpretation arises, no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.


 


10.11                     Entire Agreement; Waiver.  This Agreement, together with the schedules
and Equipment Schedules hereto, all of which are hereby incorporated by
reference, constitutes the entire agreement of the parties regarding its
subject matter. The release on page 4 of the Proposal shall remain in full
force and effect notwithstanding this Agreement, which otherwise supersedes,
except as set forth in Section 9.6, all prior or contemporaneous
understandings, agreements, or other communications between the parties, oral
or written, regarding such subject matter, including without limitation the
Prior License Agreement, First Restated Agreement, the Amendment, the Second
Amendment and the Proposal. Neither this Agreement nor the schedules can be
altered, amended or modified except in writing executed by both parties.  The failure of a party to enforce any
provision of this Agreement shall not be construed to be a waiver of the right
of such party to thereafter enforce that provision or any other provision or
right.  Any waiver of any provision of
this Agreement must be in writing and executed by the party waiving such
provision.


 


10.12                     Headings. 
The captions to the several sections of this Agreement are not a part of
this Agreement, but are included merely for convenience of reference only and
shall not affect its meaning or interpretation.


 


10.13                     Publicity. 
Neither party will, without securing the prior written consent of the
other, publicly announce the existence of this Agreement hereunder (except as
may be required by law or any national securities exchange) or advertise or
release any publicity in regard hereto.


 


10.14                     Auditorium Closures or Changes.  Notwithstanding Section 10.1
above, if at any time during the Term of this Agreement, Licensee discontinues
operations, through a sale, closure or 


 


14

















 


otherwise,
at any Auditorium with respect to which it has executed an Equipment Schedule
or elects for whatever reason to move the RealD System from such Auditorium to
another Auditorium in the Territory, Licensee shall have the option to
terminate the Equipment Schedule with respect to such RealD System and return
the RealD System to RealD or alternatively utilize the RealD System located at
such Auditorium in any other Auditorium operated by Licensee or its Affiliates
which does not have a RealD System in the Territory.  If Licensee elects to move the RealD System
in accordance with the above, Licensee and RealD shall execute a new Equipment
Schedule for the remaining balance of the Term of such terminated Equipment
Schedule for the Location in which the RealD System is installed in accordance
with the terms of this Agreement. 
Licensee shall pay the reasonable costs for the installation of the
RealD System at the new Auditorium pursuant to this Section 10.14.


 


10.15                     Location Sales. 
Notwithstanding Section 10.1 above, if during the Term of
this Agreement, Licensee or its Affiliates sell, transfer, convey or assign to
a third party their respective interest in any particular Location with respect
to which Licensee has executed an Equipment Schedule, Licensee or its
Affiliates may elect to terminate the Equipment Schedule with respect to such
RealD System and return the RealD System to RealD or transfer the RealD System
in such transaction; provided, in the case of a transfer, that such acquirer or
transferee (i) is approved by RealD (such approval not to be unreasonably
withheld), and (ii) executes and delivers to RealD an agreement approved
by RealD containing terms and conditions comparable to the then prevailing
RealD agreement for similar companies and an Equipment Schedule for the
remaining Term applicable to such RealD System. 
Upon such transfer, Licensee shall have no further obligation under this
Agreement or the Equipment Schedule for such Location.


 


10.16                     Choice of Language.  The parties have requested that this
Agreement and the documents relating hereto be drawn up in the English
language.  The English language text and
American usage thereof shall control the interpretation and construction of
this Agreement and all other writings between the parties.  Each party agrees and acknowledges that it
fully understands all of the terms and consequences of this Agreement and that
it has had the opportunity to consult with an attorney of its own choosing
regarding this Agreement.


 


IN WITNESS WHEREOF, the
parties have caused this Agreement to be duly executed by their authorized
representatives as of the Effective Date.


 


	
  RealD Inc.

  	
   

  	
  American
  Multi-Cinema, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Michael V. Lewis

  	
   

  	
  By:

  	
  /s/
  Frank Rash

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Michael V.
  Lewis

  	
   

  	
  Name:

  	
  Frank
  Rash

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  CEO

  	
   

  	
  Title:

  	
  SVP,
  Strategic Partnerships

  



 


15

















 


SCHEDULE A


 


EQUIPMENT


 


A.                                   RealD Cinema System Control Module


 


B.                                     In each Auditorium, either (i) RealD Cinema System Z-Screen and RealD
Cinema System Z-Screen Mounting Hardware, or (ii) RealD Cinema
System XL and RealD Cinema System XL Mounting Hardware, or (iii) a
lens assembly including three lenses for use in a single projection system
using a projector manufactured exclusively for RealD by Sony Electronics for
the projection of 3D images from such projector, which lenses are further
identified as follows:  models LKRL-A002,
LKRL-A003, and any subsequently released new product of Sony Electronics in the
same product line or for essentially the same purpose; in each case as
determined and designated by RealD in its sole judgment.


