Exhibit 10.11


 


REALD INC.


 


INDEMNIFICATION
AGREEMENT


 


THIS INDEMNIFICATION AGREEMENT is made and entered into as of the 8th day of April, 2010 (the “Agreement”), by and
between RealD Inc., a Delaware corporation (the “Company”), and Michael Lewis
(“Indemnitee”), with reference to the following facts:


 


A.            The Company desires the benefits of having
Indemnitee serve as an officer and/or director secure in the knowledge that any
expenses, liability and/or losses incurred by him or her in his or her good
faith service to the Company will be borne by the Company or its successors and
assigns.


 


B.            Indemnitee is willing to
serve in his or her position with the Company only on the condition that he or
she be indemnified for such expenses, liability and/or losses.


 


C.            The Company and Indemnitee
recognize the increasing difficulty in obtaining liability insurance for
directors, officers and agents of a corporation at reasonable cost.


 


D.            The Company and Indemnitee
recognize that there has been an increase in litigation against corporate
directors, officers and agents.


 


E.             Article X of the
Company’s Certificate of Incorporation, as amended (the “Certificate”),
provides for the mandatory indemnification, to the fullest extent permitted by
Delaware law, of directors and officers of the Company, from and against any
and all expense, liability and loss reasonably incurred or suffered by such
persons in connection with their service to the Company, and provides that such
right to indemnification is not exclusive of any other rights which any person
may have or later acquire under any statute, provision of the Certificate,
bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Article VIII of the Company’s bylaws (“Bylaws”) provides for the mandatory
indemnification of any officer or director, or any former officer or director,
against any and all of the expenses, liabilities or other matters referred to
in or covered by Section 145 of the Delaware General Corporation Law.


 


NOW, THEREFORE, the parties hereby agree as follows:


 


1.            Definitions. For purposes of
this Agreement:


 


1.1          “Agent” shall mean any
person who is or was a director, officer, employee or agent of the Company, or
a subsidiary of the Company whether serving in such capacity or as a director, officer,
employee, agent, fiduciary or other official of another corporation, joint
venture, trust or other enterprise at the request of, for the convenience of,
or to represent the interests of the Company or a subsidiary of the Company.


 


1.2          “Change of Control” shall
mean, solely for purposes of this Agreement, the occurrence of any of the
following events after the date of this Agreement:


 


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(a)           A change in the composition
of the board of directors of the Company (the “Board”), as a result of which at
least one-half (1/2) of the incumbent directors are not directors who either
(a) had been directors of the Company twenty-four (24) months prior to
such change or (b) were elected, or nominated for election, to the Board
with the affirmative votes of at least a majority of the directors who had been
directors of the Company twenty-four (24) months prior to such change and who
were still in office at the time of the election or nomination;


 


(b)           Any “person” (as such term
is used in sections 13(d) and 14(d) of the Securities Exchange Act of
1934 (the “Exchange Act”), as amended), through the acquisition or aggregation
of securities is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing twenty-five percent (25%) or more of the
combined voting power of the Company’s then outstanding securities ordinarily
(and apart from rights accruing under special circumstances) having the right
to vote at elections of directors (the “Capital Stock”); provided, however,
that any change in ownership of the Company’s securities by any person
resulting solely from a reduction in the aggregate number of outstanding shares
of Capital Stock, and any decrease thereafter in such person’s ownership of
securities, shall be disregarded until such person increases in any manner,
directly or indirectly, such person’s beneficial ownership of any securities of
the Company; or


 


(c)           Any merger, consolidation or
combination of the Company with or into another person (other than a subsidiary
of the Company) and the outstanding voting securities of the Company are
reclassified into, converted for or converted into the right to receive any
property or security, or the Company sells, conveys, transfers or leases all or
substantially all of its properties and assets to any other person (other than
a subsidiary of the Company); provided that none
of these circumstances will be a Change of Control if persons that beneficially
own the voting securities of the Company immediately prior to the transaction
own, directly or indirectly, a majority of the voting securities of the
surviving or transferee person immediately after the transaction.


 


1.3          “Disinterested Director”
shall mean a director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is being sought by Indemnitee.


