Exhibit 10.16


 


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.


 


AMENDED AND RESTATED

REAL D SYSTEM LICENSE AGREEMENT (U. S. 2009)


 


This
Amended and Restated REAL D System License Agreement (the “Agreement”)  is entered into as
of May 19, 2009 (the “Effective Date”), by and between REAL D, a company
incorporated under the laws of the State of California, and having a principal
place of business at 100 North Crescent Drive, Suite 120, Beverly Hills,
California 90210 (“REAL D”,  or
the “Company”), and Cinemark USA, Inc., a
company incorporated under the laws of the State of Texas and having a
principal place of business at 3900 Dallas Parkway, Suite 500, Plano,
Texas 75093 (“Licensee”).


 


RECITALS


 


WHEREAS, REAL D 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 REAL D 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, of
the REAL D XL Cinema System, the “REAL D
System”);


 


WHEREAS, Licensee, through itself and
its subsidiaries, is the operator of theatre venues in the United States,
Canada, Mexico, Central America and South America (collectively, the “Territory”), and wishes to obtain the right to use the REAL D System in
certain of such theatre venues;


 


WHEREAS, Licensee and REAL D
previously entered into that certain REAL D 1.0 System License Agreement (2006)
dated as of July 13, 2006, as amended by Amendment No. I dated as of March 7,
2007 (the “Prior License Agreement”), and now wish to amend and restate
the Prior License Agreement as provided in this Agreement; and


 


WHEREAS, National Cinemedia LLC and
Digital Link LLC, a California limited liability company, previously entered
into that certain Digital Cinema System Transfer Agreement dated as of February 27,
2007 (the “Digital Cinema System Transfer
Agreement”), which
Digital Cinema System Transfer Agreement shall remain unaffected by this
Agreement and in full force and effect, pursuant to the terms and conditions
contained therein.


 


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

















 


1.   GRANT OF RIGHTS


 


1.1           License of REAL D System. Subject
to the terms and conditions provided  herein (including the
consideration payable pursuant to Section 5 hereof), REAL D hereby
grants to Licensee the right and license to use up to [***] REAL D  Systems in the Territory, a portion
of which will initially be deployed at the auditoriums listed on Schedule
1.1 (a) hereto (individually, an “Auditorium”
and, collectively, the “Auditoriums”); [***]


 


The
theatre venues (e. g., a multiplex theatre) at which the Auditoriums are
located (each, a “Location”) are also specified on Schedule
1.1 (a). More than one Auditorium may be located at one Location. When the
installation of a REAL D  System at an Auditorium is complete
in accordance with Section 2.1  (“Installation
Date”), an Equipment Schedule in the form of Schedule 1.1 (b)
shall be executed by the parties for such Location. Each such Equipment
Schedule shall constitute a separate and independent license and contractual
obligation of Licensee and REAL D, governed by the terms and conditions of this
Agreement. The parties may add additional Locations (i.e., in excess of the
Locations at which the [***]
REAL D Systems specified above are located) in which REAL D Systems will be
installed under the terms of this Agreement, by mutual agreement, by adding the
Auditorium(s), Location(s) and other information required by an Equipment
Schedule for the additional Auditorium(s) to the applicable Equipment
Schedule for such Location, and signing and dating such new or updated
Equipment Schedule as of the applicable Installation Date(s) for such
additional Auditorium(s).


 


1.2           Lease of REAL D Equipment. Subject
to the terms and conditions provided herein (including the consideration
payable pursuant to Section 5 hereof), REAL D leases to Licensee
the REAL D 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           REAL
D XL Cinema System. REAL D shall ship the REAL D XL Cinema System to
Licensee, as requested by Licensee from time to time, unless the installation
of such REAL D XL Cinema Systems would result in the installation of more than [***] REAL D Systems that are then
licensed and operated by Licensee, unless otherwise agreed to by REAL D. [***]


 


 


Notwithstanding
the foregoing, REAL D shall only be obligated to ship to Licensee a REAL D XL
Cinema System, with respect to the applicable Auditorium, only once that
Auditorium has been properly prepared for the installation of such REAL D XL
Cinema System (i.e., the Auditorium has been prepared and is ready for such
installations in compliance with the terms and provisions of Section 1.4
below). REAL D agrees that if light level requirements for 3D are increased by
DCI, SMPTE or an individual


 


