Exhibit 4.2


 


AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT


 


THIS
AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT (this “Agreement”)  is made as of
the 24th day of December 2007, by and among REAL D, a California
corporation (the “Company”), each of the investors listed
on Exhibit A hereto (each an “Investor”
and collectively the “Investors”),  and Michael V. Lewis and
Joshua Greer (each a “Founder”,
and collectively the “Founders”,
and collectively with the Investors, the “Shareholders”).


 


RECITALS


 


WHEREAS, the Company and certain of the Investors (the “Series D
Holders”)  have entered into a Series D
Preferred Stock Purchase Agreement dated as of December 24, 2007 (the “Series D
Agreement”)  pursuant to which the
Company will issue and sell shares of the Series D Preferred Stock of the
Company to certain of such Investors (the “Series D Preferred Stock”,
and together with the Company’s Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock, the “Preferred Stock”);


 


WHEREAS, the other Investors (the “Prior Investors”)  are holders of
outstanding shares of the Company’s Preferred Stock, and such parties have also
been granted certain registration, information and other rights pursuant to an
Investors’ Rights Agreement dated March 7, 2007 by and among the Company,
the Founders and the Prior Investors (the “Prior Agreement”);  and


 


WHEREAS, to induce the Series D Holders to purchase the
shares of Series D Preferred Stock from the Company, and as a condition to
the Series D Holders’ acquisition of the Company’s capital stock, the
Company, the Founders and the Prior Investors now desire to enter into this
Agreement in order to amend, restate and replace their rights and obligations
under the Prior Agreement with the rights and obligations set forth in this
Agreement. Section 3.7
of the Prior Agreement provides that the Prior Agreement may be amended
by the written consent of the Company, the Founders and the Shareholders (other
than the Founders) holding a majority of the then-outstanding Registrable
Securities (other than the Founders’ shares).


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the mutual premises and
covenants set forth herein, the Company, the Investors and the Founders hereby
agree as follows:


 


1.             Registration
Rights. The Company covenants and agrees as follows:


 


1.1          Definitions. For purposes
of this Agreement:


 


(a)          The term “1934 Act”
means the Securities Exchange Act of 1934, as amended.


 


(b)         The term “Act”
means the Securities Act of 1933, as amended.


 

















 


(c)           The term “Affiliate”  means a Person that (a) directly, or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with a specified Person, or (b) is an officer,
director, general partner, trustee or manager of such Person, or of a Person
described in clause (a) of this sentence. A Person shall be “controlled
by”  another
Person if the other possesses, directly or indirectly, power either (1) to
vote 50% or more of the securities having ordinary voting power for the
election of directors of such Person, or (2) to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise.


 


(d)           The term “Charter”  means the Company’s Third Amended and
Restated Articles of Incorporation, as amended from time to time.


 


(e)           The term “Founders’
Shares”  means
the shares of Common Stock previously issued to the Founders.


 


(f)            The term “Form S-3”  means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently adopted
by the SEC which permits inclusion or incorporation of substantial information
by reference to other documents filed by the Company with the SEC, or any
successor form thereto.


 


(g)           The term “Holder”  means any person owning Registrable
Securities or any assignee thereof in accordance with Section 1.13  hereof.


 


(h)           The term “Person”  means an individual, a partnership, a
corporation, a limited liability company, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization, or other
entity, or a governmental entity (or any department, agency or political
subdivision thereof).


 


(i)            The term “register,”  “registered”  and “registration”  refer to a registration effected by
preparing and filing a registration statement or similar document in compliance
with the Act, and the declaration or ordering of effectiveness of such
registration statement or document.


 


(j)            The term “Registrable
Securities”  means
(i) the Common Stock issuable or issued upon conversion of all of the
shares of the Series A Preferred Stock of the Company, the Series B
Preferred Stock, the Series C Preferred Stock and the Series D
Preferred Stock of the Company, now owned or hereinafter acquired by each
Investor and held by it or any successor or permitted assignee, (ii) the
Founders’ Shares and (iii) any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of the shares referenced in (i) or (ii) above,
excluding in all cases, however, any Registrable Securities that have been sold
by a Person in a transaction in which his or her rights under this Section 1  are not assigned or that have been sold
by a Person pursuant to a registration statement under the Act covering such
Registrable Securities that has been declared effective by the SEC or in an
open market transaction under Rule 144 of the Act.


 


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(k)           The term “Registrable
Series C Securities”
means shares of Common Stock issuable or issued upon conversion of
shares of Series C Preferred Stock (or any securities issued as a dividend
or other distribution with respect thereto, or in exchange or replacement
therefor).


 


(l)             The term “Registrable Series D Securities”
means shares of Common Stock issuable or issued upon conversion of
shares of Series D Preferred Stock (or any securities issued as a dividend
or other distribution with respect thereto, or in exchange or replacement
therefor).


 


(m)          The number of
shares of “Registrable Securities then outstanding”  shall be determined by the number of
shares of Common Stock outstanding which are, and the number of shares of
Common Stock issuable pursuant to then exercisable or convertible securities
which are, Registrable Securities.


 


(n)           The term “SEC”  means the Securities and Exchange
Commission.


 


(o)           The term “Shamrock”  means Shamrock Capital Growth Fund II,
L.P., and its Affiliates, successors and permitted assigns.


 


1.2          Request for
Registration.


 


(a)           If the Company
shall receive at any time after the six (6) month anniversary of the
effective date of the first registration statement for a public offering of
securities of the Company (other than a registration statement relating either
to the sale of securities to employees of the Company pursuant to a stock
option, stock purchase or similar plan or to an SEC Rule 145 transaction),
a written request from Shamrock (together with other Holders, if any, as
determined by Shamrock) that the Company file a registration statement under
the Act covering the registration of Registrable Securities having an
anticipated aggregate offering price, net of underwriting discounts and
commissions, in excess of $20,000,000, then the Company shall:


 


(i)            within ten (10) days
of the receipt thereof, give written notice of such request to all Holders; and


 


(ii)           as soon as practicable, use
reasonable best efforts to effect the registration under the Act of all
Registrable Securities which the Holders request to be registered, together
with all or such portion of the Registrable Securities of any Holder or Holders
joining in such request as are specified in a written request received by the
Company, within twenty (20) days of the mailing of such notice by the Company
in accordance with Section 3.5,  subject to the limitations of Section 1.2(b).