 


1.4          “Expenses” shall include,
without limitation, (a) all reasonable direct and indirect costs incurred,
paid or accrued, (b) all reasonable attorneys’ fees, retainers, court
costs, transcripts, fees of experts, witness fees, travel expenses, food and
lodging expenses while traveling, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service, freight or other transportation
fees and expenses, (c) all other reasonable disbursements and
out-of-pocket expenses, and (d) amounts paid in settlement, to the extent
not prohibited by Delaware Law.


 


1.5          “Independent Counsel” shall
mean a law firm or a member of a law firm that neither is presently nor in the
past five years has been retained to represent: (a) the Company, the
Board, any committee of the Board, an affiliate of the Company or Indemnitee in
any matter material to either party or (b) any other party to the Proceeding
giving rise to a claim for indemnification hereunder.  Notwithstanding the foregoing, the term
“Independent Counsel”


 


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shall
not include any person who, under the applicable standards of professional
conduct then prevailing would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine Indemnitee’s right
to indemnification under this Agreement.


 


1.6           “Liabilities” shall mean
liabilities of any type whatsoever, including, but not limited to, judgments,
arbitral awards, fines, ERISA or other excise taxes and penalties, and amounts
paid in settlement (including all interest, assessments or other charges paid
or payable in connection with any of the foregoing).


 


1.7           “Delaware Law” means the
Delaware General Corporation Law, as amended and in effect from time to time or
any successor or other statutes of Delaware having similar import and effect.


 


1.8           “Proceeding” shall mean any
pending, threatened or completed action, hearing, suit or any other proceeding,
whether civil, criminal, arbitrative, administrative, investigative or any
alternative dispute resolution mechanism, including without limitation any
Proceeding brought by or in the right of the Company, in which Indemnitee was,
is or will be involved as a party, witness or otherwise, by reason of the fact
that Indemnitee is or was an Agent of the Company, by reason of any action
taken by him or her or any inaction on his or her part while acting as an Agent
of the Company, whether or not he or she is acting or serving in any such
capacity at the time any such Proceeding commences or is ongoing.


 


2.             Employment Rights and Duties. Subject to any
other obligations imposed on either of the parties by contract or by law, and with
the understanding that this Agreement is not intended to confer employment
rights on either party which they did not possess on the date of its execution,
Indemnitee agrees to serve as a director or officer so long as he or she is
duly appointed or elected and qualified in accordance with the applicable
provisions of the Certificate and Bylaws of the Company or any subsidiary of
the Company and until such time as he or she resigns or fails to stand for
election or until his or her employment terminates. Indemnitee may from time to
time also perform other services at the request, or for the convenience of, or
otherwise benefiting the Company. Indemnitee may at any time and for any reason
resign or be removed from such position (subject to any other contractual
obligation or other obligation imposed by operation of law), in which event the
Company shall have no obligation under this Agreement to continue Indemnitee in
any such position. For sake of clarity, in the event of such resignation or
removal, this Agreement shall survive according to its terms.


 


3.             Directors’ and Officers’ Insurance.


 


3.1          The Company hereby covenants
and agrees that, so long as Indemnitee shall continue to serve as a director or
officer of the Company and thereafter so long as Indemnitee shall be subject to
any possible Proceeding, the Company, subject to Section 3.3, shall
maintain directors’ and officers’ insurance in full force and effect.


 


3.2          In all policies of
directors’ and officers’ insurance, Indemnitee shall be named as an insured in
such a manner as to provide Indemnitee the same rights and benefits, subject to
the same limitations, as are accorded to the Company’s directors or officers
most favorably insured by such policy.