 


GLASSES


 


The RealD System requires
circular polarized glasses, manufactured exclusively for, and distributed by,
RealD, which glasses will be purchased separately by Licensee or a third party,
as set forth at Section 3 of the Agreement.


 


SOFTWARE


 


System Software:  The RealD Cinema System Control Module
contains embedded software, which is an integral part of the RealD System and
is proprietary to RealD.


 


The RealD authorized
installers will install configuration files in the projector which are
necessary for the 3D projector formats.


 


TRADEMARKS


 


THE PREMIER DIGITAL 3D EXPERIENCE (US) — 78/915, 774


 


THE NEW REALITY (US) — 78/904, 792


 


REAL D (US) — 78/318, 006


 


UPGRADES


 


For purposes of
clarification, this Schedule shall specifically include each upgrade to the
software and hardware described on this Schedule A that a reasonable
person would determine affects the viewing experience of the general public or
that otherwise enhances the reliability or operation of the equipment listed
above.


 


REPLACEMENTS


 


All replacement parts,
replacements, additions, modifications and repairs incorporated into the above
equipment and software and/or affixed thereto.


 

















 


SCHEDULE 1.1 to the Second Amended
and Restated RealD System License Agreement (2010),

between RealD Inc. and American Multi-Cinema, Inc. dated May 9, 2010


 


Equipment Schedule No.     
dated as of           


 


1.


 


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[***]


 














 


[***]


 

















 


[***]


 

















 


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SCHEDULE 5.1(b) to
the Second Amended and Restated RealD System License Agreement (2009),


between RealD Inc. and
American Multi-Cinema, Inc.  dated
May 9, 2010


 


[***]


 


For [***]


 


For each
paid admission to a 3D Show at each Auditorium [***] that is
then using the RealD System, excluding any paid admission for which Licensee
refunds the price therefore, Licensee will pay to RealD a royalty in an amount
equal to U.S. [***].


 


For [***]


 


	
  [***]

  	
   

  	
  (A)

  [***]Auditorium

  at a Location

  	
   

  	
  (B)

  [***]

  Auditoriums

  at a Location

  	
   

  	
  (C)

  [***]Auditorium

  at a Location

  (1)

  	
   

  	
  (D)

  [***]

  Auditoriums

  at a Location

  (2)

  	
   

  	
  (E)

  [***] (at

  Effective

  Date)

  	
   

  	
  (F)

  [***]

  Auditorium

  at a Location

  in [***]

  (3)

  	
   

  	
  (G)

  [***]

  Auditoriums

  at a Location

  in [***] (4)

  	
   

  	
  (H)

  [***]

  Auditorium

  at a Location

  in [***] (5)

  	
   

  	
  (I)

  [***]

  Auditoriums

  at a Location

  in [***]

  (6)

  	
   

  	
  (J)

  [***] paid

  to RealD

  	
   

  
	
  None.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(1) [***]


(2) [***]


(3) In no event shall the [***]


(4) In no event shall the [***]


(5) In no event shall the [***]


(6) In no event shall the [***]


 














 


SCHEDULE 5.1(c) to the Second Amended and Restated
RealD System License Agreement (2010),

between RealD Inc. and American Multi-Cinema, Inc. dated May 9, 2010


 


[***]


(Updated as of May 9, 2010)


 




	
  Location

  	
   

  	
  Number of Screens

  
	
  None

  	
   

  	
  None

  






 

















 


SCHEDULE 9.6 to the Second Amended and Restated RealD System
License Agreement (2010),

between RealD Inc. and American Multi-Cinema, Inc. dated May 9, 2010


 


[***]


 





















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 














 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 














 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 














 


[***]


 





















 


[***]


 





















 


[***]


 





















 


[***]


 





















 


EXHIBIT A to the Second Amended and Restated RealD
System License Agreement (2010),

between RealD Inc. and American Multi-Cinema, Inc.  dated May 9, 2010


 


Form of Amended and Restated Nonqualified Stock Option
Grant


 


[See Exhibit
Number 10.24]