 


(b)           If the Holders
initiating the registration request under Section 1.2(a) (“Initiating
Holders”)  intend
to distribute the Registrable Securities covered by their request by means of
an underwriting, they shall so advise the Company as a part of their request
made pursuant to Section 1.2(a),
and the Company shall include such information in the written


 


3

















 


notice
referred to in Section 1.2(a).
The underwriter will be selected by the Company and shall be reasonably
acceptable to Shamrock. In such event, the right of any Holder to include his,
her or its Registrable Securities in such registration shall be conditioned
upon such Holder’s participation in such underwriting and the inclusion of such
Holder’s Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and such Holder) to
the extent provided herein. All Holders proposing to distribute their
securities through such underwriting shall (together with the Company as
provided in Section 1.4(e))
enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting. Notwithstanding any
other provision of this Section 1.2,  if the
underwriter advises the Company in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Company shall
so advise all Holders of Registrable Securities which would otherwise be
underwritten pursuant hereto, and the number of shares of Registrable
Securities that may be included in the underwriting shall be allocated, first,
among all Holders of Registrable Series C Securities and Registrable Series D
Securities in proportion (as nearly as practicable) to the relative amount of
such shares held by each such Holder, and, thereafter, among all other Holders
in proportion (as nearly as practicable) to the relative amount of Registrable
Securities of the Company requested to be registered by each such Holder; provided, however,
that the number of shares of Registrable Series C Securities and
Registrable Series D Securities to be included in such underwriting shall
not be reduced unless all other securities (including Founders’ Shares) are
first entirely excluded from the underwriting. To facilitate the allocation of
shares in accordance with the above provisions, the Company or the underwriters
may round the number of shares allocated to a Holder to the nearest 100 shares.


 


(c)           Notwithstanding
the foregoing, if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 1.2,  a certificate
signed by the Chief Executive Officer of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than 90 days after receipt
of the request of the Initiating Holders; provided, however,
that the Company may not utilize this right more than once in any twelve-month
period.


 


(d)           In addition, the Company
shall not be obligated to effect, or to take any action to effect, any
registration pursuant to this Section 1.2:


 


(i)            After the
Company has effected two (2) registrations requested by Shamrock pursuant
to Section 1.2(a) and such
registrations have been declared or ordered effective; provided, that if
any such request pursuant to this Section 1.2
is subsequently withdrawn in writing by Shamrock, it shall not be
counted against the limitation of requests set forth in this Section 1.2(d)(i);


 


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(ii)           If at the time
of the request to register Registrable Securities the Company gives notice
within 20 days of such request that it intends within ninety (90) days to file
a registration subject to Section 1.3
hereof; or


 


(iii)          During the
period commencing with the date of filing of, and ending on a date one hundred
eighty (180) days after the effective date of, a registration subject to Section 1.3  hereof;
provided, that the Company is actively employing in good faith reasonable best
efforts to cause such registration statement to become effective.


 


1.3          Company
Registration. If  (but without any obligation
to do so) the Company proposes to register (including for this purpose a
registration effected by the Company for shareholders other than the Holders)
any of its stock or other securities under the Act in connection with the
public offering of such securities solely for cash (other than a registration
relating solely to the sale of securities to participants in a Company stock
plan or a registration with respect to any corporate reorganization or other
transaction under Rule 145 of the Securities Act or a registration on any
form that does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registrable Securities or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt securities which
are also being registered), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after mailing of such notice by the
Company in accordance with Section 3.5,  the Company
shall, subject to the provisions of Section 1.8,  use its
reasonable best efforts to cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested to be registered.


 


1.4          Obligations
of the Company. Whenever required under this Section 1  to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:


 


(a)           Prepare and
file with the SEC a registration statement with respect to such Registrable
Securities and use its reasonable best efforts to cause such registration
statement to become effective, and, upon the request of the Holders (other than
Founders) holding a majority of the Registrable Securities (other than Founders’
Shares) and registered thereunder, keep such registration statement effective
for up to 180 days or, if earlier, until the Holder or Holders have completed
the distribution related thereto. Notwithstanding any other provision of this
Agreement, the Company may delay the filing or effectiveness of any
registration statement for a period of up to 30 days after the date of a
request for registration pursuant to Section 2 (a) if at the time of
such request the Board of the Company reasonably determines that such
registration and offering would interfere with any material transaction
involving the Company; provided, however, that the Company shall only be
entitled to invoke such right two (2) times during the duration of this
Agreement (and no more than one time during any twelve (12) month period);


 


(b)           Prepare and
file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration
statement as may be necessary to comply with the provisions of the Act with
respect to the


 


5

















 


disposition
of all securities covered by such registration statement for the period set
forth in Section 1.4(a) above;


 


(c)           Furnish to each
Holder such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Act, and such other
documents as it may reasonably request from time to time in order to facilitate
the disposition of Registrable Securities owned by it;


 


(d)           Register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders; provided, that the Company shall not
be required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions, unless the Company is already required to qualify to do
business or subject to service in such jurisdiction and except as may be
required by the Act;


 


(e)           In the event of
any underwritten public offering, enter into and perform its obligations under
an underwriting agreement, in usual and customary form, with the managing underwriter
of such offering. Each Holder participating in such underwriting shall also
enter into and perform its obligations under such an agreement;


 


(f)            Notify each
Holder of Registrable Securities covered by such registration statement at any
time when a prospectus relating thereto is required to be delivered under the
Act of the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing;


 


(g)           Cause all such
Registrable Securities registered pursuant hereunder to be listed on each
securities exchange on which similar securities issued by the Company are then
listed (if any);


 


(h)           Provide a
transfer agent and registrar for all Registrable Securities registered pursuant
hereunder and a CUSIP number for all such Registrable Securities, in each case
not later than the effective date of such registration;


 


(i)            Use its
reasonable best efforts to furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Section 1,  on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Section 1,
if such securities are being sold through underwriters, (i) an
opinion, dated as of such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
and (ii) a letter dated as of such date, from the independent certified
public accountants of the Company, in form and substance as is customarily
given by independent certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriters; and


 


6














 


(j)            The Company
will cause members of its senior management (including the President and/or
Chief Executive Officer and Chief Financial Officer) to participate on a
reasonable basis in presentations concerning the Company and its securities in
connection with the Company’s efforts to market the Registrable Securities
pursuant to Section 1.2
hereof, including, without limitation, participation in meetings with
potential investors and preparation of all materials for such investors.


 


1.5          Furnish
Information. It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Section 1  with respect to
Registrable Securities of any selling Holder  that such Holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such
securities as shall be required to effect the registration of such Holder’s
Registrable Securities.


 


1.6          Expenses of
Demand Registration. All expenses (other than underwriting
discounts and commissions applicable to shares registered by the selling
Holders, which shall be borne pro rata by all selling Holders) in connection
with registrations, filings or qualifications of Registrable Securities
pursuant to Section 1.2,  including
(without limitation) all registration, filing and qualification fees, printers’
and accounting fees, and the fees and disbursements of one counsel for the
selling Holders selected by Shamrock (which fees and disbursements to counsel
shall not exceed $50,000) shall be borne by the Company; provided, however, that the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 1.2
if the registration request is subsequently withdrawn at the request of
Shamrock (in which case all participating Holders shall bear such expenses pro
rata by such Holders (based on the number of shares requested to be registered
by them), unless Shamrock agrees to forfeit their right to one demand
registration pursuant to Section 1.2(a);  provided, however, that if at the
time of such withdrawal, Shamrock shall have learned of a material adverse
change in the condition or business of the Company from that known to Shamrock
at this time or the time of their request and have withdrawn the request
promptly following discovery or disclosure of such material adverse change (a “Permitted
Withdrawal”),  then the Holders shall not
be required to pay any such expenses and shall not be required to forfeit any
such demand registration right.