2

















 


studio,
above 4.5 lumens, the number of XL units shall be increased
to meet the new standards. REAL D acknowledges and agrees that, in the event
that REAL D cannot provide a 3D functionality on any digital projection system
due to the width of the auditorium screen, the screen ratio or any limitation
of the REAL D System, REAL D shall use its commercially reasonable best efforts
to develop and install in such Auditoriums a digital cinema projection or other
system, for the purpose of the “3D” display of 3D Shows (as defined in Section 1.5
below), that is acceptable to Licensee, such acceptance not to be unreasonably
withheld. REAL D agrees that either (a) the REAL D Systems shall perform “Ghost
Busting” functionality on the REAL D hardware to meet all distributor
requirements for the exhibition of a 3 D Show or Alternative Content (as
defined in Section 1.5 below), or (b) it will provide to
Licensee an alternative solution when and if required by a distributor in
accordance with such distributor’s requirements for the exhibition of a 3D Show
and Alternative Content, at no cost to Licensee. All Ghost Busting software,
updates and equipment required pursuant to (i) or (ii) above shall be
provided at REAL D’s sole cost and expense. Additionally, REAL D shall be
solely responsible for paying any fees charged by third parties to permit 3D
Shows or Alternative Content to be exhibited over Licensee’s digital projector.


 


1.4           Licensee Requirements. [***]


 


 


1.5           [***]


 


 


For
purposes of (a) above, “feature presentations” shall mean content that is
exhibited in more than three (3) showing per day, and for a period in
excess of one (1) week.


 


1.6           [***]


 


3

















 


[***]


 


2.   SHIPMENT,
MAINTENANCE, SUPPORT AND UPGRADES


 


2.1           Installation.
After the Screen has been installed pursuant to Section 1.4 above,
REAL D shall ship to Licensee to install (in each case at the sole cost and
expense of REAL D), the REAL D Systems at each Auditorium in accordance with
the Deployment Plan (as hereinafter defined). Attached hereto as Schedule
2.1 is a preliminary deployment plan, including the Locations’ name and
address, the total number of Screens expected to be equipped with a REAL D
System, and the month and year anticipated for installation (the “Deployment Plan”). Licensee may modify the Deployment Plan, including without
limitation, adding new Locations built or acquired by Licensee, and Licensee
shall provide REAL D with an updated Deployment Plan, on a monthly basis. The
Deployment Plan coincides with Licensees’ anticipated deployment of digital
projection systems. REAL D hereby agrees that it will provide Licensee with
REAL D Systems to enable the REAL D Systems to be installed simultaneously with
the installation of such digital projection systems. REAL D shall bear all
costs of transporting and delivering the REAL D Systems to Licensee’s Locations
and of disconnecting and removing the REAL D Systems from such Locations at the
end of the Term or earlier termination of this Agreement or the applicable
Equipment Schedule. REAL D shall be responsible for all costs of ensuring that
the REAL D System is functioning properly and in accordance with its intended
use. REAL D shall bear all risk of loss of the REAL D System while in
transit to or from Licensee’s Location. REAL D represents and warrants to Licensee
that it has the ability to, and covenants that it will (and subject to the
terms and provisions of Section 1.1 and Section 1.3), if
requested by Licensee, ship to Licensee up to 150 REAL D Systems per month (120
XL units, 30 Z-Screens); provided, that the Auditoriums in which such REAL D
Systems are to be installed have been prepared in full compliance with Section 1.4
hereto prior to the date of the relevant shipment(s). [***]


 


4

















 


[***]


 


REAL
D shall have no further obligation to continue to ship to Licensee any REAL D
Systems, pursuant to the terms and provisions of this Agreement, and Licensee
may install any third party 3D System it chooses at any of its Locations that
do not have a REAL D System then installed in any of the Auditoriums then
situated at such Location; provided, further, that in such circumstances, REAL
D shall be provided with reasonable prior notice of Licensee’s intent to
install such third party 3D System, and Licensee and REAL D shall then
negotiate in good faith so that REAL D may have the opportunity to provide
Licensee with one (1) or more REAL D Systems to be installed at such
Locations on terms mutually acceptable to both REAL D and Licensee.


 


2.2           Maintenance, Support and
Upgrades. REAL D shall, during mutually agreed hours
(and at the sole cost and expense of REAL D), maintain, repair and/or replace
and support the REAL D System at each Auditorium to ensure that the REAL D
System is fully functional and operational. REAL D shall promptly respond to
Licensee’s request for maintenance, repair, replacement and/or support in a
timely manner. REAL D 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 REAL D 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 to be set by the Digital Cinema Initiative.


