marcoly







EXHIBIT 10.64   March 25, 2015   Anthony Marcoly   312 17th Street   Seal Beach, CA 90740   Dear Anthony:   On behalf of RealD Inc., a Delaware corporation (the “Company”), I am pleased to provide you with this letter setting   forth the terms and conditions of your employment with the Company (the “Agreement”). Effective as of March 25, 2015 (the   “Effective Date”) this Agreement amends, restates and supersedes in its entirety your Employment Agreement with the   Company dated December 21, 2014.   1. Title; Duties; Reporting.  You will serve as the Company’s President, Worldwide Cinema and shall report directly to   the Executive Vice President, Global Operations of the Company.  You shall be a member of the Company’s senior   management team and shall have such duties and responsibilities as shall be consistent with your position.  You shall work out   of the Company’s offices in Beverly Hills, CA, with travel to other locations, including the Company’s facilities in Boulder,   CO, trade shows and customer visits, as necessary to fulfill your duties and responsibilities.  You will also devote your full   time, efforts, abilities, and energies to promote the general welfare and interests of the Company and any related enterprises of   the Company.  You will loyally, conscientiously and professionally do and perform all duties and responsibilities of your   position, as well as any other duties and responsibilities as may be reasonably assigned to you by the Company, consistent with   your position.  You will strictly adhere to and obey all Company rules, policies, procedures, regulations and guidelines   including, but not limited to, those contained in the Company’s employee handbook, as well as any others that the Company   may establish.  You will strictly adhere to all applicable state and/or federal laws and/or regulations relating to your   employment with the Company.   (a) No Conflicting Obligations.  By signing this Agreement, you confirm to the Company that you have   no contractual commitments or other legal obligations that would prohibit you from performing your duties for the   Company.   (b) Outside Activities.  Notwithstanding anything to the contrary contained herein, you may (i) serve as   a director or member of a committee or organization involving no actual or potential conflict of interest with the   Company and its subsidiaries and affiliates; (ii) deliver lectures and fulfill speaking engagements; (iii) engage in   charitable and community activities; and (iv) invest your personal assets in such form or manner that will not violate   this Agreement; provided, however, that the activities described in clauses (i), (ii), (iii) or (iv) do not materially affect   or interfere with the performance of your duties and obligations to the Company and further, provided, that the   Company’s Chief Executive Officer must provide his/her advance written consent with respect to the items referenced   in clause (i).   2. Term.    (a)  Length of Term.  The term of this Agreement shall extend from the Effective Date through March   31, 2017 (the “Term”) unless terminated earlier in accordance with the terms herein.  On April 1, 2017, and on each   subsequent April 1st thereafter, the end date of the Term shall automatically be extended by one (1) additional year,   unless either party has previously provided at least sixty (60) days’ written notice to the other party to not so extend   the Term.  Once such notice has been provided, then the Term shall no longer be extended on any following April 1st.    Notwithstanding anything to the contrary, this Agreement shall in all cases expire no later than (and cannot be   extended beyond) March 31, 2019.  Upon expiration of the Term due to either parties’ providing written notice to not   extend the Term then, except as provided in Section 2(c) below, your employment with the Company shall terminate     





 







(if not terminated earlier in accordance with the terms herein) as of the end of the Term.   The terms of Sections 6   through 13 shall survive any termination or expiration of this Agreement or of your employment.    (b) Resignation.  If you voluntarily terminate your employment for any reason, you shall be deemed to   have immediately resigned from all positions as an employee or officer with the Company, and any of its affiliates, as   of your last day of employment.  Upon termination of your employment for any reason, you shall be deemed to have   immediately resigned from any position as an employee, officer and/or director of the Company or any of its affiliates,   as of your last day of employment.   (c) At-Will Status After Expiration of the Term.  If the Term ends on March 31, 2019 and if you are then   still employed by the Company, then your employment shall thereafter continue on an “at will” basis and during such   at-will period, either party can terminate your employment without obligation (including, without limitation, any   obligation to provide severance payments or benefits) and/or the Company can change any or all of the terms of your   employment at any time for any reason or no reason by providing written notice of the same.  For the avoidance of   doubt, no advance written notice will be required to effectuate a termination of your employment after the expiration   of the Term.   (d) No Eligibility for Severance.  For the avoidance of doubt, the act of either party providing written   notice of its intention to not extend the Term, or the expiration of the Term either on March 31, 2019 or as a result of a   party providing such written notice to not extend the Term, shall not trigger any rights to or eligibility for severance,   including without limitation, those payments and benefits described under Sections 3(e)(i) or 3(e)(ii).  After expiration   of the Term, however, you will remain eligible to receive severance in accordance with the Company’s severance   policy for comparable level executives of the Company as in effect from time to time.       3. Compensation.    (a) Base Salary.    (i) As of the Effective Date, your base salary is $460,000 per year, payable in accordance with   the Company’s standard payroll procedures.    (ii) For all purposes of this Agreement, the term “Base Salary” shall refer to the base salary in   effect from time to time.  During the Term, your Base Salary will be reviewed annually and is subject to   increase (but not decrease) at the discretion of the Board or a committee of members of the Board.    (b) Bonus.   During each fiscal year of the Term, beginning with the fiscal year ending March 31, 2015, you will   annually be eligible to earn a cash performance bonus (“Performance Bonus”) with a target amount of eighty   percent (80%) of your Base Salary.  The Performance Bonus will be issued and administered under the   Company's 2010 Management Incentive Plan (or any successor incentive compensation plan).  Your actual   bonus, if any, for each fiscal year shall be determined by the Company and the Board (or an appropriate   committee thereof) and based 50% on the Company’s performance and 50% on your successful completion   of the performance objectives (“MBO Goals”) reasonably prescribed and established for you by the Company   (although you may have input into the development of such MBO Goals).  The Performance Bonus shall be   paid to you no later than the 15th day of the third month immediately following the fiscal year with respect to   which the Performance Bonus relates.  To earn any Performance Bonus, you must remain employed by the   Company through the end of the fiscal year(s) with respect to which the Performance Bonus relates, except in   the event a “Pro-Rated Bonus” (defined below) is payable pursuant to Section 3(e)(i)(B) below (Qualifying   Termination), Section 4(d) below (death) or Section 4(e) below (Disability). Your Performance Bonus for   fiscal year ending March 31, 2015 will be pro-rated based on the Effective Date.   (c) Equity.    You shall be eligible to be considered for equity awards during each year of the Term at the   discretion of the Board (or an appropriate committee thereof).    (d) Company-Sponsored Benefits.    





 







As a member of the senior management team of the Company, you will also be eligible to receive all   employee benefits pursuant to the Company’s standard benefit plans that the Company generally provides to   the other members of the senior management team that may be in effect from time to time.  These currently   include, without limitation, paid time away, group health benefits, 401(k) retirement benefits, business   expense reimbursements, and Company-paid holidays.  The Company may, in its sole discretion and from   time to time, amend or eliminate any of these benefits.   (e) Severance and Other Termination Benefits.   (i) Qualifying Termination.  If your employment is terminated during the Term without Cause   (as defined below) by the Company or by you for “Good Reason” (as defined below) (each, a “Qualifying   Termination”), the Company shall cause to occur each of the following:   (A)  pay you cash severance installment payments in an aggregate amount equal to one   hundred percent (100%) of your annual Base Salary as in effect on your Termination Date (“Cash   Severance”) being paid in ten monthly pro-rata installments with the first installment of Cash   Severance being paid on the 90th day after your “separation from service” (within the meaning of   Internal Revenue Code (“Code”) Section 409A (“Section 409A”)) from the Company (“Termination   Date”), and the last installment being paid on the first anniversary of the Termination Date;    (B) pay you a pro-rated cash Performance Bonus, calculated as follows:  the product   of (x) the Performance Bonus that would have been earned during the fiscal year in which the   Qualifying Termination occurred, assuming that the Qualifying Termination had not occurred and   that you remained as President, Worldwide Cinema of the Company through the end of such fiscal   year, which Performance Bonus, if any, shall be based on the extent to which the Company achieved   the MBO Goals (or the performance standards set forth in the 2010 Management Incentive Plan or   any successor incentive plan) during such fiscal year, multiplied by (y) a fraction, the numerator of   which is the number of days of the Company’s fiscal year prior to the Termination Date and the   denominator of which is 365 days.  This pro-rated Performance Bonus (a “Pro-Rated Bonus”) shall   be paid to you no later than the 15th day of the third month immediately following the fiscal year in   which the Qualifying Termination has occurred;   (C)  accelerate the vesting of your RSUs and other time-based vesting equity awards, if   any, in accordance with their applicable vesting schedules, as if you had provided an additional   twelve (12) months of service to the Company as its President, Worldwide Cinema as of the   Termination Date;   (D) the Company will continue to pay the cost (to the same extent that the Company   was doing so immediately before the Termination Date) for all group employee benefit coverage   continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to the   same extent provided by the Company’s group plans immediately before the Termination Date for   eighteen (18) months after the Termination Date or until you become eligible for group insurance   benefits from another employer, whichever occurs first, provided that you timely elect COBRA   coverage (“COBRA Benefits”).  You agree (i) at any time either before or during the period of time   you are receiving benefits under this subsection (C), to inform the Company promptly in writing if   you become eligible to receive group health coverage from another employer; and (ii) that you may   not increase the number of your designated dependents, if any, during this time unless you do so at   your own expense.  The period of such COBRA Benefits shall be considered part of your COBRA   coverage entitlement period; provided, however, if the Company determines, in its sole discretion,   that it cannot pay for the COBRA Benefits without potentially incurring financial cost or penalties   under applicable law (including without limitation, Section 2716 of the Public Health Service Act),   then the Company shall, in lieu thereof, pay you a taxable cash amount that it would otherwise have   paid for the COBRA Benefits, in monthly installments over the same time period, which payment   shall be made regardless of whether you elect health care continuation coverage; and   (E) the “Accrued Obligations” (defined below) as of the Termination Date.   For avoidance of doubt, the payments and benefits that may be provided under Sections 3(e)(i)   above or 3(e)(ii) below shall not be provided more than once and if payments and benefits are provided under     