 


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3.3          The Company shall maintain
directors’ and officers’ insurance unless the Board determines in good faith
that such insurance is not reasonably available, the premium costs for such
insurance are disproportionate to the amount and/or scope of coverage provided
to the insureds (other than the Company), or the coverage provided by such
insurance is limited by exclusions so as to provide an insufficient benefit to
the insureds (other than the Company); provided, however, that if Indemnitee is
not then serving as a director of the Company, then the Company must provide
notice to Indemnitee, no less than thirty (30) days prior to the effective date
of cancellation, expiration or non-renewal of the then-current directors’ and
officers’ insurance policy, of the Board’s determination, or the possibility of
such a determination, to discontinue maintenance of directors’ and officers’
insurance in accordance with the exception set forth in this Section 3.3,
and the Company shall in good faith request that the Board reconsider any such
determination based on information that Indemnitee or his or her insurance
broker is able to provide concerning the availability, costs and benefits of
continued insurance coverage. Failure of the Company to provide the required
notice shall render the exception to the obligation to continue to maintain
directors’ and officers’ insurance set forth in this Section 3.3
inapplicable. In the event the Company properly relies on the exception to the
obligation to continue to maintain directors’ and officers’ insurance set forth
in this Section 3.3, the Company shall purchase, prior to the deadline
therefor, the maximum “option extension period,” “discovery period” or similar
benefit available under the last directors’ and officers’ insurance policy in
effect, providing to Indemnitee continuing coverage following policy expiration
for a premium which is fixed by the terms of such last policy in effect; or, if
such coverage may be purchased only by Indemnitee, the Company shall pay
directly for, or reimburse Indemnitee for the cost of, Indemnitee’s purchase of
such coverage.


 


3.4          If, at the time of the
receipt by the Company of a notice of a “Claim” as that term or any similar
term is defined under any policy of directors’ and officers’ liability
insurance maintained by the Company, the Company shall give prompt notice of
the commencement of such Claim to the insurer(s) in accordance with the
procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of Indemnitee, all amounts payable as a result of such Claim in accordance with
the terms of such policies.


 


4.             Indemnification. The Company
shall indemnify Indemnitee to the fullest extent authorized or permitted by
Delaware Law in effect on the date hereof, and as Delaware Law may from time to
time be amended (but, in the case of any such amendment, only to the extent
such amendment permits the Company to provide broader indemnification rights
than Delaware Law permitted the Company to provide before such amendment).
Without in any way diminishing the scope of the indemnification provided by
this Section 4, the Company shall indemnify Indemnitee if and whenever he
or she is or was a witness, party or is threatened to be made a witness or a
party to any Proceeding, against all Expenses and Liabilities actually and
reasonably incurred by Indemnitee or on his or her behalf in connection with
the investigation, defense, settlement or appeal of such Proceeding. In
addition to, and not as a limitation of, the foregoing, the rights of
indemnification of Indemnitee provided under this Agreement shall include those
rights set forth in Sections 5, 6 and 7 below.


 


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5.             Payment of Expenses.


 


5.1          All Expenses incurred by or
on behalf of Indemnitee shall be advanced by the Company to Indemnitee within
thirty (30) days after the receipt by the Company of a written request for such
advance which may be made from time to time, whether prior to or after final
disposition of a Proceeding (unless there has been a final determination by a
court of competent jurisdiction or arbitrator that Indemnitee is not entitled
to be indemnified for such Expenses). Indemnitee’s entitlement to advancement
of Expenses shall include those incurred in connection with any Proceeding by
Indemnitee seeking a determination, an adjudication or an award in arbitration
pursuant to this Agreement. The requests shall reasonably evidence the Expenses
incurred by Indemnitee in connection therewith. Indemnitee hereby undertakes to
repay the amounts advanced pursuant to this Agreement if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified pursuant to the
terms of this Agreement. Indemnitee shall, at the Company’s request, provide an
additional undertaking to such effect in connection with any Proceeding in
which Indemnitee requests advancement of Expenses hereunder.


 


5.2          Notwithstanding any other
provision in this Agreement, to the extent that Indemnitee has been successful
on the merits or otherwise in defense of any Proceeding, Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by Indemnitee
in connection therewith.


 


6.             Procedure for Determination of Entitlement to Indemnification.


 


6.1          Whenever Indemnitee believes
that he or she is entitled to indemnification pursuant to this Agreement,
Indemnitee shall submit a written request for indemnification (the
“Indemnification Request”) to the Company to the attention of the Chief
Executive Officer with a copy to the Secretary. This request shall include
documentation or information which is necessary for the determination of
entitlement to indemnification and which is reasonably available to Indemnitee.
Determination of Indemnitee’s entitlement to indemnification shall be made no
later than sixty (60) days after receipt of the Indemnification Request. The
Chief Executive Officer or the Secretary shall, promptly upon receipt of
Indemnitee’s Indemnification Request, advise the Board in writing that
Indemnitee has made such request for indemnification.