 


1.7          Expenses of
Company Registration. All expenses (other than underwriting
discounts and commissions applicable to shares registered by the selling
Holders, which shall be borne pro rata by all selling Holders) incurred in
connection with any registration, filing or qualification of Registrable
Securities pursuant to Section 1.3,
including (without limitation) all registration, filing and
qualification fees, printers and accounting fees and the fees and disbursements
of one counsel for the selling Holders selected by Shamrock (which fees and
disbursements to counsel shall not exceed $50,000) shall be borne by the
Company.


 


1.8          Underwriting
Requirements. In connection with any offering involving an
underwriting of shares of the Company’s capital stock, the Company shall not be
required under Section 1.3
to include any of the Holders’ securities in such underwriting unless
they accept the terms of the underwriting as agreed upon between the Company
and the underwriters


 


7

















 


selected
by it. If any Holder disapproves of the terms of any such underwriting, such
Holder may elect to withdraw therefrom by written notice to the Company and the
underwriter, delivered at least fifteen (15) business days prior to the effective
date of the registration statement. If the total amount of securities,
including Registrable Securities, requested by shareholders to be included in
such offering exceeds the amount of securities sold other than by the Company
that the underwriters determine in their sole discretion is compatible with the
success of the offering, then the number of shares to be included in the
underwriting shall be allocated, first, to the Company; second, among all
Holders of Registrable Series C Securities and Registrable Series D
Securities in proportion (as nearly as practicable) to the relative amount of
such shares held by each such Holder; third, among the other Holders in
proportion (as nearly as practicable) to the relative amount of Registrable
Securities of the Company requested to be registered by each such Holder; and
fourth, to any other holder of registrable securities. To facilitate the
allocation of shares in accordance with the above provisions, the Company or
the underwriters may round the number of shares allocated to a Holder to the
nearest 100 shares.


 


1.9          Delay of
Registration. No Holder shall have any right to obtain or seek an injunction restraining or
otherwise delaying any such registration as the result of any controversy that
might arise with respect to the interpretation or implementation of this Section 1.


 


1.10        Indemnification.
In the event any Registrable Securities are included in a registration
statement under this Section 1.


 


(a)           To the extent
permitted by law, the Company will indemnify and hold harmless each Holder, its
partners, officers, directors and shareholders of each Holder, any underwriter
(as defined in the Act) for such Holder and each person, if any, who controls
such Holder or underwriter within the meaning of the Act or the 1934 Act
(collectively, the “Indemnified  Persons”),  against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Act or the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively, a “Violation”):  (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein, not misleading, or
(iii) any violation or alleged violation by the Company of the Act, the
1934 Act, any state securities laws, or any rule or regulation promulgated
under the Act, the 1934 Act or any state securities laws, and the Company will
pay to each such Indemnified Person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this Section 1.10(a) shall not apply to (1) amounts
paid in settlement of any such loss, claim, damage, liability, or action, if
such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld, delayed or conditioned), (2) any such
loss, claim, damage, liability, or action to the extent that it arises out of
or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished by such Person under an instrument duly
executed by such Person


 


8

















 


expressly
for use in connection with such registration, or (3) any such loss, claim,
damage, liability, or action to the extent that it arises out of or is based
upon the use or delivery by such Holder, underwriter or controlling person of a
prospectus as of the time of such use or delivery, other than the most current
prospectus delivered to such Holder, underwriter or controlling person by the Company.


 


(b)           To the extent
permitted by law, each selling Holder will, if Registrable Securities held by
such Holder are included in the applicable registration, indemnify and hold
harmless the Company, each of its directors, each of its officers who has signed
the registration statement, each person, if any, who controls the Company
within the meaning of the Act, any underwriter, any other shareholder of the Company that is selling securities in such registration and any
controlling person of any such underwriter or such other shareholder, against
any losses, claims, damages, or liabilities joint or several) to which any of
the foregoing persons may become subject, under the Act, the 1934 Act or any
state securities laws, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon (i) any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder under an instrument duly executed by such Holder
expressly for use in connection with such registration, (ii) the use or
delivery by such Holder of a prospectus as of the time of such use or delivery,
other than the most current prospectus delivered to such Holder by the Company,
and each such Holder will pay any legal or other expenses reasonably incurred
by any such person intended to be indemnified pursuant to this Section 1.10(b),
in connection with investigating or defending any such loss, claim,
damage, liability, or action if it is judicially determined that there was such
violation; provided, however, that the indemnity agreement contained in this Section 1.10(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld, delayed or conditioned; provided, that, in no
event shall any indemnity under this Section 1.10(b) exceed the net proceeds received by
such Holder from the offering (i.e., net of payment of all expenses incurred by
such Holder, as well as underwriting discounts and commissions paid by such
Holder), except in the case of fraud or intentional misrepresentation by such
Holder.


 


(c)           Promptly after
receipt by an indemnified party under this Section 1.10  of notice of the commencement of any
action (including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under
this Section 1.10,
deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually and reasonably satisfactory to the indemnifying
parties; provided, however, that an
indemnified party (together with all other indemnified parties which may be
represented without conflict by one counsel) shall have the right to retain one
separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The


 


9

















 


failure
to deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.10
to the extent of such prejudice, but the omission to so deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 1.10.


 


(d)           If the
indemnification provided for in this Section 1.10
is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage, or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or omissions that resulted
in such loss, liability, claim, damage, or expense, as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
and of the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties’ relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement or omission; provided, that in no
event shall any contribution by a Holder hereunder (when combined with any
indemnification otherwise provided by such Holder under this Section 1.10)  exceed the net proceeds
received by such Holder from the offering (i.e., net of payment of all expenses
incurred by such Holder, as well as underwriting discounts and commissions paid
by such Holder), except in the case of fraud or intentional misrepresentation
by such Holder.


 


(e)           Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with the underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall control. No
indemnifying party, in the defense of any such claim or litigation, shall,
except with the consent of each indemnified party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation.


 


(f)            The obligations of the
Company and Holders under this Section 1.10
shall survive the completion of any offering of Registrable Securities
in a registration statement under this Section 1,  and otherwise.