 


2.3           Obligations of Licensee. Licensee shall
at all times operate the REAL D System in substantial compliance with the
instructions and training (if necessary) provided by REAL D, and shall use the
REAL D System solely for its intended purpose. Licensee shall not make any
alterations, additions or improvements to the REAL D System without the prior
written consent of REAL D (which may be withheld in its sole and absolute
discretion). Licensee shall not remove any labels or notices of ownership
placed on the REAL D System by REAL D without the prior written consent of REAL
D, which may be withheld in its sole and absolute discretion. Licensee shall
not move or otherwise relocate the REAL D System without the prior written
consent of REAL D, which shall not be unreasonably withheld or delayed.


 


2.4           Insurance. REAL D shall,
at its cost, keep the REAL D Systems insured against all losses, including but
not limited to fire and extended coverage, collapse, flood or earth movement,
for the full replacement cost of such REAL D Systems. REAL D shall also, at its
sole expense, maintain and keep in force during the term of this Agreement,
insurance covering the following risks: (i) General Liability for bodily
injury, personal injury and property damage


 


5

















 


with at least [***] per
occurrence/aggregate limit (and where the policy’s general aggregate (i.e.,
total limit) applies separately at each Location where REAL D performs its
services), and (ii) Workers Compensation (in accordance with statutory
limits). REAL D’s insurance policies shall (i) contain an express waiver
of subrogation clause against any claim against Licensee, and (ii) name
Licensee as an additional insured. REAL D shall provide, upon Licensee’s
request, satisfactory evidence of such insurance policies. REAL D agrees to
provide Licensee with at least thirty (30) days prior written notice prior to
any cancellation of this insurance.


 


3.   RELATED PRODUCTS AND
SERVICES


 


3.1           REAL D Glasses. Licensee
acknowledges and understands that an integral part of the REAL D System is the
stereoscopic glasses sold or approved by REAL D to be worn for viewing the 3D
Shows and Alternative Content. Licensee shall not distribute to patrons
glasses, or other stereoscopic viewing materials, other than REAL D Glasses (as
defined below), for use with the REAL D System and viewing a 3D Show and
Alternative Content. [***]


 


 


“REAL D


 


Glasses”). [***]


None of the REAL D Glasses, the packaging for such REAL D Glasses or
any inserts within such packaging may have any advertising or promotions that
would cause a default under Licensee’s agreements regarding in-theatre
advertising and beverage advertising. Licensee shall cooperate with REAL D with
respect to any recycling and/or refurbishing program instituted by REAL D in
cooperation with the film distributors so long as such cooperation does not increase
the operating costs of Licensee’s theatres. For purchases of REAL D Glasses by
Licensee, (a) Licensee shall pay [***]  percent  of the purchase
price of all orders of REAL D Glasses within [***] business days of Licensee’s receipt of such REAL D Glasses, (b) Licensee
shall place orders for REAL D Glasses as soon as practicable prior to the
required delivery date, and (c) REAL D shall deliver all orders of REAL D
Glasses in accordance with the Licensee’s reasonable requirements; provided,
that REAL D shall not be responsible for delays or failures of delivery due to
circumstances not within the reasonable control of REAL D. Licensee may return
surplus generic REAL D Glasses (in their original unopened packaging) to REAL
D, in return for a credit in the amount paid by Licensee for such glasses.


 


4.      MARKETING


 


4.1           Marketing Efforts. Licensee and
REAL D shall endeavor to mutually agree on the marketing and promotional
efforts for the 3D Shows and Alternative Content and


 


6

















 


the
REAL D System used to exhibit the 3D Shows and Alternative Content. Without
limiting the foregoing, Licensee agrees to: [***]


 


In
connection with the foregoing, Licensee shall only use marketing materials
provided by REAL D or the studios and distributors of the 3D Show or
Alternative Content, and Licensee shall use its commercially reasonable efforts
to abide by all guidelines provided to Licensee by REAL D with respect to the
REAL D brand.


 


4.2           Press Launch. REAL D may
engage in a press launch approved by Licensee, such approval not to be
unreasonably withheld, for the opening of the REAL D System at each Location,
and Licensee agrees to cooperate with REAL D (at the sole cost and expense of
REAL D), 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 REAL D, in a form and
substance that has been mutually agreed to by REAL D and Licensee, in connection
with each significant event related to the transactions contemplated by this
Agreement.


 


4.3           Ongoing Promotion. Each party
may promote its relationship with the other party in advertising, promotional
and marketing materials approved by the other party, including without
limitation the inclusion of the other party’s name and logo in a list of a
party’s partners or associates; provided, however, that any use of such other
party’s logos or name in any materials shall require the other party’s prior
written consent, which consent shall be granted or withheld at such other party’s
sole discretion. 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.