 


6.2          Following receipt by the
Company of an Indemnification Request, an initial determination, if required by
applicable law, with respect to Indemnitee’s entitlement thereto shall be made
in the specific case by one of the following four methods, which shall be at
the election of the Board of Directors: (1) by a majority vote of the
Disinterested Directors, even though less than a quorum, (2) by a committee
of Disinterested Directors designated by a majority vote of the Disinterested
Directors, even though less than a quorum, (3) if there are no
Disinterested Directors or if the Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to Indemnitee, or (4) by a majority vote of the
stockholders of the Company. Notwithstanding the foregoing, following a Change
of Control, the determination shall be made by Independent Counsel pursuant to
clause (3) above.   The Company
agrees to bear any and all Expenses reasonably


 


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incurred by Indemnitee or the Company in connection with the
determination of Indemnitee’s entitlement to indemnification by any of the
above methods.


 


7.             Presumptions and Effect of Certain Proceedings. Upon making an Indemnification Request, Indemnitee
shall be presumed to be entitled to indemnification under this Agreement and
the Company shall have the burden of proof by clear and convincing evidence to
overcome that presumption in reaching any contrary determination. The
termination of any Proceeding by judgment, order, settlement, arbitration award
or conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, (a) adversely affect the rights of Indemnitee to
indemnification except as indemnification may be expressly prohibited under
this Agreement, (b) create a presumption that Indemnitee did not act in
good faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Company or (c) with respect to any
criminal action or proceeding, create a presumption that Indemnitee had
reasonable cause to believe that his or her conduct was unlawful.


 


8.             Remedies of Indemnitee in Cases of Determination not to Indemnify or to
Advance Expenses.


 


8.1          In the event that
(a) an initial determination is made that Indemnitee is not entitled to
indemnification, (b) advances for Expenses are not made when and as required
by this Agreement, (c) payment has not been timely made following a
determination of entitlement to indemnification pursuant to this Agreement or
(d) Indemnitee otherwise seeks enforcement of this Agreement, Indemnitee
shall be entitled to a final adjudication in an appropriate court of the State
of Delaware of his or her entitlement to such indemnification or advance.
Alternatively, Indemnitee at his or her option may seek an award in
arbitration. If the parties are unable to agree on an arbitrator within twenty
(20) days, the parties shall provide JAMS (“JAMS”) with a statement of the
nature of the dispute and the desired qualifications of the arbitrator. JAMS
will then provide a list of three available arbitrators. Each party may strike
one of the names on the list, and the remaining person will serve as the
arbitrator. If both parties strike the same person, JAMS will select the
arbitrator from the other two names. The arbitration award shall be made within
ninety (90) days following the demand for arbitration. Except as set forth
herein, the provisions of Delaware law shall apply to any such arbitration. In
any such proceeding or arbitration Indemnitee shall be presumed to be entitled
to indemnification under this Agreement and the Company shall have the burden
of proof by clear and convincing evidence to overcome that presumption.


 


8.2          A court or arbitrator to
which Indemnitee may apply for enforcement of this Agreement shall give no
deference or weight to an initial determination made by the Company pursuant to
the methods set forth in Section 6.2 above that, in whole or in part,
Indemnitee is not entitled to indemnification.


 


8.3          If an initial determination
is made or deemed to have been made pursuant to the terms of this Agreement
that Indemnitee is entitled to indemnification, the Company shall be bound by
such determination in the absence of (a) a misrepresentation of a material
fact by Indemnitee in the request for indemnification or (b) a specific
finding (which has become final) by a court of competent jurisdiction or
arbitrator that all or any part of such indemnification is expressly prohibited
by law.


