Exhibit 10.12


 


SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS


 


[Note that the provisions of this Separation Agreement that are in
brackets may or may not apply to the actual Separation Agreement that the
Executive is required to sign pursuant to section 3(d)(iii) of the
Employment Agreement as a condition to receiving severance and certain other
benefits in the event of a Qualifying Termination, depending on the
applicability of the bracketed language to the reasons for the Qualifying
Termination.]


 


This Separation Agreement and General Release of Claims
(the “Agreement”) is entered into by and between RealD Inc., a Delaware
corporation (the “Company”), and Michael V. Lewis (“Executive”)
(together “the Parties”).  This Agreement is effective only if it has
been executed by each of the Parties and the revocation period has
expired without revocation as set forth in Sections 5(c) and (d) below (the “Effective
Date”).


 


WHEREAS, Executive [was/is] an employee of the
Company and served as its Chief Executive Officer pursuant to an employment
agreement with the Company with an effective date of April 1, 2010 (the “Employment
Agreement”);


 


WHEREAS, the Company and Executive mutually
agree that (i) Executive’s employment with the Company [as the Company’s
Chief Executive Officer] was terminated [by the Company without Cause] [by
Executive for Good Reason] (a “Qualifying Termination”) on [DATE] (the “[Qualifying]Termination
Date”), and (ii) that Executive will release the Company and its
affiliates from any and all claims as of the [Effective Date] [Qualifying
Termination Date];


 


WHEREAS, [a Change in Control (as defined in the
Employment Agreement) occurred on [DATE];] and


 


WHEREAS, in accordance with the Employment
Agreement, a Qualifying Termination of Executive’s employment [as the Company’s
Chief Executive Officer] means that Executive is eligible to receive certain
separation benefits provided that, among other things, Executive timely
complies with the requirements of Section 3(d)(iii) of the Employment
Agreement.


 


NOW, THEREFORE, in consideration of the mutual promises
contained herein, the Parties agree as follows:


 


1.               Qualifying Termination of
Employment [as the Company’s Chief Executive Officer]. 
Executive and the Company acknowledge and agree that Executive’s
employment [as the Company’s Chief Executive Officer] with the Company
terminated as of the close of business on the [Qualifying]Termination Date
without regard to whether Executive signs this Agreement or agrees to the
following terms and conditions, and that such termination was treated as a
Qualifying Termination by the Company. 
As of the [Qualifying]Termination Date, it is mutually agreed that
Executive is no longer [the Chief Executive Office] [an employee] [or 


 


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director] of the Company
and no longer holds any positions or offices with the Company [except for his
membership on the Company’s Board of Directors].


 


2.               Separation Benefits. 
In consideration for Executive’s general release of all claims set forth
below and Executive’s other obligations under this Agreement and in
satisfaction of all of the Company’s obligations to Executive and further
provided that: (i) this Agreement is signed by Executive and delivered to the
Company on or before [DATE], (ii) this Agreement is not revoked by Executive
under Section 5 below and therefore becomes effective on or before [DATE], (iii)
Executive remains in continuing material compliance with all of the terms of
this Agreement, and (iv) the termination of Executive’s employment with the
Company [as the Company’s Chief Executive Officer] is treated as a Qualifying
Termination by the Company, then the Company agrees to provide (and continue to
provide) the separation benefits specified in Section 3(a) below to Executive.


 


In the event that
the Company believes you are not in continuing material compliance with the
terms of this Agreement, then the Company shall provide you with written notice of the same and the
Company’s intention to terminate the separation benefits specified in Section 3(a) below
within ninety (90) days of the date on which the general counsel of the Company
or a member of the Board (other than you) first becomes aware of the initial
existence of the condition(s) giving rise to such lack of material
compliance.  If the Company does not
timely provide such notice during the applicable 90 days, then the Company will
be deemed to have waived the right to assert any such breach with respect to
such condition(s) provided that at least one of such persons with knowledge of
the initial existence of the condition(s) remains in service with the
Company through the conclusion of the ninety day notice period.  Notwithstanding the foregoing, in the event that the actions or inactions giving rise to such lack of
material compliance are reasonably capable of being cured, the Company shall
provide you with written notice of the same and the Company’s intention to
terminate the separation benefits specified in Section 3(a) below at
least twenty (20) days prior to the effective date of the termination of
separation benefits.  During such twenty
(20) day period, the Company will suspend payment(s) of the separation benefits
specified in Section 3(a) below, and if the actions or inactions giving rise to
such lack of material compliance are not timely cured, then the Company shall
immediately terminate any and all such separation payments and benefits.  In the event that you cure the circumstances
giving rise to such lack of material compliance within such twenty (20) day
period, the Company shall remove the suspension and continue to provide the
separation payments and benefits specified in Section 3(a) below.