 


1.11        Reports
Under Securities Exchange Act of 1934. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees
to:


 


(a)           make and keep
public information available, as those terms are understood and defined in SEC Rule 144,
at all times beginning ninety (90) days after the


 


10

















 


effective
date of the first registration statement filed by the Company for the offering
of its securities to the general public;


 


(b)           take such
action, including the voluntary registration of its Common Stock under Section 12
of the 1934 Act, as is necessary to enable the Holders to utilize Form S-3
for the sale of their Registrable Securities, such action to be taken as soon
as practicable after the end of the fiscal year in which the first registration
statement filed by the Company for the offering of its securities to the
general public is declared effective;


 


(c)           file with the
SEC in a timely manner all reports and other documents required of the Company
under the Act and the 1934 Act; and


 


(d)           furnish to any
Holder, so long as the Holder owns any Registrable Securities, forthwith upon
request (i) a written statement by the Company that it has complied with
the reporting requirements of SEC Rule 144 (at any time after ninety (90)
days after the effective date of the first registration statement filed by the
Company), the Act and the 1934 Act (at any time after it has become subject to
such reporting requirements), or that it qualifies as a registrant whose
securities may be resold pursuant to Form S-3 (at any time after it so
qualifies), (ii) a copy of the most recent or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii) such
other information as may be reasonably requested in availing any Holder of any rule or
regulation of the SEC which permits the selling of any such securities without
registration.


 


1.12        Form S-3
Registration. In case the Company shall receive from any Holder
or Holders (other than a Founder) a written request or requests that the
Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holders, the Company, will:


 


(a)           promptly give
written notice of the proposed registration, and any related qualification or
compliance, to all other Holders; and


 


(b)           as soon as
practicable, effect such registration and all such qualifications and
compliances as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Holder’s or Holders’
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within 15
days after receipt of such written notice from the Company; provided, however,
that the Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this Section 1.12:  (1) if Form S-3
is not available for such offering by the Holders; (2) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public (net of any
underwriters’ discounts or commissions) of less than $2,000,000; (3) if
the Company shall furnish to the Holders a certificate signed by the Chief
Executive Officer of the Company stating that, in the good faith judgment of
the Board of Directors of the Company, it would be seriously detrimental to the
Company and its shareholders for such Form S-3 Registration to be effected
at such time, in which event the Company shall


 


11

















 


have
the right to defer the filing of the Form S-3 registration statement for a
period of not more than 90 days after receipt of the request of the Holder or
Holders under this Section 1.12;  provided,
however, that the Company shall not utilize this right more than once in any
twelve (12) month period; (4) if the Company has, within the twelve (12)
month period preceding the date of such request, already effected two
registrations on Form S-3 for the Holders pursuant to this Section 1.12;
or (5) in any particular jurisdiction in which the Company would
be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.


 


(c)           Subject to the
foregoing, the Company shall file a registration statement covering the
Registrable Securities and other securities so requested to be registered as
soon as practicable after receipt of the request or requests of the Holders.
All expenses (other than underwriting discounts and commissions, if any,
applicable to shares sold by the selling Holders, which shall be borne pro rata
by all selling Holders) incurred in connection with registrations, filings or
qualifications of Registrable Securities pursuant to this Section 1.12,
including (without limitation), all registration, filing and
qualification fees, printer’s and accounting fees, and the reasonable fees and
disbursements of one counsel for the selling Holders selected by Shamrock (if
Shamrock is a selling Holder) or by such Holders (if Shamrock is not a selling
Holder) (which fees and disbursements to counsel shall not exceed $50,000)
shall be borne by the Company. Registrations effected pursuant to this Section 1.12
shall not be counted as demands for registration or registrations effected
pursuant to Section 1.2
or Section 1.3,  respectively.


 


1.13        Assignment
of Registration Rights. The rights to cause the Company to register
Registrable Securities pursuant to this Section 1
may be assigned (but only with all related obligations) by a Holder to
a transferee or assignee of such securities who (together with any Affiliates)
after such assignment or transfer, holds at least five hundred thousand
(500,000) shares of Registrable Securities (subject to appropriate adjustment
for future stock splits, stock dividends, combinations, recapitalizations, and
similar events); provided that (a) the Company is, within a
reasonable time after such transfer (in any event within 30 days after such
transfer), furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee or assignee
agrees in writing to be bound by and subject to the terms and conditions of
this Agreement, including without limitation the provisions of Section 1.15  below; and (c) such
assignment shall be effective only if, immediately following such transfer, the
further disposition of such securities by the transferee or assignee is
restricted under the Act.


 


1.14        Limitations
on Subsequent Registration Rights. From and after the date of
this Agreement, the Company shall not, without the prior written consent of
Shamrock, enter into any agreement with any holder or prospective holder of any
securities of the Company which would allow such holder or prospective holder
to (a) include such securities in any registration filed under Section 1.2,
Section 1.3  or Section 1.12  hereof, unless
under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of his securities will not reduce the amount of the Registrable
Securities of the Holders which is included, or (b) make a demand
registration.


 


12














 


1.15                        “Market Stand-Off Agreement.”
Each Holder hereby agrees
that, during the period of duration specified by the underwriter of Common
Stock or other securities of the Company following the effective date of a
registration statement of the Company filed under the Act relating to a public
offering of the Company’s Common Stock, it shall not, to the extent requested
in writing by the Company and such underwriter, directly or indirectly sell,
offer to sell, contract to sell (including, without limitation, any short
sale), grant any option to purchase or otherwise transfer or dispose of (other
than to donees who agree to be similarly bound) any securities of the Company
held by it at any time during such period, except Common Stock included in such
registration; provided, however, that such market stand-off time period shall
not exceed 180 days in connection with the initial public offering and shall
not exceed 90 days in connection with any other such public offering. The
obligations described in this Section 1.15  shall
apply only if all officers, directors and holders of not less than one percent
(1%) of the fully-diluted capital stock of the Company enter into similar
agreements. Furthermore, if the restrictions under this Section 1.15  is
waived with respect to any party, then it is waived with respect to all parties


 


In
order to enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Registrable Securities of each Holder (and the
shares or securities of every other person subject to the foregoing
restriction) until the end of such period.


 


Notwithstanding
the foregoing, the obligations described in this Section 1.15  shall not
apply to a registration relating solely to employee benefit plans on Form S-1
or Form S-8 or similar forms which may be promulgated in the future, or a
registration relating solely to a Commission Rule 145 transaction on Form S-4
or similar forms which may be promulgated in the future.


 


1.16                        Termination of Registration
Rights.


 


(a)                                  No Holder shall be entitled to exercise any
right provided for in this Section 1  after
5 years following the consummation of the sale of securities pursuant to a
registration statement filed by the Company under the Act in connection with
the initial firm commitment underwritten offering of its Common Stock to the
general public.


 


(b)                                 In addition, the right of any Holder to
request inclusion in any registration pursuant to this Agreement shall
terminate on (i) the closing of the first sale of securities of the
Company pursuant to a registration statement filed by the Company under the Act
if all shares of Registrable Securities held or entitled to be held upon
conversion by such Holder may then immediately be sold under Rule 144
during any 90-day period, or (ii) on such date after the closing of such
first sale of securities as all shares of Registrable Securities held or
entitled to be held upon conversion by such Holder may then immediately be sold
under Rule 144 during any 90-day period, if, in either case, the Company
is then subject to the provisions of the 1934 Act, and the Company’s Common
Stock is listed on a national exchange or Nasdaq.