 


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8.4           The Company and Indemnitee
agree herein that a monetary remedy for breach of this Agreement, at some later
date, will be inadequate, impracticable and difficult to prove, and further
agree that such breach would cause Indemnitee irreparable harm. Accordingly,
the Company and Indemnitee agree that Indemnitee shall be entitled to temporary
and permanent injunctive relief to enforce this Agreement without the necessity
of proving actual damages or irreparable harm. The Company and Indemnitee
further agree that Indemnitee shall be entitled to such injunctive relief,
including temporary restraining orders, preliminary injunctions and permanent
injunctions, without the necessity of posting bond or other undertaking in
connection therewith. Any such requirement of bond or undertaking is hereby
waived by the Company, and the Company acknowledges that in the absence of such
a waiver, a bond or undertaking may be required by the court.


 


8.5           The Company agrees not to
assert that the procedures and presumptions of this Agreement are not valid,
binding and enforceable. The Company further agrees to stipulate in any such
court or before any such arbitrator that the Company is bound by all the
provisions of this Agreement and not to make any assertion to the contrary.


 


8.6           Expenses reasonably incurred
by Indemnitee in connection with his or her Indemnification Request under,
seeking enforcement of, or to recover damages for breach of this Agreement
shall be borne and advanced by the Company, unless a court of competent
jurisdiction or arbitrator determines that each and every material assertion
made by Indemnitee in such action was either not made in good faith or was
frivolous.


 


9.             Other Rights to Indemnification. Indemnitee’s
rights of indemnification and advancement of expenses provided by this
Agreement shall not be deemed exclusive of any other rights to which Indemnitee
may now or in the future be entitled under applicable law, the Certificate, the
Bylaws, an employment agreement, a vote of stockholders or Disinterested
Directors, insurance or other financial arrangements or otherwise.


 


10.           Limitations
on Indemnification. No
indemnification pursuant to Section 4 shall be paid by the Company nor
shall Expenses be advanced pursuant to Section 4:


 


10.1       Insurance. To the extent that Indemnitee is reimbursed pursuant
to such insurance as may exist for Indemnitee’s benefit. Notwithstanding the
availability of such insurance, Indemnitee also may claim indemnification from
the Company pursuant to this Agreement by assigning to the Company any claims
under such insurance to the extent Indemnitee is paid by the Company. Indemnitee
shall reimburse the Company for any sums he or she receives as indemnification
from other sources to the extent of any amount paid to him or her for that
purpose by the Company;


 


10.2       Section 16(b). On account and to the extent of any wholly or partially
successful claim against Indemnitee for an accounting of profits made from the
purchase or sale by Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) or the Securities Exchange Act of 1934,
as amended, and amendments thereto or similar provisions of any federal, state
or local statutory law; or


 


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10.3        Indemnitee’s
Proceedings. In connection with all or
any part of a Proceeding which is initiated or maintained by or on behalf of
Indemnitee, or any Proceeding by Indemnitee against the Company or its
directors, officers, employees or other agents, unless (a) such
indemnification is expressly required to be made by Delaware Law, (b) the
Proceeding was authorized by a majority of the Disinterested Directors,
(c) there has been a Change of Control, ,(d) such indemnification is
provided by the Company, in its sole discretion, pursuant to the powers vested
in the Company under Delaware Law or (e) Indemnitee is entitled to indemnification
pursuant to Section 8 of the Agreement.


 


11.           Duration
and Scope of Agreement; Binding Effect. This Agreement
shall continue so long as Indemnitee shall be subject to any possible
Proceeding. This Agreement shall be binding upon the Company and its successors
and assigns (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or
assets of the Company) and shall inure to the benefit of Indemnitee and his or
her spouse, assigns, heirs, devisees, executors, administrators and other legal
representatives.