 


3.               Payments, Benefits and
Taxes.


 


(a)          Separation Benefits. 
The Company will provide to Executive the payments and benefits
specified in Section 3(d)(i) (or Section 3(d)(ii) if a
Change in Control is consummated before the 90th day after the [Qualifying]Termination Date) of
the Employment Agreement, subject to Section 3(d)(iv) of the
Employment Agreement, but in no event will payments be provided under both
Sections 3(d)(i) and 3(d)(ii) of the Employment Agreement.  Subject to Section 3(e) below, such
payments and benefits will be provided to Executive at the times specified in
the Employment Agreement.


 


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(b)         Taxes.  Any tax
obligations of Executive and tax liability therefore, including without
limitation any penalties or interest based upon such tax obligations, that
arise from the benefits and payments made to Executive shall be Executive’s
sole responsibility and liability.  All
payments or benefits made under this Agreement to Executive shall be subject to
applicable tax withholding laws and regulations and Executive shall be required
to timely and fully satisfy any such withholding as a condition of receipt of
any payments or benefits.  The terms of Section 12
of the Employment Agreement are also applicable to this Agreement and to all
payments and benefits provided hereunder.


 


(c)          WARN Payments.  The payments
to Executive hereunder shall be considered as including any and all payments by
the Company that could or in fact become payable in connection with the
Executive’s termination of employment pursuant to any applicable legal
requirements, including, without limitation, the Worker Adjustment and
Retraining Notification Act (the “WARN” Act), California Labor Code
sections 1400-1408, or any other similar foreign, federal or state law.


 


(d)         Full Payment.  Except with
respect to any “Excluded Claims” (defined below), Executive represents and
warrants to the Company that, as of the Effective Date, the payments set forth
in Section 3(a) herein constitute all payments or obligations owed by
the Company to Executive in connection with any employment, severance, retention,
or a change in control plan or arrangement.


 


(e)          Internal Revenue Code Section 409A.  The terms of Section 14 of the Employment
Agreement are also applicable to this Agreement and to all payments and
benefits provided hereunder.


 


4.               Executive’s Representations,
Warranties and Covenants.


 


(a)          Executive reaffirms that he will continue to be bound
by, and will continue to comply with, all of the terms and conditions and
covenants in Sections 6 and 7 of the Employment Agreement and also all terms
and conditions of the Confidentiality Agreement (as such term is defined in the
Employment Agreement).


 


(b)         Executive represents and warrants to the Company that,
as of the Effective Date, Executive has no outstanding agreement or obligation
that is in conflict with any of the provisions of this Agreement, or that would
preclude Executive from complying with the provisions hereof, and further
certifies that Executive will not enter into any such conflicting agreement.


 


(c)          Executive represents and warrants to the Company that,
as of the Effective Date, Executive has not filed any claim against the Company
or its affiliates and has not assigned to any third party any claims against
the Company or its affiliates.


 


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(d)         Executive acknowledges that Executive has had the
opportunity to fully review this Agreement and, if Executive so chooses, to
consult with counsel, and is fully aware of Executive’s rights and obligations
under this Agreement.