 


7

















 


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 either the REAL D System or REAL D Dual Projectors (each, a [***], Licensee will pay to REAL D a
royalty (each, a) [***]  in an amount
equal to U.S. [***]


 


(b)           With respect to each Location [***] which has [***] Auditoriums that is then using
either a REAL D System or REAL D Dual Projectors (each, an [***] in accordance with the terms and
provisions of Schedule 5.1(b) hereto. [***]


 


(c)           [***]


 


(A)          [***]


 


(B)           [***]


 


8

















 


For
purposes of this Agreement, a [***]


 


Finally,
each of Licensee and REAL D acknowledges and agrees that, in no event, and at
no time, shall [***]


 


5.2           Reports and Payments. Within [***] following the commencement of a
3D Show engagement (“Play Week”),
Licensee shall provide REAL D with a report showing the number of Paid
Admissions for all 3D shows for the immediately preceding Play Week and the
calculation of [***] due to REAL
D. Payment in full of any amounts due will be made within [***]  days of the date of such
report. [***]


shall be paid in full within [***] days after the applicable Play Week.


 


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. REAL D shall have the
right to inspect, upon reasonable prior written notice to Licensee and during
normal business hours, the records of Licensee upon which Licensee’s [***] Paid Admission, [***] calculations are based. Such
inspection shall be conducted in a manner that does not
interfere with Licensee’s operations. Notwithstanding the foregoing, REAL D
shall be permitted to exercise the foregoing inspection right not more than one
time per calendar year. Any information obtained by REAL D as a result of such
inspection shall be held in strict confidence by REAL D, except in litigation
between the parties.


 


5.4           Underreporting of Royalties and
License Fees. [***]


 


9

















 


5.5           Duties and Taxes. [***]


 


 


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 [***]
percent [***] pet month until
paid of the payment then due may be added to such payment by REAL D and shall
be paid concurrently with the overdue payment.


 


5.7           Stock Option Grant. Upon
execution of this Agreement, REAL D shall provide documentation (in the form of
Exhibit A, the “Option”) to
Licensee that evidences the grant to Licensee of an option to purchase 815,187 shares of Common Stock of REAL D.
Such stock option shall have an exercise price of US $0.01 per share, and shall
have a term of ten (10) years. As of the Effective Date, the Company
represents and warrants that it has [***]


 


10














 


[***]


 


6.   OWNERSHIP AND
PROPRIETARY RIGHTS


 


6.1           Ownership of REAL D System. Notwithstanding
anything to the contrary expressed or implied in this Agreement or otherwise,
and regardless of whether the REAL D System may become affixed or attached at
the Auditorium or other property, REAL D retains all right, title and interest
in and to the REAL D System, 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 REAL
D System, 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 REAL D
System is within its possession, Licensee shall keep the REAL D System, free
and clear of all liens, encumbrances and charges of any nature caused by
Licensee. Upon request of REAL D and at REAL D’s cost, Licensee shall mark the
REAL D System to indicate the nature of Licensee’s interest therein. The REAL D
System is, and at all times shall remain, the personal property of REAL D.
Licensee shall not permanently affix or attach the REAL D System to any real
property or permanent improvement thereon. For the avoidance of doubt, the REAL
D 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, REAL D grants, and Licensee
obtains, no rights, title or other interest, express, implied, or by estoppel,
in the REAL D System or any proprietary rights of REAL D, 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 REAL D System, or any part or component of the REAL D
System, (ii) decompile, decrypt, reverse engineer, disassemble or
otherwise determine, attempt to determine or reduce the software contained in
the REAL D System to human-readable form; (iii) modify or create
derivative works of any portion of the REAL D System; (iv) except as
provided in Section 10.1, sublease, sublicense, transfer or assign
any part of the REAL D System; or (v) modify or remove any part of the
REAL D System, or use any firmware, middleware or software included in the
Equipment or the REAL D System or otherwise provided by REAL D, other than
solely with the REAL D 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 REAL D System by operation of law or
otherwise, Licensee hereby assigns all such rights to REAL D 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) REAL D 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 REAL D System, (ii) Licensee will take commercially reasonable
steps to preserve the proprietary information contained in the REAL D System,
and (iii) Licensee will take


 


11

















 


commercially
reasonable steps to assist REAL D’s efforts to prevent any theft, unauthorized
use, or misappropriation of the REAL D System. Licensee agrees that it will
promptly notify REAL D of any loss, theft, unauthorized use, or
misappropriation of the REAL D System.