 







either one of these subsections, then no payments or benefits will otherwise be provided again under either   one of these subsections.  For avoidance of doubt, any Cash Severance benefits provided under Sections 3(e)   (i) above or 3(e)(ii) below shall be calculated prior to giving effect to any reduction in Base Salary or target   Performance Bonus that would give rise to your right to terminate for Good Reason. Additionally, any Cash   Severance benefits provided under Sections 3(e)(i) above or 3(e)(ii) below shall be calculated prior to giving   effect to any elected or agreed upon temporary forbearance from payment of the Base Salary or Performance   Bonus.   (ii) Change in Control.  If, during the Term, there is a Qualifying Termination and your   Termination Date occurs (because of such Qualifying Termination) during the time period that commences on   the date that is ninety (90) days before a “Change in Control” (defined below) and extends through the date   that is twenty-four (24) months after a Change in Control (such Qualifying Termination, a “CiC Qualifying   Termination”), then the severance benefits provided to you under Section 3(e)(i) shall be enhanced as   follows: (a) the amount of the total Cash Severance in Section 3(e)(i)(A) shall instead be equal to one   hundred fifty percent (150%) of: (x) the then annual Base Salary plus (y) the target Performance Bonus that   could have been earned during the fiscal year in which the Qualifying Termination occurred, assuming that   the Qualifying Termination had not occurred and that you remained as President, Worldwide Cinema of the   Company through the end of such fiscal year; (b) in lieu of the Pro-Rated Bonus you will instead receive an   amount equal to the Performance Bonus multiplied by a fraction, the numerator of which is the number of   days of the Company’s fiscal year prior to the Termination Date and the denominator of which is 365 days   (the “Target Pro-Rated Bonus”); and (c) in lieu of the vesting acceleration benefits specified in Section 3(e)(i)   (C), one hundred percent (100%) of the shares of common stock you have the option to purchase (the   “Options”), including any additional stock options, restricted stock units, performance stock units, and other   equity compensation incentives granted to you during the Term (collectively, the “Equity Incentives”) which   are outstanding and unvested as of the Termination Date shall become fully vested and exercisable as of the   later of your Termination Date or immediately prior to the date of the Change in Control.  For purposes of   determining the number of shares that will vest pursuant to the foregoing provision with respect to any   performance based vesting Options or Equity Incentives that have multiple vesting levels depending upon the   level of performance, vesting acceleration shall occur, unless otherwise specifically provided in applicable   award agreement, at the greater of (x) the target level or (y) the applicable award level as determined in   accordance with the performance vesting criteria based on the level of actual performance actually attained   through the date of the Change in Control (if calculable).  Subject to Section 12 below, in the event of a CiC   Qualifying Termination, your Cash Severance and the Target Pro-Rated Bonus shall instead be fully paid to   you in a single lump sum payment on the 90th day after your Termination Date.  For avoidance of doubt, you   will still receive the COBRA Benefits in the event of a CiC Qualifying Termination and the particular   payments and benefits that may be provided under a subsection of Sections 3(e)(i) or 3(e)(ii) shall not be   duplicated and if payments and benefits are provided under one such subsection then no payments or benefits   will be provided under the other subsection and vice-versa.    (iii) Release of Claims.  Notwithstanding anything to the contrary, in order to receive any   payments or benefits under Section 3(e)(i) or Section 3(e)(ii) as applicable, you must timely execute and   deliver (and not revoke) a separation agreement and general release of claims in favor of the Company, any   affiliates or related entities, and their employees and affiliates, in the form and content attached as Exhibit A   hereto, within the time period specified in the release, but in no event after the 60th day following the   Termination Date.  However, you shall receive payment or benefits from the Company of the Accrued   Obligations, as applicable, regardless of whether a separation agreement and general release of claims in the   form and content attached as Exhibit A hereto is executed and timely provided to the Company.    (iv) Golden Parachute Excise Tax.  If any payment or benefit received or to be received by you   (including any payment or benefit received pursuant to this Agreement or otherwise) would be (in whole or   part) subject to the excise tax imposed by Code Section 4999, or any successor provision thereto, or any   similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such tax   or taxes, together with any such interest and penalties, are hereafter collectively referred to as the “Excise   Tax”), then the payments or benefits provided under this Agreement or any other agreement pursuant to   which you receive payments that give rise to the Excise Tax will either be: (a) paid in full; or (b) reduced to   the extent necessary to make such payments and benefits not subject to such Excise Tax.  The Company shall   reduce or eliminate the payments first by reducing those payments that are not payable in cash and then by   reducing or eliminating cash payments, in each case in reverse order beginning with payments that are to be   paid the farthest in time from the determination.  You shall receive the greater, on an after-tax basis, of (a) or     





 







(b).  However, if the imposition of such Excise Tax could be avoided by approval of stockholders as   described in Code Section 280G(b)(5)(B), then you may request the Company to solicit a vote of such   stockholders (described in Code Section 280G(b)(5)(B) and in which case you will cooperate and execute   any such waivers of compensation as may be necessary to enable the stockholder vote to comply with the   requirements specified under Code Section 280G and the regulations promulgated thereunder.  In no event   will the Company be required to gross up any payment or benefit to you to avoid the effects of the Excise Tax   or to pay any regular or excise taxes arising from the application of the Excise Tax.  Unless the Company and   you otherwise agree in writing, any parachute payment calculation will be made in writing by independent   public accountants selected by the Company, whose calculations will be conclusive and binding upon the   Company and you for all purposes.  The Company and you will furnish to the accountants such information   and documents as the accountants may reasonably request in order to make a parachute payment   determination.  The accountants also will provide its calculations, together with detailed supporting   documentation, both to the Company and to you, before making any payments that may be subject to the   Excise Tax.  As expressly permitted by Q/A #32 of the Code Section 280G regulations, with respect to   performing any present value calculations that are required in connection with this Section, the parties   affirmatively elect to utilize the Applicable Federal Rates that are in effect on the Effective Date (the   “Agreement AFRs”) and the accountants shall therefore use such Agreement AFRs in their determinations   and calculations.   (f) Expense Reimbursement.  You shall be reimbursed for all documented reasonable business expenses   that are incurred in the ordinary course of business in accordance with the Company’s expense reimbursement policy   as in effect from time to time.  Any reimbursements or in-kind benefits provided under this Agreement that are subject   to Section 409A shall be made or provided in compliance with the requirements of Section 409A, including, where   applicable, the requirement that (i) any reimbursement is for expenses incurred during the period of time specified in   this Agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a fiscal   year may not affect the expenses eligible for reimbursement or in-kind benefits to be provided, in any other fiscal year,   (iii) the reimbursement of an eligible expense will be made no later than the last day of the fiscal year following the   year in which the expense is incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to   liquidation or exchange for another benefit.    1. Other Termination Rules.    Notwithstanding anything to the contrary in this Agreement whether express or implied, the Company may at   any time terminate your employment with the Company and the Term, for any reason or no reason, and with or   without Cause, and you may resign from your employment with or without Good Reason and terminate the Term, all   as set forth in greater detail in this Section 4.  If your employment terminates due to your resignation without Good   Reason, or due to your death or Disability or by the Company for Cause, or the Agreement is terminated at the end of   the Term due to non-renewal in accordance with Section 2, then you will not be eligible for any severance benefits,   except as provided in Sections 4(d) and 4(e).   (a) The following definitions shall apply for purposes of this Agreement:   (i) “Accrued Obligations” shall mean the sum of (i) any portion of your accrued but unpaid   Base Salary through the Termination Date; (ii) subject to Section 13, any compensation previously earned but   deferred by you (together with any interest or earnings thereon) that has not yet been paid and that is not   otherwise to be paid at a later date pursuant to any deferred compensation arrangement of the Company to   which you are a party, if any; (iii) any reimbursements that you are entitled to receive under Section 3(e) of   the Agreement or otherwise; and (iv) any vested benefits or amounts that you are otherwise entitled to receive   under any plan, policy, practice or program of or any other contract or agreement with the Company in   accordance with the terms thereof (other than any such plan, policy, practice or program of the Company that   provides benefits in the nature of severance or continuation pay).   (ii) “Cause” shall mean (i) your commission of fraud against the Company, (ii) your willful   misconduct that materially harms the Company’s interests, (iii) your material violation of Company policies   or practices, (iv) your willful use or disclosure of Confidential Information (as defined below) that is   unauthorized by this Agreement, or (v) your performance of any act or omission which, if you were   prosecuted, would constitute a felony, in each case as determined by the Board (or a committee of members   of the Board), whose determination shall be conclusive and binding.      