 


2.                                      Covenants of the Company.


 


13

















 


 


2.1                               Delivery of
Financial Statements. The Company shall deliver to each (a) Holder
(other than a Founder) who (together with any Affiliates) then holds at least
1,500,000 shares of Registrable Securities (subject to appropriate adjustment
for future stock splits, stock dividends, combinations, recapitalizations, and
similar events) (each, a “Significant Investor”):


 


(a)                                  as soon as
practicable, but in any event within 120 days after the end of each fiscal year
of the Company beginning with the fiscal year ending March 31, 2007, an
income statement for such fiscal year, a balance sheet of the Company and
statements of shareholder’s equity and cash flows, for and as of the end of
such year, including a comparison to the budget and prior year performance, and
a schedule as to the sources and applications of funds for such year, such
year-end financial reports to be in reasonable detail, prepared in accordance
with generally accepted accounting principles (“GAAP”), and
audited and certified by independent public accountants of nationally
recognized standing selected by the Company;


 


(b)                                 as soon as
practicable, but in any event within 45 days after the end of each fiscal
quarter beginning with the fiscal quarter ending June 30, 2007, an
unaudited income statement, an unaudited statements of shareholder’s equity and
cash flows, and an unaudited balance sheet for and as of the end of such
quarter, including a comparison to the budget and prior year performance for
the same periods and for the year to date period, prepared in accordance with
generally accepted accounting principles consistently applied, with the
exception that no notes need be attached to such statements and year-end audit
adjustments may not have been made, and attaching thereto a certificate of the
Chief Financial Officer of the Company as to the foregoing.


 


(c)                                  as soon as
practicable, but in any event thirty (30) days prior to the end of each fiscal
year, a budget for the next fiscal year, including balance sheets and sources
and applications of funds statements, revenue projections, profit and loss
projections, cash flow projections, and capital expenditures, all on a
quarterly basis, and, as soon as prepared, any other budgets or revised budgets
prepared by the Company.


 


In addition, the Company will allow each Significant Investor to visit
and inspect any of the properties of the Company and its subsidiaries (upon
reasonable advance notice) and will deliver or provide to each Significant
Investor, with reasonable promptness, any information and data, including
access to books, records, officers and accountants, with respect to the Company
and its subsidiaries as such Significant Investors may from time to time
reasonably request; provided, however, that the Company shall not be obligated
to provide any information that it considers in good faith to be a trade secret
or to contain confidential or classified information unless such Significant
Investor enters into a confidentiality agreement with the Company.


 


2.2                               Termination
of Covenants. The covenants set forth in Section 2.1(a)  and Section 2.1(b) and in Section 2.4
through Section 2.6  shall terminate and be of no further
force or effect when the sale of securities pursuant to a registration
statement filed by the Company under the Act in connection with the initial
firm commitment underwritten offering of its securities to the general public
is consummated, or when the Company first becomes subject to the periodic
reporting requirements of Sections 12(g) or 15(d) of the 1934 Act,
whichever event shall first occur.


 


14

















 


2.3                               Reservation of Stock. The Company will at all times reserve and
keep available, solely for issuance and delivery upon the conversion of the
Preferred Stock, all Common Stock issuable from time to time upon such
conversion.


 


2.4                               Stock Vesting. Unless otherwise approved by the Company’s
Board of Directors (including the Series C Director, as such term is
defined in the Charter), all stock, stock options and other stock equivalents
issued after the date of this Agreement to employees, directors and consultants
and other service providers shall be subject to vesting as follows: (a) twenty-five
percent (25%) of such stock shall vest at the end of the first year following
the date of issuance, and (b) seventy-five percent (75%) of such stock
shall vest monthly over the remaining three (3) years. With respect to any
shares of stock purchased by any such person, the Company’s repurchase option
shall provide that, upon such person’s termination of employment or service
with the Company, with or without cause, the Company or its assignee (to the
extent permissible under applicable securities laws and other laws) shall have
the option to purchase at cost any unvested shares of stock then held by such
person. The Company shall retain a “right of first refusal” on employee
transfers until the Company’s initial public offering and shall have the right
to repurchase unvested shares at cost upon termination of employment of a
holder of restricted stock. The Company will cause each person now or hereafter
employed by it or by any subsidiary (or engaged by the Company or any
subsidiary as a consultant/independent contractor) with access to confidential
information and/or trade secrets to enter into a nondisclosure and proprietary
rights assignment agreement.


 


2.5                               Director’s Liability and
Indemnification. The Charter
and Bylaws shall provide (a) for elimination of the liability of directors
to the maximum permitted by law, and (b) for indemnification of directors
for acts on behalf of the Company to the maximum extent permitted by law. The
Company will maintain its director and officer’s liability insurance for the
indemnification of all of the directors on the Board of Directors. At the
request of each Series C Director (as defined in the Charter), the Company
shall execute and deliver to such director an indemnity agreement in
substantially the form of Exhibit H
attached to the Series C Preferred Stock Purchase Agreement dated as of February 22,
2007.


 


2.6                               Committees. The Board of Directors of the Company shall
appoint a Compensation Committee to consist of directors, the majority of whom
are not officers or employees of the Company, to approve compensation packages
for key managers of the Company, including the President, and shall appoint an
Audit Committee, and one of the Series C Directors (as such term is
defined in the Charter) shall be permitted to be a member of each such
committees as well as each other committee of the Board of Directors of the
Company.


 


2.7                               Director Expenses. All reasonable expenses incurred by the
directors of the Company in attending or otherwise participating in Board of
Director and committee meetings and performing duties requested by the Company
will be reimbursed by the Company.


 


2.8                               Successor Indemnification. If the Company or any of its successors or assignees
(i) consolidates or merges into any other person and is not the continuing
or surviving corporation or entity of such consolidation or merger, or (ii) transfers
or conveys all or substantially all of its properties and assets to any person,
then, and in each such case, to the


 


15

















 


extent
necessary, proper provision shall be made so that the successors and assignees
of the Company assume the obligations of the Company with respect to
indemnification of members of the Board of Directors as in effect immediately
before such transaction, whether such obligations are contained in the
Company’s Bylaws, the Charter, or elsewhere, as the case may be.


 


2.9                               Monitoring Fee. The Company shall pay to Shamrock an annual monitoring
fee (“Annual
Monitoring Fee”) of
$350,000, payable semi-annually (and adjusted pro rata for any partial period)
in arrears, until the QIPO or a Deemed Liquidation (each as defined in the
Charter).


 


3.                                      Miscellaneous.


 


3.1                               Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement (including Section 1.10,  which
is intended to provide benefits to third parties and is intended to be
enforceable against the Company by such third parties).


 


3.2                               Governing Law; Jurisdiction;
Service of Process. This
Agreement is to be construed in accordance with and governed by the internal
laws of the State of California without giving effect to the principles of
conflicts of law of such state. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement may be
brought against any of the parties in the courts of the State of California,
County of Los Angeles, or, if it has or can acquire jurisdiction, in the United
States District Court for the Southern District of California, and each of the
parties consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceedings referred to in the
preceding sentence may be served on a party to this Agreement at the address
for notices for such party set forth on the signature pages hereto.


