Item 9A. Controls and Procedures
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures. The Company maintains disclosure controls and procedures as defined in Rules 13a-15(e) and 15d-15(e) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are designed to ensure that information required to be disclosed in the Company’s reports filed under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to management, including the Company’s Chief Executive Officer (principal executive officer) and Chief Financial Officer (principal financial officer), as appropriate, to allow timely decisions regarding required disclosure.
Management, with the participation of the Chief Executive Officer (CEO) and Chief Financial Officer (CFO), performed an evaluation of the effectiveness of the Company’s disclosure controls and procedures pursuant to Rule 13a-15(e) and 15d-15(e) of the Exchange Act as of December 28, 2023, the end of the period covered by this Annual Report on Form 10-K. Based on such evaluation, the CEO and CFO concluded that the Company’s disclosure controls and procedures were effective.
Management’s Annual Report on Internal Control over Financial Reporting. Management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Exchange Act Rules 13a-15(f) and 15d-15(f). Management evaluated the design and operating effectiveness of the Company’s internal control over financial reporting based on the framework in Internal Control- Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on that evaluation, the Company's management concluded that the Company's internal control over financial reporting as of December 28, 2023 was effective.
In designing and evaluating our disclosure controls and procedures, management recognizes that any control, no matter how well designed and operated, can provide only reasonable, not absolute, assurance of achieving the desired control objectives. Due to the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that misstatements due to error or fraud will not occur or that all control issues and instances of fraud, if any, within the Company have been detected.
Changes in Internal Control over Financial Reporting. There were no changes in our internal control over financial reporting that occurred during the quarter ended December 28, 2023 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. Other Information
None.
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
None.
PART III
Item 10. Directors, Executive Officers and Corporate Governance
The information required by this item with respect to our directors is incorporated herein by reference from the Company's 2024 Proxy Statement under the heading “Proposal 1- Election of Directors.”
The information required by this item regarding our executive officers is set forth in Part I of this Annual Report on Form 10-K under the heading “Information about our Executive Officers” and is incorporated herein by this reference.
Our Board adopted a Code of Business Conduct and Ethics that applies to all of our employees, including our Board of Directors, Chief Executive Officer and principal financial officer. The Code of Business Conduct and Ethics sets forth the Company’s conflict of interest policy, records retention policy, insider trading policy and policies for protection of the Company’s property, business opportunities and proprietary information. Our Code of Business Conduct and Ethics is available free of charge on our website at ncm.com under the tab “Investor Relations– Corporate Governance.” We intend to post on our website any amendments to, or waivers from our Code of Business Conduct and Ethics applicable to senior financial executives.
Item 11. Executive Compensation
89
The information required by this item regarding compensation of executive officers and directors is incorporated herein by reference from the Proxy Statement under the headings “Compensation of Executive Officers,” “Compensation Committee Report”.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
For information with respect to the security ownership of directors, executive officers and holders of more than 5% of a class of our voting securities, refer to the Proxy Statement under the heading “Beneficial Ownership,” which information is incorporated herein by reference.
For Equity Incentive Plan information, refer to the Proxy Statement under the heading “Equity Compensation Plan”, which information is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions, and Director Independence
For information with respect to certain relationships and related transactions, refer to the Proxy Statement under the heading “Certain Relationships and Related Party Transactions,” which information is incorporated herein by reference.
For information with respect to director independence, refer to the Proxy Statement under the heading “Proposal 1- Election of Directors,” which information is incorporated herein by reference.
Item 14. Principal Accounting Fees and Services
The information required by this item with respect to principal accounting fees and services is incorporated herein by reference from the Proxy Statement under the heading “Fees Paid to Independent Auditors.”
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PART IV
Item 15. Exhibits, Financial Statement Schedules
(a) (1) and (a) (2) Financial statements and financial statement schedules
Refer to Index to Financial Statements on page 64.
(b) Exhibits
Refer to Exhibit Index, beginning on page 125.
(c) Financial Statement Schedules
Financial Statement Schedules not included herein have been omitted because they are either not required, not applicable, or the information is otherwise included herein.
91
INDEX TO EXHIBITS
Incorporation by Reference
Exhibit
Ref.
Description
Form
SEC File No.
Exhibit
Filing
Date
2.1 Confirmation Order, dated July 27, 2023
8-K 001-33296 2.1 6/27/2023
3.1 * The Bylaws, as amended February 2, 2024
3.2 Second Amended and Restated Certificate of Incorporation as amended .
10-Q 001-33296 3.1 11/7/2023
3.3 Certificate of Designation Series B Preferred Stock, dated August 7, 2023.
8-K 001-33296 3.1 8/7/2023
4.1 * Description of the Registrant’s Securities
.
10.1 * National CineMedia, LLC Third Amended and Restated Limited Liability Company Operating Agreement dated as of February 13, 2007, by and among American Multi-Cinema, Inc., Cinemark Media, Inc., Regal CineMedia Holdings, LLC and National CineMedia, Inc., as amended through August 7, 2023.