 







(iii) “Change in Control” shall mean:   (1) any person or group of persons (as defined in Section 13(d) and 14(d) of the   Securities Exchange Act of 1934, as amended ( the “Exchange Act”) together with its affiliates, but   excluding (i) the Company or any of its subsidiaries, (ii) any employee benefit plans of the   Company, or (iii) a corporation or other entity owned, directly or indirectly, by the stockholders of   the Company in substantially the same proportions as their ownership of stock of the Company   (individually, a “Person” and collectively, “Persons”), is or becomes, directly or indirectly, the   “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of securities of the Company   representing 50% or more of the combined voting power of the Company’s then-outstanding   securities (not including in the securities beneficially owned by such Person any securities acquired   directly from the Company or its affiliates);   (2) the majority of the Board is replaced, during any 12-month period by persons   whose appointment or election is not endorsed by a majority of the Board prior to such appointment   or election;   (3)  the consummation of a merger or consolidation of the Company or any direct or   indirect subsidiary of the Company with any other corporation or other entity regardless of which   entity is the survivor, other than a merger or consolidation which would result in the voting   securities of the Company outstanding immediately prior thereto continuing to represent (either by   remaining outstanding or being converted into voting securities of the surviving entity) more than   50% of the combined voting power of the voting securities of the Company, such surviving entity or   any parent thereof outstanding immediately after such merger or consolidation; or   (3) there is consummated an agreement for the sale or disposition of all or   substantially all of the Company’s assets.   (iv) “Confidential Information” shall mean:  The Company’s confidential and proprietary   business information, including but not limited to, the Company’s products, services, customers, contracts,   fees, prices, costs, business affairs, marketing, accounting, financial statements, employees, research,   inventions, data, software, and any other confidential and proprietary business information of any kind,   nature or description, tangible or intangible, in whatever form.    (v) “Disability” shall mean your medically-determined incapacity due to physical or mental   illness which makes you unable to perform substantially the duties pertaining to your employment with or   without reasonable accommodation for a period of six (6) consecutive months.       (vi) “Good Reason” shall mean any one or more of the following: (1) a material diminution in   your Base Salary or Performance Bonus target, (2) a material diminution in your authority, reporting, or   duties or responsibilities as the Company’s President, Worldwide Cinema, (3) a material change in the   geographic location at which you must perform your services to the Company, which shall be defined to be a   relocation of your principal workplace to a new location that is more than thirty miles away from the   workplace location specified in Section 1 above, or (4) a material breach by the Company of this Agreement.      (vii) “Separation from Service” has the meaning set forth in Treasury Regulations Section   1.409A-1(h)(1).   (viii) “termination or resignation for Good Reason” shall mean any termination or resignation by   you of your employment for Good Reason.   (ix) “termination without Cause” shall mean any termination of your employment by the   Company for any reason other than Cause or your death or Disability.   (b) Termination for Cause. The Company may terminate your employment and the Term at any time for   Cause, provided, however, that in the event the Board determines to terminate your employment for Cause, such   termination shall only become effective if the Board shall first provide you with written notice detailing the alleged   grounds for such Cause, and if such act or omission is susceptible to cure, provide you a 30 day period to cure such act   or omission.  Upon a termination of your employment by the Company for Cause, you only will be entitled to any     





 







salary and other benefits earned, but unpaid, and any reimbursement for expenses owed to you by the Company, as of   the Termination Date.    (c) Termination without Cause.   The Company shall have the unilateral right to terminate your   employment and the Term at any time without Cause, and without notice, in the Company’s sole and absolute   discretion.  Any such termination without Cause shall not constitute a breach of any term of this Agreement, express or   implied, or a wrongful deprivation of your office or position.   If the Company terminates your employment and the   Term without Cause, it shall be treated as a Qualifying Termination and the Company shall have no obligation to you,   except to continue to pay you (or cause to occur, if applicable) the amounts (and actions) set forth in Section 3(e)(i)   above in accordance with the terms thereof and any related provisions of this Agreement.       (d) Termination due to Death.  Your employment and the Term will be automatically terminated on the   date of your death.  In the event of your death, the Company shall pay your estate or assignees (or allow your estate or   assignees to retain, as applicable) within thirty (30) days of the Termination Date the Accrued Obligations, subject to   Section 13 below.  In addition, you shall be eligible to receive a Pro-Rated Bonus for the year in which your   employment is terminated, calculated with reference to the Termination Date and calculated and paid as provided in   Section 3(e)(i)(B) above.  The vested Equity Incentives as of the date of your death shall be exercisable by your estate   or assignees until the earliest of (x) twelve (12) months following the Termination Date; (y) the scheduled expiration   date of the Equity Incentives; or (z) the date on which the Equity Incentives are canceled (and not substituted or   assumed) pursuant to a Change in Control or merger or acquisition or similar transaction involving the Company.    (e) Termination due to Disability.  If you are subject to a Disability, and if within thirty (30) days after   written notice is provided to you by the Company you shall not have returned to perform substantially your duties,   your employment and the Term may be terminated by the Company for Disability.  During any period prior to such   termination during which you are unable to perform substantially such duties due to Disability, the Company shall   continue to pay all amounts required to be paid under this Agreement (including without limitation your Base Salary),   offset by any amounts payable to your under any disability insurance plan or policy provided by the Company, and the   Company shall continue to provide all benefits to you hereunder.  Upon termination of your employment due to   Disability, the Company shall pay you (or allow you to retain, as applicable) within thirty (30) days of such   termination the Accrued Obligations, subject to Section 13 below.  In addition, you shall be eligible to receive a Pro-   Rated Bonus for the year in which your employment is terminated, calculated with reference to the Termination Date   and calculated and paid as provided in Section 3(e)(i)(B) above.  The vested Equity Incentives as of the Termination   Date shall be exercisable by you until the earliest of (x) twelve (12) months following the Termination Date; (y) the   scheduled expiration date of the Equity Incentives; or (z) the date on which the Equity Incentives are canceled (and   not substituted or assumed) pursuant to a Change in Control or merger or acquisition or similar transaction involving   the Company.    (f) Resignation for Good Reason.  You may terminate your employment and the Term at any time for   Good Reason, provided that you provide written notice to the Company describing the existence of any Good Reason   condition(s) within ninety (90) days of the date of the initial existence of the condition(s) or else you will be deemed   to have waived any Good Reason with respect to such condition(s).  Upon the Company’s receipt of such written   notice, the Company shall then have thirty (30) days during which it may cure or remedy the condition(s).  If the   Company does cure or remedy the condition(s) during such thirty (30) day period then Good Reason will be deemed   to have not occurred with respect to such condition(s).  If the Company does not cure or remedy the condition(s)   during such thirty (30) day period, then your employment with the Company and the Term shall be terminated for   Good Reason as of the day following the expiration of the thirty (30) day cure/remedy period.  If you terminate your   employment for Good Reason in accordance with the provisions of this Section 4(f), it shall be treated as a Qualifying   Termination and the Company shall pay you (or cause to occur, if applicable) the amounts (and actions) set forth in   Section 3(e)(i) above in accordance with the terms thereof and any related provisions of this Agreement.    (g) Resignation without Good Reason.  You may terminate your employment and the Term at any time   for no reason, or for any reason that does not otherwise constitute Good Reason, in your sole and absolute discretion.   You agree to use reasonable efforts to provide written notice to the Company of your termination of employment   without Good Reason at least three (3) months prior to the effective date of your resignation (and such notice must   specify the effective date of your resignation of employment).  In the event you so terminate your employment without   Good Reason, you shall only be entitled to receive (subject to Section 13 below) the Accrued Obligations through the   effective date of your resignation, as well as all other compensation and benefits required under this Agreement   through the effective date of your resignation, and neither you nor the Company shall have any further obligations to   the other except as set forth in Section 6 (Confidential Information), Section 7 (Covenants) and Sections 8 through and     