 


12.           Notice by
Indemnitee and Defense of Claims. Indemnitee
agrees promptly to notify the Company in writing upon being served with any
summons, citation, subpoena, complaint, indictment, information or other
document relating to any matter which may be subject to indemnification
hereunder, whether civil, criminal, arbitrative, administrative or
investigative; but the omission so to notify the Company will not relieve it from
any liability which it may have to Indemnitee if such omission does not
actually prejudice the Company’s rights and, if such omission does prejudice
the Company’s rights, it will relieve the Company from liability only to the
extent of such prejudice; nor will such omission relieve the Company from any
liability which it may have to Indemnitee otherwise than under this Agreement.
With respect to any Proceeding:


 


12.1        The Company will be entitled
to participate therein at its own expense;


 


12.2        Except as otherwise provided
below, to the extent that it may wish, the Company jointly with any other
indemnifying party similarly notified will be entitled to assume the defense
thereof, with counsel reasonably satisfactory to Indemnitee. After notice from
the Company to Indemnitee of its election so to assume the defense thereof and
the assumption of such defense, the Company will not be liable to Indemnitee
under this Agreement for any attorney fees or costs subsequently incurred by
Indemnitee in connection with Indemnitee’s defense except as otherwise provided
below. Indemnitee shall have the right to employ his or her counsel in such
Proceeding but the fees and expenses of such counsel incurred after notice from
the Company of its assumption of the defense thereof and the assumption of such
defense shall be at the expense of Indemnitee unless (i) the employment of
counsel by Indemnitee has been authorized by the Company in writing,
(ii) Indemnitee shall have reasonably concluded that there is or is reasonably
likely to be a conflict of interest between the Company and Indemnitee in the
conduct of the defense of such action or (iii) the Company shall not in
fact have employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of counsel shall be at the expense of the
Company; and


 


12.3        The Company shall not be
liable to indemnify Indemnitee under this Agreement for any amounts paid in
settlement of any action or claim effected without its written


 


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consent. The Company shall not settle any action or claim which would
impose any limitation, payment obligation, cost or penalty on Indemnitee
without Indemnitee’s written consent. Neither the Company nor Indemnitee will
unreasonably withhold its consent to any proposed settlement.


 


12.4       Indemnitee shall provide
reasonable cooperation to the Company and counsel selected pursuant to Section 12.2
in connection with the defense of any Proceeding, including providing to the
Company and such counsel, upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
defense. Any Expenses reasonably incurred by Indemnitee in so cooperating shall
be borne by the Company and the Company hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.


 


13           Contribution.


 


13.1       Whether or not the
indemnification provided in Section 4 hereof is available, in respect of
any Proceeding in which the Company is jointly liable with Indemnitee (or would
be if joined in such Proceeding), the Company shall pay, in the first instance
and to the fullest extent permitted by applicable law, the entire amount of any
Expenses and Liabilities without requiring Indemnitee to contribute to such
payment and the Company hereby waives and, to the fullest extent permitted by
applicable law, relinquishes any right of contribution it may have against
Indemnitee with respect to such Expenses and Liabilities. The Company shall not
enter into any settlement of any Proceeding in which the Company is jointly
liable with Indemnitee (or would be if joined in such Proceeding) unless such
settlement provides for a full and final release of all claims asserted against
Indemnitee.


 


13.2       Without diminishing or
impairing the obligations of the Company set forth in Section 13.1, if,
for any reason, Indemnitee shall elect or be required to pay all or any portion
of any Expenses or Liabilities in any Proceeding in which the Company is
jointly liable with Indemnitee (or would be if joined in such Proceeding), the
Company shall contribute to the amount of Expenses and Liabilities actually and
reasonably incurred and paid or payable by Indemnitee in proportion to the
relative benefits received by the Company and all Agents of the Company, other
than Indemnitee, who are jointly liable with Indemnitee (or would be if joined
in such Proceeding), on the one hand, and Indemnitee, on the other hand, from the
transaction(s) from which such Proceeding arose; provided, however, that
the proportion determined on the basis of relative benefit may, to the extent
necessary to conform to law, be further adjusted by reference to the relative
fault of the Company and all Agents of the Company other than Indemnitee who
are jointly liable with Indemnitee (or would be if joined in such Proceeding),
on the one hand, and Indemnitee, on the other hand, in connection with the
events that resulted in such Expenses and Liabilities, as well as any other
equitable considerations that may be required to be considered under applicable
law. The relative fault of the Company and all Agents of the Company, other
than Indemnitee, who are jointly liable with Indemnitee (or would be if joined
in such Proceeding), on the one hand, and Indemnitee, on the other hand, shall
be determined by reference to, among other things, the degree to which their
actions were motivated by intent to gain personal profit or advantage, the
degree to which their liability is primary or secondary and the degree to which
their conduct is active or passive.