 


6.4           Right to Inspect Locations. Licensee
shall permit REAL D or REAL D’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, REAL D shall be permitted to exercise the foregoing inspection right
not more than twice per calendar year. Any information obtained by REAL D as a
result of such inspection shall be held in strict confidence by REAL D, except
in litigation between the parties.


 


6.5           Additional Filings; Cooperation.
Licensee shall, at REAL D’s sole cost, execute and deliver such documents or
instruments, including Uniform Commercial Code financing statements, as REAL D
may reasonably request, to evidence REAL D’s rights in the REAL D System.
Licensee acknowledges that the trade names, trademarks and service marks used
by REAL D in relation to the REAL D System which are listed on Schedule A
are the exclusive property of REAL D (the “REAL
D Trademarks”). Licensee agrees that it shall not file any trademark
or service mark applications which are confusingly similar to the REAL D
Trademarks, and will not hold itself out as having acquired any proprietary
right or goodwill to any of the REAL D 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.
REAL D further represents and
warrants that (a) REAL D owns or has the right to use and sublicense all
necessary intellectual property rights in the REAL D System, including all
necessary patents and trademarks; (b) the REAL D System does not, and will
not, infringe on the intellectual property rights of any third party; (c) any
software or upgrades that are embedded or otherwise utilized within the REAL D
System will not contain any computer instructions whose purpose is to disrupt,
damage or interfere with the REAL D System or the digital projection system to
which the REAL D System is attached; (d) it has adopted procedures
conforming to prevailing industry standards to eradicate from any software
referred to in (c) above, any node, lock, time out, logic bomb or other
function, implemented by any means which may restrict licensee’s use of or
access to the REAL D System; and (e) neither the REAL D System nor any
software or upgrades that are embedded or otherwise utilized within the REAL D
System shall cause any of Licensee’s digital projectors to not comply with the
DCI Spec. For purposes of this Section 7.1, “DCI Spec” shall mean (i) the
DCI Technical Specification
Version 1.2 released on March 7, 2008 and its errata; (ii) the DCI
Stereoscopic Digital Cinema Addendum Version 1.0 released on July 11, 2007
and its errata; and (iii) any applicable specifications formally approved
and adopted by SMPTE DC28, each as of the date hereof. REAL D shall defend, indemnify, and


 


12

















 


hold
harmless Licensee and its affiliates from and against any and all losses,
obligations, risks, costs, 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 REAL D.


 


7.2             DISCLAIMER OF ADDITIONAL
REPRESENTATIONS AND WARRANTIES. EXCEPT AS
SPECIFICALLY SET FORTH HEREIN, REAL D MAKES NO OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE REAL D 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, REAL D’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 REAL D SYSTEM OR FOR ANY INTERRUPTION IN BUSINESS CAUSED BY LOSS OF USE
OF THE EQUIPMENT OR THE REAL D SYSTEM FOR ANY REASON WHATSOEVER; PROVIDED THAT,
IN ACCORDANCE WITH THE LAST SENTENCE OF SECTION 7.1, REAL D SHALL
INDEMNIFY LICENSEE FOR ALL COSTS OF ANY NATURE REFERRED TO THEREIN.


 


7.4          [***]


 


13

















 


[***]


 


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. 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. Subject to the fourth
sentence of this Section 9.1, 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 s
all have the right to renew as to a Location for successive [***] year terms (“Renewal Term (s)”), by providing REAL D with written notice 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 then current


 


14

















 


Renewal
Term as to such Location. The Initial Term and any Renewal Term(s) shall be
collectively referred to as the “Term”. If, at the end of the Initial Term,
Licensee provides written notice to REAL D of its renewal as to any Location
that is then a part of and subject to this Agreement, then REAL D will [***]


 


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, 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.


 


(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.


 


(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 REAL D
Systems, such party or any substantial part of a party’s assets or properties,
such appointment shall not have been vacated.


 


15

















 


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 REAL D is the party exercising this remedy, it may retake
possession of the REAL D Systems affected thereby).


 


9.4           Effect of Termination. In the event
that this Agreement is terminated pursuant to Section 9.3 (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 6, 7 and 10 shall survive
termination of this Agreement under Section 9.3 (b). If this
Agreement is terminated with respect to one or more Locations pursuant to Section 9.3
(b), then this Agreement shall continue in full force and effect with
respect to all other Locations.