 







including 13.  However, in the event you terminate your employment without Good Reason and your Termination   Date occurs prior to the end of the required minimum three (3) month notice period provided in this Section 4(g), then   the Option and any additional stock options or stock appreciation rights granted to you after the Effective Date shall   immediately expire and be forfeited as of such Termination Date. The Company is not obligated to actually utilize   your services at any time during the three-month period preceding the effective date of your resignation, and may   prevent you from accessing any of the Company premises or resources during such three-month period.  Additionally,   as long as the Company provides you with any compensation and benefits that would have been earned by you   pursuant to Sections 3(a), 3(b) and 3(c) during the three-month period preceding the effective date of your resignation   had you remained employed during such period, the Company may terminate your employment prior to the expiration   of such three-month period without triggering any rights to or eligibility for severance, including without limitation   those payments and benefits described under Sections 3(e)(i) or 3(e)(ii).   5. Confidential Information.  As an employee of the Company, you will have access to certain confidential information   of the Company and you may, during the course of your employment or thereafter, develop certain information or inventions   which will be the property of the Company.  In consideration of, and as a condition to, your employment with the Company,   and as an essential inducement to the Company to enter into this Agreement, this Agreement is expressly subject to your   executing (and complying with) the RealD Inc. Employee Invention Assignment and Confidentiality Agreement (the   “Confidentiality Agreement”) in the form enclosed hereto as Exhibit B.   6. Covenants.  You agree to timely and fully comply with all of the covenants set forth in this Section 7 and further   understand and agree that such covenants shall survive any termination of your employment and termination or expiration of   this Agreement.   (a) Return of Company Property.  On your Termination Date, or at any other time as required by the   Company, you will immediately surrender to the Company all Company property, including but not limited to,   Confidential Information (as such term is defined in the Confidentiality Agreement), keys, key cards, computers,   telephones, pagers, credit cards, automobiles, equipment and/or other similar property of the Company.  The Company   shall reimburse you for any reasonable expenses to ship its property back to the Company’s offices, as applicable.   (b) Non-disparagement.  You will not at any time during the period of your employment with the   Company and during any period in which you are receiving severance payments under Section 3(e), make (or direct   anyone else to make) any disparaging statements (oral or written) about the Company, or any of its affiliated entities,   officers, directors, employees, stockholders, representatives or agents, or any of the Company’s products or services or   work-in-progress, that are harmful to their businesses, business reputations or personal reputations.   (c) Cooperation. You agree that, upon the Company’s request and without any payment therefore,   you shall reasonably cooperate with the Company (and be available as necessary) after the Termination Date in   connection with any matters involving events that occurred during your period of employment with the Company.    (d) Amounts Due.  You will fully pay off any outstanding amounts owed to the Company no later than   their applicable due date or within thirty days of the Termination Date (if no other due date has previously been   established).  Within thirty (30) days of the Termination Date, you will submit any outstanding business expense   reports to the Company for business expenses incurred prior to the Termination Date.   (e) Company Resources.  As of the Termination Date, you will no longer represent that you are an   officer, director or employee of the Company or any Company affiliate and you will immediately discontinue using   the Company mailing address, telephone, facsimile machines, voice mail and e-mail.   (f) Notice of New Employment. You will provide written notice to the Company within three (3)   business days after the date that you agree to accept new full or part time employment or agree to provide consulting   or other services to another entity or venture.   (g) Representations.  You represent that you have not entered into any agreements, understandings, or   arrangements with any person or entity that you would breach as a result of, or that would in any way preclude or   prohibit you from entering into, this Agreement with the Company or performing any of the duties and responsibilities   provided for in this Agreement.  You represent that you do not possess any confidential, proprietary business   information belonging to any other entity, and will not use any confidential, proprietary business information   belonging to any other entity in connection with your employment with the Company.  You represent that you are not   resigning employment or relocating any residence in reliance on any promise or representation by the Company     





 







regarding the kind, character, or existence of such work, or the length of time such work will last, or the compensation   therefor.   (h) Clawback Policy.  Without limiting the requirement in Section 1 that you will strictly adhere to and   obey Company policies, you understand and acknowledge that the Company has adopted a policy (which the   Company may in the future amend in its discretion) on the recoupment of compensation (“Clawback Policy”).  As a   result, you may be required to repay to the Company certain previously paid compensation (that was earned or accrued   on or after the Effective Date) in accordance with any such Clawback Policy and/or in accordance with applicable law.   (i) Violations.  You acknowledge that (i) upon a violation of any of the covenants contained in this   Section 7; or (ii) if the Company is terminating your employment for Cause as provided under this Agreement, the   Company would sustain irreparable harm as a result and that the Company would not have entered into this Agreement   without such restrictions, and, therefore, you agree that in addition to any other remedies which the Company may   have, the Company shall be entitled, without bond of any kind, to seek equitable relief including specific performance   and injunctions restraining you from committing or continuing any such violation.   7. Entire Agreement.  This Agreement and its Exhibits, the Employee Invention Assignment and Confidentiality   Agreement, and the Company’s 2010 Stock Incentive Plan, and any other plans or agreements referenced herein, as amended or   superseded from time to time, contain the entire agreement between you and the Company regarding their terms and supersede   any and all prior written or oral understandings.  Except as otherwise provided herein, this Agreement may not be amended or   modified except in a writing, executed by you and a duly authorized officer of the Company other than yourself.  This   Agreement may be executed by facsimile signatures and in counterparts, each of which shall constitute an original, and all of   which shall constitute one and the same instrument.    8. Choice of Law; Severability; Waiver.  This Agreement will be governed by the laws of the State of California, United   States, without reference to the conflict of law provisions thereof.  If any provision of this Agreement, or portion thereof, shall   be held invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall attach only to   such provision or portion thereof, and shall not in any manner affect or render invalid or unenforceable any other provision, or   portion thereof, of this Agreement.  No breach of any provision hereof can be waived unless in writing.  Waiver of any one   breach of any provision hereof will not be deemed to be a waiver of any other breach of the same or any other provision of this   Agreement.   9. Successors and Assigns.  The Company may assign this Agreement to any successor (whether by amalgamation,   merger, consolidation, sale of assets, purchase or otherwise) to all or substantially all of the equity, assets or business of the   Company, and this Agreement will be binding upon and inure to the benefit of such successors and assigns, including any   successor entity.  You may not assign this Agreement or your obligations hereunder.   10. Notice.  Any and all notices required or permitted to be given to you or the Company pursuant to the provisions of this   Agreement will be in writing, and will be effective and deemed to provide such party sufficient notice hereunder on the earliest   of the following: (i) at the time of personal delivery, if delivery is in person; (ii) one (1) business day after deposit with an   express overnight courier for United States deliveries, or two (2) business days after such deposit for deliveries outside of the   United States; (iii) three (3) business days after deposit in the United States mail by certified mail (return receipt requested) for   United States deliveries.  All notices that the Company is required to or may desire to give you that are not delivered personally   will be sent with postage and/or other charges prepaid and properly addressed to you at your home address of record with the   Company, or at such other address as you may from time to time designate by one of the indicated means of notice herein.  All   notices that you are required to or may desire to give to the Company that are not delivered personally will be sent with postage   and/or other charges prepaid and properly addressed to the Company’s General Counsel at its principal office, or at such other   office as the Company may from time to time designate by one of the indicated means of notice herein.    11. Withholding and Taxes.  The Company shall have the right to withhold and deduct from any payment hereunder any   federal, state or local taxes of any kind required by law to be withheld with respect to any such payment.  The Company   (including, without limitation, members of the Board) shall not be liable to you or other persons as to any unexpected or   adverse tax consequence realized by you and you shall be solely responsible for the timely payment of all taxes arising from   this Agreement that are imposed on you.   12. Section 409A.  The payments under this Agreement are intended to be exempt from the application of Section 409A   pursuant to the “short-term deferral” exception and “separation pay plan” exception under Section 409A to the fullest extent   possible and any ambiguity herein shall be interpreted accordingly.  Each individual payment provided under Sections 3(e), 4   (d) or 4(e) is intended to be a separate payment and not a series of payments for purposes of Section 409A.  Anything in this     