 


3.3                               Counterparts; Facsimile
Signatures. This Agreement
may be executed in two or more counterparts, and by facsimile signatures, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.


 


3.4                               Titles and Subtitles;
Interpretation. The titles
and subtitles used in this Agreement are used for convenience only and are not
to be considered in construing or interpreting this Agreement. The express
terms of this Agreement control and supersede any course of performance or
trade custom or usage inconsistent with any of its terms. Unless the express
context otherwise requires: (a) “or” is not exclusive; (b) words in
the singular include the plural, and words in the plural include the singular; (c) “herein,”
“hereof,” and other similar words refer to this Agreement as a whole and not to
any particular section, subsection, paragraph, clause, or other subdivision; (d) “including”
will be deemed to be followed by “, but


 


16

















 


not
limited to,”; (e) the masculine, feminine, and neuter genders will each be
deemed to include the others; and (f) “shall,” “will,” or “agrees” are
mandatory, and “may” is permissive.


 


3.5                               Notices. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given (a) upon personal delivery to the party to be
notified, (b) upon receipt after deposit with an overnight delivery
service, (c) upon receipt after deposit with the United States Post
Office, by certified mail, return receipt request, postage prepaid, or (d) on
the day of transmission by facsimile (fax) to such party (with confirmation of
delivery) during regular business hours, with transmission confirmed within
three (3) days by notice delivered in accordance with any of subparagraphs
(a), (b) or (c) above, in each case addressed to the party to be
notified at the address and/or facsimile number indicated for such party on Exhibit A attached hereto or at such other address
and/or facsimile number as such party may designate by ten (10) days’
advanced written notice to the other parties, and in each case with copies to
such other party or parties indicated for such party on Exhibit A attached hereto, in the same manner as
described in this Section 3.5  for
such party.


 


3.6                               Expenses. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys’ fees, costs and necessary
disbursements in addition to any other relief to which such party may be entitled.


 


3.7                               Termination, Amendments and
Waivers. Any term, condition
or provision of this Agreement may be amended, and the observance thereof may
be waived (either generally or in a particular instance, and either
retroactively or prospectively), only with the written consent of (a) the
Company, (b) the Founders, and (c) the Holders (other than Founders)
of a majority of the then-outstanding Registrable Securities (other than
Founders’ Shares) so long as such majority includes Shamrock; provided, that
any amendment that expressly treats any Shareholder in a materially adverse
manner that is different than any other similarly situated Shareholder will
require the separate approval of such Shareholder. The Company shall give
prompt notice of any amendment or termination hereof or waiver hereunder to any
party to this Agreement that did not consent in writing to such amendment,
termination or waiver. Any amendment, termination or waiver effected in
accordance with this Section 3.7 shall be binding
upon each holder of any Registrable Securities then outstanding, each future
holder of all such Registrable Securities, and the Company, regardless of
whether any such party has consented thereto. No waivers of or exceptions to
any term, condition or provision of this Agreement, in any one or more
instances, shall be deemed to be or construed as a further or continuing waiver
of any such term, condition or provision.


 


3.8                               Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement, and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.


 


3.9                               Aggregation of Stock. All shares of Preferred Stock held or
acquired by any Affiliates shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement; provided, that
all such Affiliated Persons shall have a single


 


17

















 


attorney-in-fact
for the purposes of exercising any rights, receiving notices or taking any
action under this Agreement.


 


3.10                        Entire Agreement. This Agreement (including the Exhibits
hereto, if any) and the documents referred to herein constitutes the full and
entire understanding and agreement among the parties with regard to the
subjects hereof and thereof, and supersedes in its entirety the Prior Agreement
and any other prior understandings, agreements or representations by or among the
parties hereto, written or oral, with regard to the subjects hereof and thereof.


 


3.11                        Further Assurances. 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 hereby, and to carry into effect
the intents and purposes of this Agreement.


 


3.12                             Specific Performance. The Company recognizes and agrees that a
Shareholder shall not have an adequate remedy if the Company fails to comply
with the provisions of this Agreement, and that damages will not be readily
ascertainable, and the Company expressly agrees that, in the event of such
failure, any Shareholder shall be entitled to seek specific performance of the
Company’s obligations under this Agreement hereof, and the Company will not
oppose an application seeking such specific performance based on there being an
adequate remedy at law.


 


3.13                             Rights Cumulative. Each and all of the various rights, powers
and remedies of the parties hereto will be considered to be cumulative with and
in addition to any other rights, powers and remedies which such parties may
have at law or in equity in the event of the breach of any of the terms of this
Agreement. The exercise or partial exercise of any right, power or remedy will
neither constitute the exclusive election thereof nor the waiver of any other
right, power or remedy available to such party.


 


3.14                             Spousal Consent. Each Investor or Founder, to the extent such
party is married, shall deliver to the Company a Consent of Spouse in the form
of Exhibit B attached hereto duly executed by such
Shareholder’s spouse.


 


[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]


 


18














 


IN WITNESS WHEREOF,  the undersigned parties hereto have executed
this Agreement as of the date first written above.


 


	
  THE
  COMPANY:

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Drew
  Skarupa

  	
   

  
	
   

  	
   

  
	
  Name:
  Drew Skarupa

  	
   

  
	
   

  	
   

  
	
  Title:
  Chief Financial Officer

  	
   

  
	
  Address:
  100 N. Crescent Drive, Suite 120

  Beverly Hills, CA 90210

  	
   

  
	
  Fax:
  (310) 385-4001

  	
   

  
	
  Phone:
  (310) 385-4000

  	
   

  
	
   

  	
   

  
	
  FOUNDERS:

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Michael Lewis

  	
   

  
	
   

  	
   

  
	
  Michael Lewis

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Joshua
  Greer

  	
   

  
	
   

  	
   

  
	
  Joshua Greer

  	
   

  



 


[Signature Page To Investor Rights Agreement]


 

















 


IN WITNESS
WHEREOF,  the
undersigned parties hereto have executed this Agreement as of the date first
written above.


 


	
  INVESTORS:

  	
   

  
	
   

  	
   

  
	
  PEQUOT SCOUT FUND, L.P.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  Pequot Capital Management, Inc.

  	
   

  
	
   

  	
  as Investment Manager

  	
   

  
	
   

  	
   

  
	
  /s/ Daniel Fishbane

  	
   

  
	
  Name:

  	
  Daniel Fishbane

  	
   

  
	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  PEQUOT MARINER MASTER FUND, L.P.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  Pequot Capital Management, Inc.

  	
   

  
	
   

  	
  as Investment Advisor

  	
   

  
	
   

  	
   

  
	
  /s/ Daniel Fishbane

  	
   

  
	
  Name:

  	
  Daniel Fishbane

  	
   

  
	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  PEQUOT NAVIGATOR OFFSHORE FUND, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  Pequot Capital Management, Inc.