10.2 Amended and Restated Exhibitor Services Agreement dated as of December 26, 2013, by and between National CineMedia, LLC and American Multi-Cinema, Inc. (Portions omitted pursuant to request for confidential treatment and filed separately with the Commission.)
10-K 001-33296 10.2.4 2/21/2014
10.2.1 First Amendment to Amended and Restated Exhibitor Services Agreement dated as of March 9, 2017, by and between National CineMedia, LLC and American Multi-Cinema, Inc.
8-K 001-33296 10.1 3/15/2017
10.3 Amended and Restated Exhibitor Services Agreement dated as of December 26, 2013, by and between National CineMedia, LLC and Cinemark USA, Inc. (Portions omitted pursuant to request for confidential treatment and filed separately with the Commission.)
10-K 001-33296 10.3.4 2/21/2014
10.3.1 First Amendment to Amended and Restated Exhibitor Services Agreement dated as of September 17, 2019, by and between National CineMedia, LLC and Cinemark USA, Inc.
8-K 001-33296 10.1 9/17/2019
10.3.2 Second Amendment to Amended and Restated Exhibitor Services Agreement dated as of July 29, 2022, by and between National CineMedia, LLC and Cinemark USA, Inc.
10-Q 001-33296 10.4 8/8/2022
10.4 Common Unit Adjustment Agreement dated as of February 13, 2007, by and among National CineMedia, Inc., National CineMedia, LLC, Regal CineMedia Holdings, LLC, American Multi-Cinema, Inc., Cinemark Media, Inc., Regal Cinemas, Inc. and Cinemark USA, Inc. (Confidential treatment granted as to certain portions, which portions were omitted and filed separately with the Commission.)
8-K 001-33296 10.6 2/16/2007
10.5 Tax Receivable Agreement dated as of February 13, 2007, by and among National CineMedia, Inc., National CineMedia, LLC, Regal CineMedia Holdings, LLC, Cinemark Media, Inc., Regal Cinemas, Inc., American Multi-Cinema, Inc. and Cinemark USA, Inc.
8-K 001-33296 10.7 2/16/2007
92
Incorporation by Reference
Exhibit
Ref.
Description
Form
SEC File No.
Exhibit
Filing
Date
10.5.1 Second Amendment to Tax Receivable Agreement effective as of April 29, 2008, by and by and among NCM, Inc. and National CineMedia, LLC and the Founding Members and the ESA Parties, amending the Tax Receivable Agreement dated as of February 13, 2007 and as first amended by the First Amendment to the Tax Receivable Agreement effective as of August 7, 2007.
8-K 001-33296 10.1 5/5/2008
10.6 Second Amended and Restated Software License Agreement dated as of February 13, 2007, by and among American Multi-Cinema, Inc., Regal CineMedia Corporation, Cinemark USA, Inc., Digital Cinema Implementation Partners, LLC and National CineMedia, LLC.
8-K 001-33296 10.9 2/16/2007
10.7 Director Designation Agreement dated as of February 13, 2007, by and among National CineMedia, Inc., American Multi-Cinema, Inc., Cinemark Media, Inc. and Regal CineMedia Holdings, LLC.
8-K 001-33296 10.10 2/16/2007
10.8 Registration Rights Agreement dated as of February 13, 2007, by and among National CineMedia, Inc., American Multi-Cinema, Inc., Regal CineMedia Holdings, LLC and Cinemark Media, Inc.
8-K 001-33296 10.11 2/16/2007
10.9 Management Services Agreement dated as of February 13, 2007, by and among National CineMedia, Inc. and National CineMedia, LLC.
8-K 001-33296 10.12 2/16/2007
10.10 Restructuring Support Agreement, dated as of April 11, 2023, among the Company, NCM LLC and Consenting Secured Creditors.
8-K 001-33296 10.1 4/12/2023
10.11 Director Designation Agreement, dated as of August 7, 2023, among National CineMedia, Inc., the Consenting Creditor Designation Committee, and Blantyre Capital Limited.
8-K 001-33296 10.3 8/7/2023
10.12 Loan, Security and Guarantee Agreement dated as of August 7, 2023, by and among National CineMedia, LLC, the certain financial institution party thereto as Lenders, and CIT Northbridge Credit LLC as Agent, Sole Lead Arranger and Sole Bookrunner.
8-K 001-33296 10.1 8/7/2023
10.13 Joint Venture Termination and Settlement Agreement, dated June 3, 2023.
10-Q 001-33296 10.6 8/1/2023
10.14 Network Affiliate Transaction Agreement by and between National CineMedia, LLC and Regal Cinemas, Inc, dated June 3, 2023.
10-Q 001-33296 10.5 8/1/2023
10.15 Employment Agreement dated as of August 1, 2022, by and between National CineMedia, Inc. and Thomas F. Lesinski. +
10-Q 001-33296 10.3 8/8/2022
10.16 Amended and Restated Employment Agreement, dated June 9, 2021, by and between National CineMedia, Inc. and Scott Felenstein.