 







Agreement to the contrary notwithstanding, if the severance payment above constitutes an item of nonqualified deferred   compensation subject to Section 409A, the Company and you shall take all steps necessary (including with regard to any post-   termination services you may perform) to ensure that any such termination constitutes a “separation from service” within the   meaning of Section 409A.  In addition, if you are deemed at the time of your “separation from service” to be a “specified   employee” within the meaning of that term under Section 409A and to the extent delaying commencement of payment of   nonqualified deferred compensation (that is payable on account of your separation from service) is required in order to avoid   the imposition of taxes under Section 409A, then all such payments and benefits will instead be paid to you in a lump sum   without interest on the earlier of (a) the first business day of the seventh month following your “separation from service” or (b)   five business days after the date the Company receives written confirmation of your death.  To the extent any severance benefits   provided under this Agreement are nonqualified deferred compensation subject to Section 409A, to the extent necessary as   required to avoid the imposition of taxes under Section 409A, any accelerated payment of Cash Severance pursuant to Section   3(e)(ii) shall occur only if the Change in Control qualifies as a change in the ownership or effective control of the Company or   change in the ownership of a substantial portion of its assets within the meaning of Treasury Regulations Section 1.409A-3(i)   (5).  It is intended that payments under this Agreement will be exempt from or comply with Section 409A, but the Company   makes no representation or covenant to ensure that the payments under this Agreement are exempt from, or compliant with,   Section 409A, and will have no liability to you or any other party if a payment under this Agreement that is intended to be   exempt from, or compliant with, Section 409A is not so exempt or compliant.   13. Exhibits.  All Exhibits attached to this Agreement shall be incorporated herein by this reference as though fully set   forth herein.   [Remainder of Page Intentionally Left Blank]    





 







If you decide to accept the terms of this Agreement, please sign this Agreement and the Employee Invention Assignment and   Confidentiality Agreement in the spaces indicated and return it to me.  Your signature will acknowledge that you have read and   understood and agreed to the terms and conditions of this Agreement and Employee Invention Assignment and Confidentiality   Agreement.  Should you have anything else that you wish to discuss, please do not hesitate to contact me.   Sincerely,   RealD Inc.   By: /s/ Michael V. Lewis      Michael V. Lewis   Chief Executive Officer   I have read, understand, and accept this offer.  Furthermore, in choosing to accept this offer, I agree that I am not relying on any   representations, whether verbal or written, except as specifically set out within this Agreement.   /s/ Anthony Marcoly     Anthony Marcoly   Date:  March 25, 2015   Enclosures:   EXHIBIT A: FORM OF SEPARATION AGREEMENT AND RELEASE OF CLAIMS   EXHIBIT B: EMPLOYEE INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT    





 







March 26, 2015   Anthony Marcoly   c/o RealD Inc.   100 N. Crescent Drive, Suite 200   Beverly Hills, CA 90210   Re: Fiscal 2016 Bonus   Dear Anthony:   Reference is made to that certain Employment Agreement (the “Agreement”) dated March 26, 2015 between you and RealD Inc.   (the “Company”). Capitalized terms used but not defined herein shall have the meaning given them in the Agreement.   Pursuant to the Agreement, you are eligible to earn a cash performance bonus (the “Performance Bonus”) for each fiscal year of   the Term. This letter confirms that for fiscal year ending March 31, 2016, you will receive a Performance Bonus payout of not   less than $368,000 (the “FY 2016 Bonus”), provided that you must remain employed in good standing by the Company through   and including the last day of the fiscal year ending March 31, 2016 to earn or receive the FY 2016 Bonus; provided, however, that   if a Qualifying Termination occurs prior to March 31, 2016, then subject to your satisfaction of the terms and conditions of the   Agreement for payment of the Pro-Rated Bonus (including timely delivery of an effective release of claims against the Company),   your Pro-Rated Bonus severance benefit will be calculated with respect to the full guaranteed amount of your FY2016 Bonus,   pro-rated to reflect the number of days in the fiscal year prior to your Qualifying Termination, but not reduced with respect to   actual performance during the 2016 fiscal year.  For example, if your employment terminates in a Qualifying Termination on   December 31, 2015, your Pro-Rated Bonus severance benefit amount would be $276,000.  Similarly, for purposes of calculating   any Target Pro-Rated Bonus severance benefit to which you may become entitled to under the terms of the Agreement pursuant   to a CIC Qualifying Termination that occurs prior to March 31, 2016 the target amount of your Performance Bonus used in such   calculation will be $368,000.   Additionally, this letter confirms that the Compensation Committee of the Board of Directors of the Company approved equity   awards with an equivalent value of $425,000 in the aggregate, 50% of which is in the form of restricted stock units and 50% of   which is in the form of performance stock units, each under the Company's 2010 Stock Incentive Plan (“Stock Plan”) as was   provided in your original Employment Agreement with the Company which you executed on December 21, 2014. The equity   terms and conditions will be set forth in the agreements evidencing the grant, and which you must execute as a condition of grant,   with vesting to commence on the Effective Date and in accordance with the vesting schedule set forth in the Stock Plan agreements.   This letter agreement, together with the Agreement and its Exhibits, the Employee Invention Assignment and Confidentiality   Agreement, and the Stock Plan, sets forth all of the terms of your employment with the Company. This letter agreement may only   be changed or supplemented in a writing signed by you and the Chief Executive Officer of the Company. Please acknowledge   your agreement with the foregoing by signing this letter agreement in the space indicated below and returning it to me.   Sincerely,   RealD inc.   By: /s/ Michael V. Lewis          Michael V. Lewis    Chief Executive Officer   ACKNOWLEDGED AND AGREED:   /s/ Anthony Marcoly       By:  Anthony Marcoly   Dated this 26th day of March, 2015    





 







                EXHIBIT A   FORM OF SEPARATION AGREEMENT AND RELEASE OF CLAIMS        





 







 -1-   114068972 v1    SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS      This Separation Agreement and General Release of Claims (the “Agreement”) is entered   into by and between RealD Inc., a Delaware corporation (the “Company”), and _____________   (“Executive”) (together “the Parties”).  This Agreement is effective only if it has been executed   by each of the Parties and the revocation period has expired without revocation as set forth in   Sections 5(c) and (d) below (the “Effective Date”).   WHEREAS, Executive was an employee of the Company and served as its   _____________ pursuant to an employment agreement with the Company with an effective date   of February ___, 2015 (the “Employment Agreement”);   WHEREAS, the Company and Executive mutually agree that (i) Executive’s   employment with the Company was terminated [by the Company without Cause] [by Executive   for Good Reason] (a “Qualifying Termination”) on [DATE] (the “Termination Date”), and (ii)   that Executive will release the Company and its affiliates from any and all claims as of the   Effective Date;   WHEREAS, [a Change in Control (as defined in the Employment Agreement) occurred   on [DATE];] and   WHEREAS, in accordance with the Employment Agreement, a Qualifying Termination   of Executive’s employment means that Executive is eligible to receive certain separation benefits   provided that, among other things, Executive timely complies with the requirements of Section   3(e)(iii) of the Employment Agreement.   NOW, THEREFORE, in consideration of the mutual promises contained herein, the   Parties agree as follows:   1. Qualifying Termination of Employment.  Executive and the Company   acknowledge and agree that Executive’s employment with the Company terminated as of the   close of business on the Termination Date without regard to whether Executive signs this   Agreement or agrees to the following terms and conditions, and that such termination was treated   as a Qualifying Termination by the Company.  As of the Termination Date, it is mutually agreed   that Executive is no longer [an employee] [or director] of the Company and no longer holds any   positions or offices with the Company [except for his membership on the Company’s Board of   Directors].   2. Separation Benefits.  In consideration for Executive’s general release of all claims   set forth below and Executive’s other obligations under this Agreement and in satisfaction of all   of the Company’s obligations to Executive and further provided that: (i) this Agreement is signed   by Executive and delivered to the Company on or before [DATE], (ii) this Agreement is not   revoked by Executive under Section 5 below and therefore becomes effective on or before   [DATE], (iii) Executive remains in continuing material compliance with all of the terms of this   Agreement, and (iv) the termination of Executive’s employment with the Company is treated as   a Qualifying Termination by the Company, then the Company agrees to provide (and continue to   provide) the separation benefits specified in Section 3(a) below to Executive.     