 


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13.3        The Company hereby agrees to
fully indemnify and hold Indemnitee harmless from any claims of contribution
which may be brought by Agents of the Company, other than Indemnitee, who may
be jointly liable with Indemnitee.


 


13.4        To the fullest extent permissible
under applicable law, if the indemnification provided for in this Agreement is
unavailable to Indemnitee for any reason whatsoever other than as set forth in Section 9,
the Company, in lieu of indemnifying Indemnitee, shall contribute to the Expenses
and Liabilities incurred by Indemnitee in connection with any claim relating to
an indemnifiable event under this Agreement, in such proportion as is deemed
fair and reasonable in light of all of the circumstances of such Proceeding in
order to reflect the relative benefits received by the Company and all Agents
of the Company, other than Indemnitee, who are jointly liable with Indemnitee
(or would be if joined in such Proceeding), on the one hand, and Indemnitee, on
the other hand, from the transaction(s) from which such Proceeding arose;
provided, however, that the proportion determined on the basis of relative
benefit may, to the extent necessary to conform to law, be further adjusted by
reference to the relative fault of the Company and all Agents of the Company
other than Indemnitee who are jointly liable with Indemnitee (or would be if
joined in such Proceeding), on the one hand, and Indemnitee, on the other hand,
in connection with the events that resulted in such Expenses and Liabilities,
as well as any other equitable considerations which may be required to be
considered under applicable law. The relative fault of the Company and all
Agents of the Company, other than Indemnitee, who are jointly liable with
Indemnitee (or would be if joined in such Proceeding), on the one hand, and
Indemnitee, on the other hand, shall be determined by reference to, among other
things, the degree to which their actions were motivated by intent to gain
personal profit or advantage, the degree to which their liability is primary or
secondary and the degree to which their conduct is active or passive.


 


14.          Period of
Limitations.   No legal action
shall be brought and no cause of action shall be asserted by or in the right of
the Company against Indemnitee, Indemnitee’s estate, spouse, heirs, executors
or personal or legal representatives after the expiration of two (2) years
from the date of accrual of such cause of action, and any claim or cause of
action of the Company shall be extinguished and deemed released unless asserted
by the timely filing of a legal action within such two year period; provided,
however, that if any shorter period of limitations is otherwise applicable to
any such cause of action, such shorter period shall govern.


 


15.          Other
Indemnification.   The Company hereby
acknowledges that Indemnitee may have certain rights to indemnification,
advancement of expenses and/or insurance provided by a third party (each, an “Other
Indemnitor”). The Company hereby agrees (i) that it is the indemnitor
of first resort (i.e., its obligations to Indemnitee are primary and any
obligation of an Other Indemnitor to advance expenses or to provide
indemnification for the same expenses or liabilities incurred by Indemnitee are
secondary), (ii) that it shall perform under this Agreement without regard
to any rights Indemnitee may have against an Other Indemnitor, and (iii) that
it shall be required to advance the full amount of expenses incurred by
Indemnitee and shall be liable for the full amount of all Expenses, judgments, penalties,
fines and amounts paid in settlement to the extent legally permitted and as
required by the terms of this Agreement and the Certificate of Incorporation or
Bylaws of the Company (or any other agreement between the Company and
Indemnitee), without regard to any rights Indemnitee may have against an Other
Indemnitor.    The Company further agrees
that no advancement or payment by an Other


 


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Indemnitor on behalf of Indemnitee with respect to
any claim for which Indemnitee has sought indemnification from the Company
shall affect the foregoing and the Other Indemnitors shall have a right of
contribution and/or be subrogated to the extent of such advancement or payment
to all of the rights of recovery of Indemnitee against the Company. The Company
and Indemnitee agree that each Other Indemnitor is an express third party
beneficiary of the terms of this Section.