 


9.5           Surrender. At the
expiration or earlier termination of this Agreement, or termination of this
Agreement with respect to a particular Location pursuant to Section 9.3
(b), Licensee shall relinquish possession and control of the applicable REAL
D System, including the Equipment. Upon the expiration of the Initial Term or a
Renewal Term, as applicable, or the earlier termination of this Agreement, REAL
D shall have the right, at its sole cost and expense, to retake possession of
any or all of the REAL D Systems, and for such purpose REAL D shall have the
right to enter upon any premises where any or all of the REAL D Systems is
located at mutually agreed upon times by REAL D and Licensee and remove same.
Such removal must be performed under supervision of Licensee. REAL D shall
repair all damage to the Auditoriums or the Location, digital projectors and/or
pedestals caused by REAL D’s removal of such REAL D System. If REAL D fails to
remove the REAL D System within thirty (30) days of the  expiration or
earlier termination of the applicable Equipment Schedule, Licensee may remove
and store such REAL D System and any expenses incurred by Licensee as a result
of such removal shall be paid by REAL D to Licensee within thirty (30) days of
REAL D’s receipt of an invoice. If REAL D fails to reclaim such REAL D System
within ninety (90) days of expiration or earlier termination of the applicable
Equipment Schedule, Licensee may sell or destroy such REAL D System without any
further liability or obligation to REAL D. This provision shall survive the
expiration or earlier termination of this Agreement or the applicable Equipment
Schedule.


 


16

















 


9.6           Waiver of Certain Damages. In
no event will a party or its permitted successors or assigns be liable to the
other party, or its permitted successors or assigns, for any special,
collateral, incidental or consequential damages for breach of any of the
provisions of this Agreement, even if a party has been advised of the
possibility of such damages.


 


9.7           Termination of Prior License
Agreement and Treatment of REAL D Systems Currently Installed in the
Pre-Existing Auditoriums; Survival of Digital Cinema System Transfer Agreement.
Each of Licensee and REAL D acknowledges and agrees that, on the Effective
Date, the Prior License Agreement (as defined in the third recital of this
Agreement) shall be terminated and of no further force or effect, and this
Agreement shall apply to all REAL D Systems deployed prior to the Effective
Date; provided, that, notwithstanding the foregoing [***]


 


For purposes of
clarification, each of REAL D and Licensee further acknowledges and agrees that
the Digital Cinema System Transfer Agreement (as defined in the fourth recital
of this Agreement) shall remain unaffected by the execution of this Agreement
by Licensee and REAL D, and shall remain in full force and effect, pursuant to
the terms and conditions contained in such Digital Cinema System Transfer
Agreement.


 


10.
  GENERAL


 


10.1         Assignment. Licensee may not
assign or transfer this Agreement (and whether by operation of law or
otherwise), or any of its rights and obligations under this Agreement, without
the prior written consent of REAL D, which approval shall not be unreasonably
withheld; provided, however, that Licensee may assign this Agreement without
REAL D’s prior written consent to any (a) person or entity with which
Licensee is merged or consolidated, (b) person or entity that acquires all
or substantially all of Licensee’s assets or equity securities of whatever type
or (c) affiliate of Licensee that becomes the primary operating entity of
substantially all of Licensee’s theatres. Licensee may also partially assign
its rights


 


17

















 


under this Agreement
without REAL D’s prior written consent to any person or entity (x) which
acquires all or substantially all of Licensee’s assets outside of the United
States, or (y) into which Licensee merges or consolidates its
international subsidiaries, so long as such person or entity enters into an
agreement substantially similar to this Agreement. REAL D may assign, transfer
or delegate this Agreement (and whether by operation of law or otherwise), or
any of its rights or obligations under this Agreement, at any time without the
prior consent of Licensee; provided, however, that REAL D may not assign,
transfer or delegate this Agreement to any motion picture distributor or any of
their affiliates or to any of Licensee’s competitors, without Licensee’s prior
written consent (which may be granted or withheld in Licensee’s sole and
absolute discretion). 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.


 


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 REAL D System at the Locations in accordance with the terms of
this Agreement.


 


10.5         Infringement Notification.
Licensee shall promptly give notice to REAL D of any allegation, claim or challenge
that Licensee’s use of the REAL D System infringes on the intellectual property
rights of a third party. In the event of a claim of infringement against
Licensee relating to the REAL D System, REAL D shall, at its option (i) secure
for Licensee, at the sole cost and expense of REAL D, the rights necessary to
continue to use and operate the REAL D System under this Agreement, or (ii) assume
control of the defense or settlement of such claim, at the sole cost and
expense of REAL D.


 


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 without
the requirement of posting a bond 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 Texas, excluding that body of law


 


18

















 


pertaining to conflict of
laws. Any action or proceeding arising out of or relating to this Agreement may
be brought in the state or federal courts located within Collin County in the
State of Texas, and the parties irrevocably agree to the jurisdiction and venue
of such courts for such purposes. 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.