 







 -2-   114068972 v1    In the event that the Company believes Executive is not in continuing material   compliance with the terms of this Agreement, then the Company shall provide Executive with   written notice of the same and the Company’s intention to terminate the separation benefits   specified in Section 3(a) below within ninety (90) days of the date on which the general counsel   of the Company or a member of the Board (other than Executive) first becomes aware of the   initial existence of the condition(s) giving rise to such lack of material compliance.   If the   Company does not timely provide such notice during the applicable 90 days, then the Company   will be deemed to have waived the right to assert any such breach with respect to such   condition(s) provided that at least one of such persons with knowledge of the initial existence of   the condition(s) remains in service with the Company through the conclusion of the ninety day   notice period.  Notwithstanding the foregoing, in the event that the actions or inactions giving   rise to such lack of material compliance are reasonably capable of being cured, the written notice   from the Company shall provide Executive with at least twenty (20) days to cure such   noncompliance, prior to the effective date of the termination of separation benefits specified in   Section 3(a) below.  During such twenty (20) day period, the Company will suspend payment(s)   of the separation benefits specified in Section 3(a) below, and if the actions or inactions giving   rise to such lack of material compliance are not timely cured, then the Company shall   immediately terminate any and all such separation payments and benefits.  In the event that   Executive cures the circumstances giving rise to such lack of material compliance within such   twenty (20) day period, the Company shall remove the suspension and continue to provide the   separation payments and benefits specified in Section 3(a) below.   3. Payments, Benefits and Taxes.   (a) Separation Benefits.  The Company will provide to Executive the payments   and benefits specified in Section 3(e)(i) (or Section 3(e)(ii) if a Change in Control is   consummated before the 90th day after the Termination Date) of the Employment Agreement,   subject to Section 3(e)(iv) of the Employment Agreement, but in no event will payments be   provided under both Sections 3(e)(i) and 3(e)(ii) of the Employment Agreement.  Subject to   Section 3(e) below, such payments and benefits will be provided to Executive at the times   specified in the Employment Agreement.   (b) Taxes.  Any tax obligations of Executive and tax liability therefore, including   without limitation any penalties or interest based upon such tax obligations, that arise from the   benefits and payments made to Executive shall be Executive’s sole responsibility and liability.    All payments or benefits made under this Agreement to Executive shall be subject to applicable   tax withholding laws and regulations and Executive shall be required to timely and fully satisfy   any such withholding as a condition of receipt of any payments or benefits.  The terms of Section   11 of the Employment Agreement are also applicable to this Agreement and to all payments and   benefits provided hereunder.   (c) WARN Payments.  The payments to Executive hereunder shall be considered   as including any and all payments by the Company that could or in fact become payable in   connection with the Executive’s termination of employment pursuant to any applicable legal   requirements, including, without limitation, the Worker Adjustment and Retraining Notification   Act (the “WARN” Act), California Labor Code sections 1400-1408, or any other similar foreign,   federal or state law.     





 







 -3-   114068972 v1    (d) Full Payment.  Except with respect to any “Excluded Claims” (defined   below), Executive represents and warrants to the Company that, as of the Effective Date, the   payments set forth in Section 3(a) herein constitute all payments or obligations owed by the   Company to Executive in connection with any employment, severance, retention, or a change in   control plan or arrangement.   (e) Internal Revenue Code Section 409A.  The terms of Section 12 of the   Employment Agreement are also applicable to this Agreement and to all payments and benefits   provided hereunder.      4. Executive’s Representations, Warranties and Covenants.        (a) Executive reaffirms that he will continue to be bound by, and will continue to   comply with, all of the terms and conditions and covenants in Sections 5 and 6 of the   Employment Agreement and also all terms and conditions of the Confidentiality Agreement (as   such term is defined in the Employment Agreement).   (b) Executive represents and warrants to the Company that, as of the Effective   Date, Executive has no outstanding agreement or obligation that is in conflict with any of the   provisions of this Agreement, or that would preclude Executive from complying with the   provisions hereof, and further certifies that Executive will not enter into any such conflicting   agreement.   (c) Executive represents and warrants to the Company that, as of the Effective   Date, Executive has not filed any claim against the Company or its affiliates and has not assigned   to any third party any claims against the Company or its affiliates.     (d) Executive acknowledges that Executive has had the opportunity to fully   review this Agreement and, if Executive so chooses, to consult with counsel, and is fully aware   of Executive’s rights and obligations under this Agreement.   5. Executive’s Release of Claims.  In exchange for the Company’s promises set forth   herein, all of which are good and valuable consideration, Executive hereby covenants not to sue   and releases and forever discharges the Company, its owners, parents, subsidiaries, attorneys,   insurers, agents, employees, stockholders, directors, officers, affiliates, predecessors and   successors of and from any and all rights, claims, actions, demands, causes of action, obligations,   attorneys’ fees, costs, damages, and liabilities of whatever kind or nature, in law or in equity, that   Executive may have (whether known or not known) (collectively, “Claims”), accruing to   Executive as of the Effective Date, that Executive has ever had, including but not limited to   Claims based on and/or arising under Title VII of the Civil Rights Act of 1964, as amended, The   Americans with Disabilities Act, The Family Medical Leave Act, The Equal Pay Act, The   Employee Retirement Income Security Act, The Fair Labor Standards Act, and/or the California   Fair Employment and Housing Act; The California Constitution, The California Government   Code, The California Labor Code, The Industrial Welfare Commission’s Orders, the Worker   Adjustment and Retraining Notification Act, California Labor Code sections 1400-1408, and any   and all other Claims Executive may have under any other federal, state or local Constitution,   Statute, Ordinance and/or Regulation; and all other Claims arising under common law including   but not limited to tort, express and/or implied contract and/or quasi-contract, arising out of or, in     





 







 -4-   114068972 v1    any way, related to Executive’s previous relationship with the Company as an employee,   consultant and/or director.  Furthermore, Executive acknowledges that Executive is waiving and   releasing any rights Executive may have under the Older Workers Benefit Protection Act and   Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, and that this waiver   and release is knowing and voluntary.  Executive acknowledges that the consideration given for   this waiver and release is in addition to anything of value to which Executive was already   entitled.  Executive further acknowledges that Executive has been advised by this writing that in   accordance with ADEA:   (a) Executive should consult with an attorney prior to   executing this Agreement;    (b) Executive has at least twenty-one (21) days within   which to consider this Agreement;    (c) Executive has up to seven (7) days following the   execution of this Agreement by the Executive to   revoke the Agreement by timely providing written   notice of revocation to the Company; and    (d) this Agreement shall not be effective until the   revocation period in Section 5(c) has expired without   revocation by Executive.   The Company and Executive agree that the release set forth in this Section 5 shall be and remain   in effect in all respects as a complete general release as to the matters released.  Notwithstanding   anything to the contrary herein, the Parties agree that Executive is not waiving any Claims he   may have that arise from or are incurred in connection with any of the following matters   (collectively, the “Excluded Claims”).  (i) the Company’s breach of its obligations under Section   3(a) above or under Section 3(e)(i) and 3(e)(ii) of the Employment Agreement; (ii) claims for   indemnification under Section 2802 of the California Labor Code, under the Company’s   Certificate of Incorporation or by-laws, pursuant to an indemnification agreement between you   and the Company and under any insurance policy of the Company or the established policies of   the Company or any affiliate thereof expressly providing for such indemnity between Executive   and the Company or any affiliate thereof; (iii) claims for any vested benefits under the terms of   any of the Company’s pension, profit sharing, health, welfare, stock option, restricted stock,   stock incentive, deferred compensation, supplemental compensation and any other welfare,   benefit or other plan of the Company; (iv) claims for workers’ compensation benefits; and (v)   any transactions or agreements entered into, and any occurrences, acts or omissions occurring,   after the Effective Date.   6. Civil Code Section 1542.  Executive and the Company acknowledge that they are   familiar with the provisions of California Civil Code Section 1542, which provides as follows:      A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS   WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO   EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING   THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST     