 


16.         Miscellaneous
Provisions.


 


16.1       Severability;
Partial Indemnity.   If any
provision or provisions of this Agreement (or any portion thereof) shall be
held by a court of competent jurisdiction or arbitrator to be invalid, illegal
or unenforceable for any reason whatever: (a) such provision shall be
limited or modified in its application to the minimum extent necessary to avoid
the invalidity, illegality or unenforceability of such provision; (b) the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby; and (c) to
the fullest extent possible, the provisions of this Agreement shall be
construed so as to give effect to the intent manifested by the provision (or
portion thereof) held invalid, illegal or unenforceable. If Indemnitee is
entitled under any provision of this Agreement to indemnification by the
Company for some or a portion of any Expenses or Liabilities of any type
whatsoever incurred by him or her in the investigation, defense, settlement or
appeal of a Proceeding but not entitled to all of the total amount thereof, the
Company shall nevertheless indemnify Indemnitee for such total amount except as
to the portion thereof for which it has been determined pursuant to Section 6
hereof that Indemnitee is not entitled.


 


16.2       Identical
Counterparts.   This Agreement
may be executed in one or more counterparts, each of which shall for all
purposes be deemed to be an original but all of which together shall constitute
one and the same Agreement. Only one such counterpart signed by the party
against whom enforceability is sought needs to be produced to evidence the
existence of this Agreement.


 


16.3       Interpretation
of Agreement.   It is
understood that the parties hereto intend this Agreement to be interpreted and
enforced so as to provide indemnification to Indemnitee to the fullest extent
not now or hereafter prohibited by law.


 


16.4       Headings.   The headings of the Sections and paragraphs
of this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction thereof.


 


16.5       Modification
and Waiver.   No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by both of the parties to this Agreement. No waiver of any provision of
this Agreement shall be deemed to constitute a waiver of any of the provisions
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver. No waiver of any provision of this Agreement shall be effective unless
executed in writing.


 


16.6       Notices.   All notices and other communications given or
made pursuant to this Agreement shall be in writing and shall be deemed
effectively given:   (i) upon
personal


 


11

















 


delivery to the party to be notified, (ii) when sent by confirmed
facsimile if sent during normal business hours of the recipient, and if not so
confirmed, then on the next business day, (iii) five (5) days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (iv) one (1) business day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent:


 


(a)           To Indemnitee at the address
set forth below Indemnitee signature hereto:


 


(b)           To the Company at:


 


RealD Inc.


100 North Crescent Drive, Suite 120 


Beverly Hills, CA 90210 


Telephone: (310) 385-4000 


Facsimile: (310) 385-4001 


Attention: Chief Executive Officer


 


With a Copy to: General Counsel


 


or to such other address as may have been furnished to Indemnitee by
the Company or to the Company by Indemnitee, as the case may be.


 


16.7        Governing
Law. The parties agree that this
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware, as applied to contracts between Delaware
residents entered into and to be performed entirely within Delaware.


 


16.8        Consent to
Jurisdiction. The Company and Indemnitee
each hereby irrevocably consent to the jurisdiction of the courts of the State
of Delaware for all purposes in connection with any action or proceeding which
arises out of or relates to this agreement and agree that any action instituted
under this agreement shall be brought only in the state courts of the State of
Delaware.


 


16.9        Further
Assurance.  Each party agrees to
cooperate fully with the other parties, to take such actions, to execute such
further instruments, documents and agreements, and to give such further written
assurances, as may be reasonably requested by any other party to evidence and
reflect the transactions described herein and contemplated thereby, and to
carry into effect the intents and purposes of this Agreement.


 


16.10     Specific
Performance.  Each of the parties
acknowledges and agrees that the other would be damaged irreparably in the
event any of the provisions of this Agreement are not performed in accordance
with their specific terms or otherwise are breached. Accordingly, each party
agrees that the other party will be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof.


 


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IN WITNESS WHEREOF, the parties hereto have executed
this Indemnification Agreement on the day and year first above written.


 


	
   

  	
  REALD INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joshua Greer

  
	
   

  	
  Name:

  	
  Joshua
  Greer

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INDEMNITEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Lewis 

  
	
   

  	
  Name:

  	
  Michael
  Lewis 

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:

  
	
   

  	
   

  	
  Facsimile:

  



 


 


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