 


	
   

  	
  REAL D:

  	
  REAL D

  
	
   

  	
   

  	
  100 N. Crescent Dr., Suite 120 

  
	
   

  	
   

  	
  Beverly Hills, CA 90210

  
	
   

  	
   

  	
  Attn: Michael Lewis

  
	
   

  	
   

  	
   

  
	
   

  	
  Licensee:

  	
  Cinemark USA, Inc.

  
	
   

  	
   

  	
  3900 Dallas Parkway, Suite 500 

  
	
   

  	
   

  	
  Plano, TX 75093

  
	
   

  	
   

  	
  Attn: Walter Hebert, III

  
	
   

  	
   

  	
   

  
	
   

  	
  With copies to:

  	
  Cinemark USA, Inc.

  
	
   

  	
   

  	
  3900 Dallas Parkway, Suite 500
  

  
	
   

  	
   

  	
  Plano, TX 75093

  
	
   

  	
   

  	
  Attn: Michael Cavalier

  



 


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. It supersedes all prior or


 


19

















 


contemporaneous understandings, agreements, or other
communications between the parties, oral or written, regarding such subject
matter, including without limitation both the Prior License Agreement, as well
as that certain Letter of Intent previously entered into by and between REAL D
and Licensee in June 2008. Neither this Agreement, the Schedules nor the
Equipment 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 at any Auditorium with
respect to which it has executed an Equipment Schedule or elects to move the
REAL D System from an Auditorium to another Auditorium in the Territory,
Licensee shall have the option to terminate the Equipment Schedule with respect
to such REAL D System and utilize the REAL D System located at such Auditorium
in any other Auditorium operated by Licensee or its Affiliates in the
Territory. If Licensee elects to move the REAL D System in accordance with the
above, Licensee and REAL D shall execute a new Equipment Schedule for the
remaining balance of the Term of such terminated Equipment Schedule for the
Location in which the REAL D System is installed in accordance with the terms
of this Agreement. Licensee shall pay the reasonable costs for the installation
of the REAL D 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
Location with respect to which Licensee has executed an Equipment Schedule,
Licensee or its Affiliates may transfer the REAL D System in such transaction
so long as such acquirer or transferee, which acquirer or transferee is
approved by REAL D (such approval not to be unreasonably withheld), executes
and delivers to REAL D an agreement in substantially the same form as this
Agreement (except for the exclusion of Section 5.7 and Section 7.4)
and an Equipment Schedule for the remaining Term applicable to such REAL D
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


 


20

















 


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.


 


[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK]


 


21

















 


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


 


	
  REAL D

  	
  CINEMARK USA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Michael V. Lewis

  	
   

  	
  By:

  	
  /s/ Walter Hebert

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name: 

  	
  Michael V. Lewis

  	
   

  	
  Name: 

  	
  Walter Hebert

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  CEO

  	
   

  	
  Title:

  	
  SR. V.P.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  5/20/09

  	
   

  	
  Date:

  	
  5/19/09

  



 


22














 


SCHEDULE A


 


EQUIPMENT


 


	
  A.

  	
  REAL
  D Cinema System Control Module

  
	
  B.

  	
  REAL
  D Cinema System Z-Screen

  
	
  C.

  	
  REAL
  D Cinema System Z-Screen Mounting Hardware

  
	
  D.

  	
  REAL
  D Cinema System XL, where applicable

  
	
  E.

  	
  REAL
  D 3D Stereoscopic Lense for Sony 4K Projector, where applicable

  
	
  F.

  	
  XL
  Mounting Kit, where applicable

  
	
  G.

  	
  REAL
  D Dual Projector Kit, where applicable

  



 


GLASSES


 


The
REAL D System requires circular polarized glasses, manufactured exclusively
for, and distributed by, REAL D, 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 REAL D Cinema System Control Module contains embedded software,
which is an integral part of the REAL D System and is proprietary to REAL D.


 


The
REAL D 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 or to meet DCI Specs.