 







 -5-   114068972 v1    HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT   WITH THE DEBTOR.      Executive, being aware of said Code section, agrees to expressly waive any rights   Executive may have thereunder (except with respect to Excluded Claims), as well as under any   other statute or common law principles of similar effect.   7. Labor Code Section 206.5.  Upon receipt by Executive of the “Accrued Obligations”   (as such term is defined in the Employment Agreement) including all of his salary and unused   vacation time, each accrued through the Termination Date, Executive acknowledges that these   payments represent all such monies due to Executive through the Termination Date.  In light of   the payment by the Company of all wages due, or to become due to Executive (excluding any   additional amounts payable to Executive under Section 3(e) of the Employment Agreement),   California Labor Code Section 206.5 is not applicable to the Parties hereto.  That section   provides in pertinent part as follows:      No employer shall require the execution of any release of any   claim or right on account of wages due, or to become due, or made   as an advance on wages to be earned, unless payment of such   wages has been made.   8. Governing Law.  This Agreement will be governed by the internal substantive laws,   but not the choice of law rules, of the State of California.   9. Assignment.  This Agreement and all rights under this Agreement will be binding   upon and inure to the benefit of and be enforceable by the Parties hereto and their respective   owners, agents, officers, stockholders, employees, directors, attorneys, insurers, subsidiaries,   parents, affiliates, successors, personal or legal representatives, executors, administrators, heirs,   distributes, devisees, legatees, and assigns.  This Agreement is personal in nature, and none of   the Parties to this Agreement will, without the written consent of the other, assign or transfer this   Agreement or any right or obligation under this Agreement to any other person or entity; except   that the rights and obligations of the Company under this Agreement may be assigned (without   the consent of the Executive) to an entity which becomes the successor to the Company as the   result of a merger or other corporate reorganization or similar transaction or sale of substantially   all the assets to a successor which continues the business of the Company or any other subsidiary   of the Company.   10. Notices.  The terms of Section 10 of the Employment Agreement are also applicable   to this Agreement.   11. Integration and Interpretation.  This Agreement, and the surviving provisions of   the Employment Agreement, represents the entire agreement and understanding between the   parties as to the subject matter hereof and supersedes all prior agreements whether written or   oral.  The terms of this Agreement have been voluntarily agreed to by Executive and Company,   and the language used in this Agreement shall be deemed to be the language chosen to express   the mutual intent of the Parties.  This Agreement shall be construed without regard to any   presumption or rule requiring construction against Company or Executive, or in favor of the   Party receiving a particular benefit under this Agreement.     





 







 -6-   114068972 v1    12. Modification.  This Agreement may only be amended in a writing signed by   Executive and an authorized representative of the Company and which expressly references that   this Agreement is being amended.  No waiver, alteration, or modification of any of the   provisions of this Agreement will be binding unless in writing and signed by the party against   whom enforcement of the change or modification is sought.  Failure or delay on the part of either   party hereto to enforce any right, power, or privilege hereunder will not be deemed to constitute   a waiver thereof.  Additionally, a waiver by either party or a breach of any promise hereof by the   other party will not operate as or be construed to constitute a waiver of any subsequent waiver by   such other party.   13. Severability.  Whenever possible, each provision of this Agreement will be   interpreted in such a manner as to be effective and valid under applicable law, but if any   provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under   any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will   not affect any other provision or any other jurisdiction, but this Agreement will be reformed,   construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision   had never been contained herein.   14. No Representations.  Each Party represents that it has had the opportunity to consult   with an attorney, and has carefully read and understands the scope and effect of the provisions of   this Agreement.  Neither Party has relied upon any representations or statements made by any   other Party hereto which are not specifically set forth in this Agreement.  By entering into this   Agreement, the Company is not acknowledging or admitting any fault, wrongdoing, or liability   on its part in any way.   15. Authority.  The Company represents and warrants that the undersigned has the   authority to act on behalf of the Company and to bind the Company and all who may claim   through it to the terms and conditions of this Agreement.  Executive represents and warrants that   he has the capacity to act on his own behalf and on behalf of all who might claim through   Executive to bind them to the terms and conditions of this Agreement.  Each Party warrants and   represents that there are no liens or claims of lien or assignments in law or equity or otherwise of   or against any of the claims or causes of action released herein.   16. Voluntary Execution of Agreement.  This Agreement is executed voluntarily and   without any duress or undue influence on the part or behalf of the Parties hereto, with the full   intent of releasing all claims.  The Parties acknowledge that:   (a) They have read this Agreement;   (b) They have been represented in the preparation, negotiation, and execution of   this Agreement by legal counsel of their own choice or that they have   voluntarily declined to seek such counsel;   (c) They understand the terms and consequences of this Agreement and of the   releases it contains; and   (d) They are fully aware of the legal and binding effect of this Agreement.   17. Execution in Multiple Counterparts.  This Agreement may be executed in multiple   counterparts, each of which when together shall be deemed to constitute the executed original,     





 







 -7-   114068972 v1    and each counterpart shall have the same force and effect as an original and shall constitute an   effective, binding agreement on the part of the undersigned.   IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the   dates shown below.      [__________________]  REALD INC.   By:   By:       [NAME/TITLE]      Dated:   Dated:              





 







                EXHIBIT B   EMPLOYEE INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT           





 







    50825782 v1  -1-            EMPLOYEE INVENTION ASSIGNMENT AND    CONFIDENTIALITY AGREEMENT        In consideration of, and as a condition to, my employment with RealD Inc., a Delaware    corporation (the “Company”), I hereby represent to, and agree with, the Company as follows:    1.  Purpose of Agreement.  I understand that the Company is engaged in a    continuous program of research, development, production and marketing in connection with its    business and that it is critical for the Company to preserve and protect its “Proprietary    Information” (as defined in Section 7 below), its rights in “Inventions” (as defined in Section 2    below) and in all related intellectual property rights.  Accordingly, I am entering into this    Employee Invention Assignment and Confidentiality Agreement (this “Agreement”) as a    condition of my employment with the Company, whether or not I am expected to create    inventions of value for the Company.    2.  Disclosure of Inventions.  I will promptly disclose in confidence to the Company    all inventions, improvements, designs, original works of authorship, formulas, processes,    compositions of matter, computer software programs, databases, mask works and trade secrets    (the “Inventions”) that I make or conceive or first reduce to practice or create, either alone or    jointly with others, during the period of my employment, whether or not in the course of my    employment, and whether or not such Inventions are patentable, copyrightable or protectible    as trade secrets.    3.  Work for Hire; Assignment of Inventions.  I acknowledge and agree that any    copyrightable works prepared by me within the scope of my employment are “works for hire”    under the Copyright Act and that the Company will be considered the author and owner of such    copyrightable works.  I agree that all Inventions that (i) are developed using equipment,    supplies, facilities or trade secrets of the Company, (ii) result from work performed by me for    the Company, or (iii) relate to the Company’s business or current or anticipated research and    development (the “Assigned Inventions”), will be the sole and exclusive property of the    Company and are hereby irrevocably assigned by me to the Company.    4.  Labor Code Section 2870 Notice.  I have been notified and understand that the    provisions of Sections 3 and 5 of this Agreement do not apply to any Assigned Invention that    qualifies fully under the provisions of Section 2870 of the California Labor Code, which states as    follows:    ANY  PROVISION  IN  AN  EMPLOYMENT  AGREEMENT WHICH  PROVIDES    THAT AN EMPLOYEE SHALL ASSIGN, OR OFFER TO ASSIGN, ANY OF HIS    OR HER RIGHTS IN AN INVENTION TO HIS OR HER EMPLOYER SHALL NOT    APPLY  TO AN  INVENTION THAT  THE  EMPLOYEE DEVELOPED  ENTIRELY    ON  HIS  OR  HER  OWN  TIME  WITHOUT  USING  THE  EMPLOYER’S    EQUIPMENT,  SUPPLIES,  FACILITIES,  OR  TRADE  SECRET  INFORMATION    EXCEPT FOR THOSE INVENTIONS THAT EITHER: (1) RELATE AT THE TIME     





 