  	
   

  
	
   

  	
  as Investment Advisor

  	
   

  
	
   

  	
   

  
	
  /s/ Daniel Fishbane

  	
   

  
	
  Name:

  	
  Daniel Fishbane

  	
   

  
	
  Title:

  	
  Treasurer

  	
   

  



 


[Signature Page To Investor Rights Agreement]


 

















 


PEQUOT
DIVERSIFIED MASTER FUND, LTD.


 


	
  By:

  	
  Pequot
  Capital Management, Inc.

  
	
   

  	
  as
  Investment Advisor

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Daniel Fishbane

  	
   

  
	
  Name:

  	
  Daniel Fishbane

  
	
  Title:

  	
  Treasurer

  
			



 


 


PEQUOT
ENDOWMENT FUND, L.P.


 


	
  By:

  	
  Pequot
  Capital Management, Inc.

  
	
   

  	
  as
  Investment Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Daniel Fishbane

  	
   

  
	
  Name:

  	
  Daniel Fishbane

  
	
  Title:

  	
  Treasurer

  
			



 


 


PEQUOT
CORE GLOBAL OFFSHORE FUND, INC.


 


	
  By:

  	
  Pequot
  Capital Management, Inc.

  
	
   

  	
  as
  Investment Advisor

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Daniel Fishbane

  	
   

  
	
  Name:

  	
  Daniel Fishbane

  
	
  Title:

  	
  Treasurer

  
			



 


 


PEQUOT
CORE INVESTORS FUND, INC.


 


	
  By:

  	
  Pequot
  Capital Management, Inc.

  
	
   

  	
  as
  Investment Advisor

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Daniel Fishbane

  	
   

  
	
  Name:

  	
  Daniel Fishbane

  
	
  Title:

  	
  Treasurer

  
			



 


[Signature Page To Investor Rights Agreement]


 

















 


PEQUOT
INSTITUTIONAL FUND, INC.


 


	
  By:

  	
  Pequot
  Capital Management, Inc.

  
	
   

  	
  as
  Investment Advisor

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Daniel Fishbane

  	
   

  
	
  Name:

  	
  Daniel Fishbane

  
	
  Title:

  	
  Treasurer

  
			



 


 


PEQUOT
DIVERSIFIED MASTER FUND, LTD.


 


	
  By:

  	
  Pequot
  Capital Management, Inc.

  
	
   

  	
  as
  Investment Advisor

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Daniel Fishbane

  	
   

  
	
  Name:

  	
  Daniel Fishbane

  
	
  Title:

  	
  Treasurer

  
			



 


[Signature
Page To Investor Rights Agreement]


 

















 


IN WITNESS WHEREOF,  the undersigned parties hereto have
executed this Agreement as of the date first written above.


 


	
  INVESTORS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [FOR ENTITY INVESTOR USE

  	
   

  	
  [FOR INDIVIDUAL INVESTOR USE

  
	
  FOLLOWING SIGNATURE BLOCK:]

  	
   

  	
  FOLLOWING SIGNATURE BLOCK:]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Entity
  Name:

  	
  Shamrock Capital Growth Fund II, L.P.

  	
   

  	
   

  
	
   

  	
  [Print Entity Name]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Stephen D. Royer

  	
   

  	
  By:

  	
  Michael Lewis

  
	
  [Sign Here]

  	
   

  	
  [Sign Here]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Stephen D. Royer

  	
   

  	
  Name:

  	
  /s/ Michael Lewis

  
	
  [Print Name]

  	
   

  	
  [Print Name]

  
	
   

  	
   

  	
   

  
	
  Title: 

  	
  Executive Vice President

  	
   

  	
   

  
	
  [Print Title]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  4444 Lakeside Dr.

  	
   

  	
  Address:

  	
   

  
	
       
  Burbank, CA 91505

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  E-mail Address:

  	
  sroyer@shamrock.com

  	
   

  	
  Email Address:

  	
   

  
											



 


[Signature Page To Investor Rights Agreement]


 














 


IN WITNESS
WHEREOF, the
undersigned parties hereto have executed this Agreement as of the date first
written above.


 


	
  INVESTORS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [FOR ENTITY INVESTOR USE

  	
   

  	
  [FOR INDIVIDUAL INVESTOR USE

  
	
  FOLLOWING SIGNATURE BLOCK:]

  	
   

  	
  FOLLOWING SIGNATURE BLOCK:]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Entity
  Name:

  	
  Real Big LLC

  	
   

  	
   

  
	
   

  	
  [Print Entity Name]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
  /s/ Joshua Greer

  
	
  [Sign Here]

  	
   

  	
  [Sign Here]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
  Michael Lewis

  
	
  [Print Name]

  	
   

  	
  [Print Name]

  
	
   

  	
   

  	
   

  
	
  Title: 

  	
  Member

  	
   

  	
   

  
	
  [Print Title]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Email Address:

  	
   

  	
   

  	
  Email Address:

  	
   

  
													



 


[Signature
Page To Investor Rights Agreement]


 

















 


IN WITNESS WHEREOF, the
undersigned parties hereto have executed this Agreement as of the date first
written above.


 


	
  INVESTORS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [FOR ENTITY INVESTOR USE

  	
   

  	
  [FOR INDIVIDUAL INVESTOR USE

  
	
  FOLLOWING SIGNATURE BLOCK:]

  	
   

  	
  FOLLOWING SIGNATURE BLOCK:]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Entity
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  [Print Entity Name]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
  /s/ W. D. Budinger

  
	
  [Sign Here]

  	
   

  	
  [Sign Here]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
  W. D. Budinger

  
	
  [Print Name]

  	
   

  	
  [Print Name]

  
	
   

  	
   

  	
   

  	
   

  
	
  Title: 

  	
   

  	
   

  	
   

  
	
  [Print Title]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
  Address:

  	
  1507 Grinnell St. 

  
	
   

  	
   

  	
  Key West, FL 33040

  
	
   

  	
   

  	
   

  
	
  Email Address:

  	
   

  	
   

  	
  Email Address:

  	
  willbud8@hotmail.com

  
														



 


[Signature
Page To Investor Rights Agreement]


 

















 


IN WITNESS WHEREOF, the
undersigned parties hereto have executed this Agreement as of the date first
written above.


 


	
  INVESTORS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [FOR ENTITY INVESTOR USE

  	
   

  	
  [FOR INDIVIDUAL INVESTOR USE

  
	
  FOLLOWING SIGNATURE BLOCK:]

  	
   

  	
  FOLLOWING SIGNATURE BLOCK:]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Entity
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  [Print Entity Name]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
  /s/ Richard Huston

  
	
  [Sign Here]

  	
   

  	
  [Sign Here]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
  Richard Huston

  
	
  [Print Name]

  	
   

  	
  [Print Name]

  
	
   

  	
   

  	
   

  
	
  Title: 

  	
   

  	
   

  	
   

  
	
  [Print Title]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
  Address:

  	
  17 Greville Place

  
	
   

  	
   

  	
  London, NWGJJE

  
	
   

  	
   

  	
   

  
	
  Email Address:

  	
   

  	
   

  	
  Email Address:

  	
  rhuston@blueyonder.co.uk

  
													



 


[Signature
Page To Investor Rights Agreement]


 

















 


IN WITNESS WHEREOF, the
undersigned parties hereto have executed this Agreement as of the date first
written above.