8-K 001-33296 10.3 6/10/2021
10.17 Employment Agreement dated August 25, 2021 between National CineMedia, Inc. and Ronnie Y. Ng.
8-K 001-33296 10.1 9/27/2021
10.17.1 * First, Second, and Third Amendment to Employment Agreement between National CineMedia, Inc. and Ronnie Y. Ng
93
Incorporation by Reference
Exhibit
Ref.
Description
Form
SEC File No.
Exhibit
Filing
Date
10.18 Form of Indemnification Agreement. +
8-K 001-33296 10.1 2/13/2007
10.19 Form of Indemnification Agreement (August 2018)+
10-Q 001-33296 10.3 8/7/2018
10.20 National CineMedia, Inc. 2007 Equity Incentive Plan. +
8-K 001-33296 10.2 5/2/2013
10.21 National CineMedia, Inc. 2016 Equity Incentive Plan. +
S-8 001-33296 4.1 4/29/2016
10.22 National CineMedia, Inc. 2020 Omnibus Incentive Plan.+
8-K 001-33296 10.2 5/1/2020
10.23 First Amendment to the National CineMedia, Inc. 2020 Omnibus Incentive Plan effective as of May 4, 2022. +
8-K 001-33296 10.1 5/9/2022
10.24 Second Amendment to the National CineMedia, Inc. 2020 Omnibus Incentive Plan effective as of November 2, 2023.
8-K 001-33296 10.1 11/7/2023
10.25 Form of 2012 Stock Option Agreement. +
10-K 001-33296 10.22.4 2/24/2012
10.25.1 Form of 2019 Stock Option Agreement. +
10-Q 001-33296 10.4 11/4/2019
10.25.2 Form of 2020 Stock Option Agreement. +
10-Q 001-33296 10.5 8/3/2020
10.26 Form of Restricted Stock Unit Agreement. +
10-K 001-33296 10.34 3/6/2009
10.26.1 Form of Restricted Stock Unit Agreement under the National CineMedia, Inc. 2016 Equity Plan.+
S-8 001-33296 4.4 4/29/2016
10.26.2 Form of Restricted Stock Unit Agreement under the National CineMedia, Inc. 2016 Equity Plan, amended.+
10-K 001-33296 10.27.2 2/24/2017
10.26.3 Form of Restricted Stock Unit Agreement under the National CineMedia, Inc. 2020 Omnibus Incentive Plan - Director.+
10-Q 001-33296 10.7 8/3/2020
10.27 Form of Retention Agreement.+
8-K 001-33296 10.1 3/8/2023
21.1 * List of Subsidiaries.
23.1 * Consent of Deloitte & Touche LLP.
24.1 * Powers of Attorney of National CineMedia, Inc.
31.1 * Rule 13a-14(a) Certification of Chief Executive Officer.
31.2 * Rule 13a-14(a) Certification of Chief Financial Officer.
32.1 ** Certification of Chief Executive Officer and Pursuant to 18 U.S.C. Section 1350.
32.2 ** Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350.
97.1 * Incentive Compensation Recoupment Policy
99.1 Modified First Amended Plan of Reorganization Under Chapter 11 of the Bankruptcy Code, dated June 25, 2023.
8-K 001-33296 99.1 6/27/2023
101.SCH * Inline XBRL Taxonomy Extension Schema Document.
94
Incorporation by Reference
Exhibit
Ref.
Description
Form
SEC File No.
Exhibit
Filing
Date
101.CAL * Inline XBRL Taxonomy Extension Calculation Linkbase Document.
101.DEF * Inline XBRL Taxonomy Extension Definition Linkbase Document.
101.LAB * Inline XBRL Taxonomy Extension Label Linkbase Document.
101.PRE * Inline XBRL Taxonomy Extension Presentation Linkbase Document.
104 * Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)
* Filed herewith.
** Furnished herewith.
+ Management contract.
Item 16. Form 10-K Summary
Not applicable.
95
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
NATIONAL CINEMEDIA, INC.
(Registrant)
Date: March 18, 2024 /s/ Thomas F. Lesinski
Thomas F. Lesinski
Chief Executive Officer and Director
(Principal Executive Officer)
96
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities indicated on the 18th day of March, 2024.
Signature Title
/s/ Thomas F. Lesinski Chief Executive Officer
Thomas F. Lesinski (Principal Executive Officer)
/s/ Ronnie Ng Chief Financial Officer
Ronnie Ng (Principal Financial and Accounting Officer)
* Director
Lauren Zalaznick
* Director
Bernadette Aulestia
* Director
Nicholas Bell
* Director
David Glazek
* Director
Juliana F. Hill
* Director
Tiago Lourenço
* Director
Jean-Philippe Maheu
* Director
Joseph Marchese
*By: /s/ Maria Woods Attorney-in-fact
Maria Woods
97