 

















 


REPLACEMENTS


 


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


 

















 


SCHEDULE 1.1(a) to the Amended and Restated REAL
D System License Agreement

(U.S. 2009) between REAL D and Cinemark USA, Inc. dated as of May 19,
2009


 


List of Auditoriums


 


 


[ATTACHED]


 

















 


Schedule
1.1(a)


 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 

















 


[***]


 














 


[***]


 

















 


Schedule 1.1(a)


 


	
  Digital
  3D

  	
   

  
	
   

  	
   

  
	
   

  	
  [***]

  
	
   

  	
   

  
	
  [***]

  	
  [***]

  
	
   

  	
   

  
	
  [***]

  	
  [***]

  



 


1

















 


	
  Digital
  3D

  	
   

  
	
   

  	
   

  
	
  [***]

  	
  [***]

  



 


2

















 


	
  Digital
  3D

  	
   

  
	
   

  	
   

  
	
  [***]

  	
  [***]

  



 


3

















 


	
  Digital
  3D

  	
  [***]

  



 


[***]


 


4

















 


	
  Digital
  3D

  	
  [***]

  



 


[***]


 


5

















 


SCHEDULE 1.1(b) to the Amended and Restated REAL
D System License Agreement


(U.S. 2009) between REAL D and Cinemark USA, Inc.
dated as of May 19, 2009


 


Equipment
Schedule No.           dated
as of May 19, 2009


 


1.


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Renewal

  	
   

  	
   

  	
   

  
	
  Location

  	
   

  	
   

  	
   

  	
  Installation

  	
   

  	
  Initial Term

  	
   

  	
  Term End

  	
   

  	
  Termination

  	
   

  
	
  (name and address)

  	
   

  	
  Aud. #

  	
   

  	
  Date

  	
   

  	
  End Date

  	
   

  	
  Date

  	
   

  	
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


2.
Equipment


 


	
  Quantity

  	
   

  	
  Item
  Description

  	
   

  	
  Serial
  Number

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


This Equipment Schedule is executed pursuant to the Amended and
Restated REAL D System License Agreement (U.S. 2009) between REAL D and
Cinemark USA, Inc. dated            
, 2009 (the “Agreement”).  All
of the terms and conditions of the Agreement are incorporated herein by
reference and made a part hereof as if such terms and conditions were set forth
in full in this Equipment Schedule. By executing this Equipment Schedule,
Licensee and Company hereby reaffirm all of the terms, conditions,
representations and warranties of the Agreement except as modified hereby.


 


	
  REAL D

  	
   

  	
  CINEMARK
  USA, INC.

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  



 

















 


SCHEDULE 1.4 to the Amended and Restated REAL D System
License Agreement (U.S.

2009) between REAL D and Cinemark USA, Inc. dated as of May 19, 2009


 


[***]


[***]


[***]


[***]


 

















 


SCHEDULE 1.6 to Amended and Restated REAL D System
License Agreement (U.S. 2009)

between REAL D and Cinemark USA, Inc. dated as of May 19, 2009


 


[***]


 


(updated as of May 19, 2009)


 


	
  Location

  	
   

  	
  Aud. #

  
	
   

  	
   

  	
   

  
	
  [***]

  	
   

  	
  [***]

  



 














 


SCHEDULE 2.1


 


[***]


 


[***]


 














 


Schedule
2.1 - page 2


 


[***]


 














 


SCHEDULE 5.1(b) to Amended and Restated REAL D
System License Agreement (U.S. 2009) between REAL D and Cinemark USA, Inc.
dated as of May 19, 2009


 


[***]


 


	
  (A)

  	
   

  	
  (B)

  	
   

  	
  (C)

  	
   

  	
  (D)

  	
   

  	
  (E)

  	
   

  	
  (F)

  	
   

  	
  (G)

  	
   

  	
  (H)

  	
   

  	
  (I)

  	
   

  	
  (J)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
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[***]


 

















 


SCHEDULE 5.1(c) to Amended and Restated REAL D
System License Agreement (U.S.

2009) between REAL D and Cinemark USA, Inc. dated as of May 19, 2009


 


[***]


 


(updated as of May 19, 2009)


 


 


[ATTACHED]


 


 


	
  REAL D

  	
   

  	
  LICENSEE

  
	
   

  	
   

  	
   

  
	
  Initials

  	
   

  	
   

  	
   

  	
  Initials

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
   

  	
   

  	
  Date

  



 

















 


SCHEDULE
5.1 c


 


	
  [***]

  	
  [***]

  
	
   

  	
   

  
	
   

  	
   

  
	
  [***]

  	
  [***]

  



 

















 


SCHEDULE 9.7 to Amended and Restated REAL D
System License Agreement (U.S. 2009) 

between REAL D and Cinemark USA, Inc. dated as of May 19, 2009


 


[***]


 


[ATTACHED]


 

















 


Schedule 9.7


 


 


[***]


 


 


[***]


 

















 


EXHIBIT “A”


 


REAL D


 


NONQUALIFIED STOCK OPTION GRANT


 


[SEE EXHIBIT NUMBER 10.17]