 


	
  INVESTORS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [FOR ENTITY INVESTOR USE

  	
   

  	
  [FOR INDIVIDUAL INVESTOR USE

  
	
  FOLLOWING SIGNATURE BLOCK:]

  	
   

  	
  FOLLOWING SIGNATURE BLOCK:]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Entity
  Name:

  	
  Susan Budinger
  Loncki Separate Property Trust

  	
   

  	
   

  
	
   

  	
  [Print Entity Name]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Susan Martin Budinger

  	
   

  	
  By:

  	
  /s/ Paul MacCaskill

  
	
  [Sign Here]

  	
   

  	
  [Sign Here]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Susan Martin Budinger

  	
   

  	
  Name:

  	
  Paul MacCaskill

  
	
  [Print Name]

  	
   

  	
  [Print Name]

  
	
   

  	
   

  	
   

  
	
  Title: 

  	
  Trustee

  	
   

  	
   

  
	
  [Print Title]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  5225 E. Paradise Canyon
  Rd.

  	
   

  	
  Address:

  	
  10900 Wilshire Blvd., Suite 6

  
	
  Paradise
  Valley, AZ 85253

  	
   

  	
  La,
  Ca 90024

  
	
   

  	
   

  	
   

  
	
  Email Address:

  	
  sbudinger@rodelfoundations.org

  	
   

  	
  Email Address:

  	
  [ILLEGIBLE]

  
													



 


[Signature
Page To Investor Rights Agreement]


 

















 


IN WITNESS WHEREOF, the
undersigned parties hereto have executed this Agreement as of the date first
written above.


 


	
  INVESTORS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [FOR ENTITY INVESTOR USE

  	
   

  	
  [FOR INDIVIDUAL INVESTOR USE

  
	
  FOLLOWING SIGNATURE BLOCK:]

  	
   

  	
  FOLLOWING SIGNATURE BLOCK:]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Entity
  Name:

  	
  Perspectives
  LLC

  	
   

  	
   

  
	
   

  	
  [Print Entity Name]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ David E. Richardson

  	
   

  	
  By:

  	
   

  
	
  [Sign Here]

  	
   

  	
  [Sign Here]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  David E. Richardson

  	
   

  	
  Name:

  	
   

  
	
  [Print Name]

  	
   

  	
  [Print Name]

  
	
   

  	
   

  	
   

  
	
  Title: 

  	
  Manager

  	
   

  	
   

  
	
  [Print Title]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  2905 Piedmont Rd. NE

  	
   

  	
  Address:

  	
   

  
	
  Atlanta, GA
  USA

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Email Address:

  	
  [ILLEGIBLE]

  	
   

  	
  Email Address:

  	
   

  
													



 


[Signature
Page To Investor Rights Agreement]


 














 


EXHIBIT A


 


SCHEDULE OF INVESTORS


 


Perspective
Investments, LLC 


2905
Piedmont Rd. N.E., Suite B 


Atlanta,
GA 30305


 


Richard
Huston 


17
Greville Place, 


London
NW6 5JE 

United Kingdom


 


William
D. Budinger 


504
Noah Lane,


Key
West, FL 33040


 


Hobbit
Investments, LLC 


1250
Red Butte Drive, 


Aspen,
Colorado 81611


 


The
Susan Budinger Loncki Separate Property Trust 


5225
East Paradise Canyon Road


Paradise
Valley, AZ 85253


 


Real
Big, LLC


19355
Highway 82 


Carbondale,
CO 81623


 


Attn:
Andrew Lane 

Paul Kagan


25849
Hatton Road 


Carmel,
California 93923


 


William
Charles Powers and Carolyn Clark Powers 


2012
The Strand


Manhattan
Beach, CA 90266


 


Paul
L. MacCaskill


10900
Wilshire Blvd, Suite 600, 


Los
Angeles, CA 90024


 


Shamrock
Capital Growth Fund II, L.P. 


4444
W. Lakeside Drive


Burbank,
CA 91505


 

















 


Pequot
Scout Fund, L.P.


Pequot
Mariner Master Fund, L.P. 


Pequot
Navigator Offshore Fund, Inc. 


Pequot
Diversified Master Fund, Ltd. 


Pequot
Endowment Fund, L.P.


Pequot
Core Global Offshore Fund, Inc.


Pequot
Core Investors Fund, Inc 


Pequot
Institutional Fund, Inc.


Pequot
Diversified Master Fund, Ltd.


 


c/o
Pequot Capital Management, Inc. 


Attn:
Amber Tencic


500
Nyala Farm Road


Westport
Ct 06680


Phone:
203-429-2251


Fax:
203-557-5551


 

















 


EXHIBIT B 


 


CONSENT OF SPOUSE


 


I acknowledge that I have read the foregoing Investor Rights Agreement
(the “Agreement”), by and among REAL D, a California corporation (the “Company”)
and the Investors identified on Exhibit A thereto, and that I know its
contents. I hereby appoint
                                       ,
my spouse, as my attorney-in-fact with respect to the exercise of any rights
under the Agreement and agree to be bound by the provisions of the Agreement
insofar as I may have any rights in the
Agreement or any shares of the Company under the community property laws of the
state of our residence or similar laws relating to marital property in effect
in the state of our residence as of the date of the signing of the Agreement or
thereafter. I further agree
that my spouse may join in any future amendment or modification of the Agreement without any
further signature, acknowledgment, agreement or consent on my part.


 


I am aware that by its provisions, I and my spouse agree to be bound by the share transfer, voting and other
restrictions set forth therein, and I agree that all such restrictions are
fully binding and conclusive on all ownership interest I now have or hereafter may acquire in the Company. I hereby agree that all such interests are subject to the provisions of
the Agreement and that I will take no
action at any time to hinder operation of, or violate, the Agreement.


 


I
further agree to perform any acts or execute any documents or instruments
necessary in the reasonable judgment of any party hereto to effectuate the
purposes or intent, or to complete the performance of the Agreement, and I will
take no action at any time to hinder operation of the Agreement. I represent
and acknowledge that I have been
advised to retain counsel in connection with this Agreement and either: (i) have
declined to consult with counsel, or (ii) have consulted independent
counsel with respect to the effects of this Agreement on my legal rights.
Having considered such legal advice or declined to consult with counsel, I freely, voluntarily and knowingly execute this Consent of Spouse which
may be attached to and made a part of the Agreement, and may be relied upon by
the Company and its Shareholders as an inducement to enter into the Agreement


 


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [Signature of Spouse]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [Printed Name of Spouse]