    50825782 v1  -2-            OF CONCEPTION OR REDUCTION TO PRACTICE OF THE  INVENTION TO    THE  EMPLOYER’S  BUSINESS,  OR  ACTUAL  OR  DEMONSTRABLY    ANTICIPATED RESEARCH OR DEVELOPMENT OF THE EMPLOYER; OR  (2)    RESULT  FROM  ANY WORK  PERFORMED  BY  THE  EMPLOYEE  FOR  THE    EMPLOYER.    TO  THE  EXTENT  A  PROVISION  IN  AN  EMPLOYMENT    AGREEMENT  PURPORTS  TO  REQUIRE  AN  EMPLOYEE  TO  ASSIGN  AN    INVENTION  OTHERWISE  EXCLUDED  FROM  BEING  REQUIRED  TO  BE    ASSIGNED  UNDER  CALIFORNIA  LABOR  CODE  SECTION  2870(a),  THE    PROVISION  IS  AGAINST  THE  PUBLIC  POLICY  OF  THIS  STATE  AND  IS    UNENFORCEABLE.    5.  Assignment of Other Rights.  In addition to the foregoing assignment of    Assigned Inventions to the Company, I hereby irrevocably transfer and assign to the Company:    (i) all worldwide patents, patent applications, copyrights, mask works, trade secrets and other    intellectual property rights in any Assigned Inventions; and (ii) any and all “Moral Rights” (as    defined below) that I may have in or with respect to any Assigned Inventions.  I also hereby    forever waive and agree never to assert any and all Moral Rights I may have in or with respect to    any Assigned Inventions, even after termination of my work on behalf of the Company. “Moral    Rights” mean any rights to claim authorship of an Assigned Inventions, to object to or prevent    the modification of any Assigned Inventions, or to withdraw from circulation or control the    publication or distribution of any Assigned Inventions, and any similar right, existing under    judicial or statutory law of any country in the world, or under any treaty, regardless of whether    or not such right is denominated or generally referred to as a “moral right”.    6.  Assistance.  I agree to assist the Company in every proper way to obtain for the    Company and enforce patents, copyrights, mask work rights, trade secret rights and other legal    protections for the Company’s Assigned Inventions in any and all countries.  I will execute any    documents that the Company may reasonably request for use in obtaining or enforcing such    patents, copyrights, mask work rights, trade secrets and other legal protections.  My obligations    under this paragraph will continue beyond the termination of my employment with the    Company, provided that the Company will compensate me at a reasonable rate after such    termination for time or expenses actually spent by me at the Company’s request on such    assistance.  I appoint the Secretary of the Company as my attorney‐in‐fact to execute    documents on my behalf for this purpose.    7.  Proprietary Information.  I understand that my employment by the Company    creates a relationship of confidence and trust with respect to any information of a confidential    or secret nature that may be disclosed to me by the Company that relates to the business of the    Company or to the business of any parent, subsidiary, affiliate, customer or supplier of the    Company or any other party with whom the Company agrees to hold information of such party    in confidence (the “Proprietary Information”).  Such Proprietary Information includes, but is not    limited to, Assigned Inventions, marketing plans, product plans, business strategies, financial    information, forecasts, personnel information, customer lists and domain names.     





 







    50825782 v1  -3-            8.  Confidentiality.  At all times, both during my employment and after its    termination, I will keep and hold all such Proprietary Information in strict confidence and trust.  I    will not use or disclose any Proprietary Information without the prior written consent of the    Company, except as may be necessary to perform my duties as an employee of the Company for    the benefit of the Company.  Upon termination of my employment with the Company, I will    promptly deliver to the Company all documents and materials of any nature pertaining to my    work with the Company.  I will not take with me any documents or materials or copies thereof    containing any Proprietary Information.    9.  No Breach of Prior Agreement.  I represent that my performance of all the    terms of this Agreement and my duties as an employee of the Company will not breach any    invention assignment, proprietary information, confidentiality or similar agreement with any    former employer or other party.  I represent that I will not bring with me to the Company or use    in the performance of my duties for the Company any documents or materials or intangibles of a    former employer or third party that are not generally available to the public or have not been    legally transferred to the Company.    10.  Efforts; Duty Not to Compete.  I understand that my employment with the    Company requires my undivided attention and effort during normal business hours. While I am    employed by the Company, I will not, without the Company’s express prior written consent,    provide services to, or assist in any manner, any business or third party which competes with    the current or planned business of the Company.    11.  Notification.  I hereby authorize the Company to notify my actual or future    employers of the terms of this Agreement and my responsibilities hereunder.    12.  Non‐Solicitation of Employees/Consultants.  During my employment with the    Company and for a period of one (1) year thereafter, I will not directly or indirectly solicit away    employees or consultants of the Company for my own benefit or for the benefit of any other    person or entity.    13.  Non‐Solicitation of Suppliers/Customers.  During my employment with the    Company and after termination of my employment, I will not directly or indirectly solicit or take    away suppliers or customers of the Company if the identity of the supplier or customer or    information about the supplier or customer relationship is a trade secret or is otherwise deemed    confidential information within the meaning of California law.    14.  Injunctive Relief.  I understand that in the event of a breach or threatened    breach of this Agreement by me the Company may suffer irreparable harm and will therefore be    entitled to injunctive relief to enforce this Agreement.    15.  Governing Law; Severability.  This Agreement will be governed by and    construed in accordance with the laws of the State of California, without giving effect to that    body of laws pertaining to conflict of laws.  If any provision of this Agreement is determined by    any court or arbitrator of competent jurisdiction to be invalid, illegal or unenforceable in any     





 







    50825782 v1  -4-            respect, such provision will be enforced to the maximum extent possible given the intent of the    parties hereto.  If such clause or provision cannot be so enforced, such provision shall be    stricken from this Agreement and the remainder of this Agreement shall be enforced as if such    invalid, illegal or unenforceable clause or provision had (to the extent not enforceable) never    been contained in this Agreement.  Notwithstanding the forgoing, if the value of this Agreement    based upon the substantial benefit of the bargain for any party is materially impaired, which    determination as made by the presiding court or arbitrator of competent jurisdiction shall be    binding, then this Agreement will not be enforceable against such affected party and both    parties agree to renegotiate such provision(s) in good faith.    16.  Counterparts.  This Agreement may be executed in any number of counterparts,    each of which when so executed and delivered will be deemed an original, and all of which    together shall constitute one and the same agreement.    17.  Titles and Headings.  The titles, captions and headings of this Agreement are    included for ease of reference only and will be disregarded in interpreting or construing this    Agreement.  Unless otherwise specifically stated, all references herein to “sections” and    “exhibits” will mean “sections” and “exhibits” to this Agreement.    18.  Entire Agreement.  This Agreement and the documents referred to herein    constitute the entire agreement and understanding of the parties with respect to the subject    matter of this Agreement, and supersede all prior understandings and agreements, whether oral    or written, between or among the parties hereto with respect to the specific subject matter    hereof.    19.  Amendment and Waivers.  This Agreement may be amended only by a written    agreement executed by each of the parties hereto.  No amendment of or waiver of, or    modification of any obligation under this Agreement will be enforceable unless set forth in a    writing signed by the party against which enforcement is sought.  Any amendment effected in    accordance with this section will be binding upon all parties hereto and each of their respective    successors and assigns.  No delay or failure to require performance of any provision of this    Agreement shall constitute a waiver of that provision as to that or any other instance.  No    waiver granted under this Agreement as to any one provision herein shall constitute a    subsequent waiver of such provision or of any other provision herein, nor shall it constitute the    waiver of any performance other than the actual performance specifically waived.    20.  Successors and Assigns; Assignment.  Except as otherwise provided in this    Agreement, this Agreement, and the rights and obligations of the parties hereunder, will be    binding upon and inure to the benefit of their respective successors, assigns, heirs, executors,    administrators and legal representatives.  The Company may assign any of its rights and    obligations under this Agreement.  No other party to this Agreement may assign, whether    voluntarily or by operation of law, any of its rights and obligations under this Agreement, except    with the prior written consent of the Company.     





 







    50825782 v1  -5-            21.  Further Assurances.  The parties agree to execute such further documents and    instruments and to take such further actions as may be reasonably necessary to carry out the    purposes and intent of this Agreement.    22.  “At Will” Employment.  I understand that this Agreement does not constitute a    contract of employment or obligate the Company to employ me for any stated period of time.  I    understand that if I am an “at will” employee of the Company, my employment can be    terminated at any time, for any reason or for no reason, by either the Company or myself.  This    Agreement shall be effective as of the first day of my employment by the Company.        RealD Inc.:            By:  __________________________                Michael V. Lewis                Chief Executive Officer            Date:  __________________________    Employee:                         Signature        Print Name: _______________________         Date:  __________________________