 


5.               Executive’s Release of
Claims.  In exchange for the Company’s promises set
forth herein, all of which are good and valuable consideration, Executive
hereby covenants not to sue and releases and forever discharges the Company,
its owners, parents, subsidiaries, attorneys, insurers, agents, employees,
stockholders, directors, officers, affiliates, predecessors and successors of
and from any and all rights, claims, actions, demands, causes of action,
obligations, attorneys’ fees, costs, damages, and liabilities of whatever kind
or nature, in law or in equity, that Executive may have (whether known or not
known) (collectively, “Claims”), accruing to Executive as of the
Effective Date, that Executive has ever had, including but not limited to
Claims based on and/or arising under Title VII of the Civil Rights Act of
1964, as amended, The Americans with Disabilities Act, The Family Medical Leave
Act, The Equal Pay Act, The Employee Retirement Income Security Act, The Fair
Labor Standards Act, and/or the California Fair Employment and Housing Act; The
California Constitution, The California Government Code, The California Labor
Code, The Industrial Welfare Commission’s Orders, the Worker Adjustment and
Retraining Notification Act, California Labor Code sections 1400-1408, and any
and all other Claims Executive may have under any other federal, state or local
Constitution, Statute, Ordinance and/or Regulation; and all other Claims
arising under common law including but not limited to tort, express and/or
implied contract and/or quasi-contract, arising out of or, in any way, related
to Executive’s previous relationship with the Company as an employee,
consultant and/or director.  Furthermore,
Executive acknowledges that Executive is waiving and releasing any rights
Executive may have under the Older Workers Benefit Protection Act and Age
Discrimination in Employment Act of 1967 (“ADEA”), as amended, and that
this waiver and release is knowing and voluntary.  Executive acknowledges that the consideration
given for this waiver and release is in addition to anything of value to which
Executive was already entitled. 
Executive further acknowledges that Executive has been advised by this
writing that in accordance with ADEA:


 


(a)         Executive should consult with an attorney
prior to executing this Agreement;


 


(b)        Executive has at least twenty-one (21)
days within which to consider this Agreement;


 


(c)         Executive has up to seven (7) days
following the execution of this Agreement by the Executive to revoke the
Agreement by timely providing written notice of revocation to the Company; and


 


(d)        this Agreement shall not be effective
until the revocation period in Section 5(c) has expired without
revocation by Executive.


 


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The Company and Executive agree that the release set forth in this Section 5
shall be and remain in effect in all respects as a complete general release as
to the matters released.  Notwithstanding
anything to the contrary herein, the Parties agree that Executive is not
waiving any Claims he may have that arise from or are incurred in connection
with any of the following matters (collectively, the “Excluded Claims”).  (i) the Company’s breach of its
obligations under this Agreement or under Section 3(d)(i) and 3(d)(ii) of
the Employment Agreement; (ii) claims for indemnification under Section 2802
of the California Labor Code, pursuant to Section 13 of the Employment
Agreement, under the Company’s Certificate of Incorporation, Articles of
Incorporation or by-laws, pursuant to that certain Indemnification Agreement
(as amended from time to time) dated April 10, 2010, and under any
insurance policy of the Company or the established policies of the Company or
any affiliate thereof expressly providing for such indemnity between Executive
and the Company or any affiliate thereof; (iii) claims for any vested benefits
under the terms of any of the Company’s pension, profit sharing, health,
welfare, stock option, restricted stock, stock incentive, deferred
compensation, supplemental compensation and any other welfare, benefit or other
plan of the Company; (iv) claims for workers’ compensation benefits; (v) any
transactions or agreements entered into, and any occurrences, acts or omissions
occurring, after the Effective Date; (vi) claims arising from Executive’s
status or capacity as a stockholder of the Company or arising under federal
and/or state securities laws; and (vii) claims arising, in Executive’s
sole capacity as a stockholder, under the Third Amended and Restated
Shareholders Agreement, dated December 24, 2007, and amendments thereto,
to which Executive is a party, and under any additional written agreements
between the stockholders, including without limitation the Amended and Restated
Investors’ Rights Agreement, dated December 24, 2007, as any of such
agreements may be amended from time to time.


 


6.               Civil Code Section 1542. 
Executive and the Company acknowledge that they are familiar with the
provisions of California Civil Code Section 1542, which provides as
follows:


 


A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.


 


Executive, being aware of
said Code section, agrees to expressly waive any rights Executive may have
thereunder (except with respect to Excluded Claims), as well as under any other
statute or common law principles of similar effect.


 


7.               Labor Code Section 206.5. 
Upon receipt by Executive of the “Accrued Obligations” (as such term is
defined in the Employment Agreement) including all of his salary and unused
vacation time, each accrued through the [Qualifying]Termination Date, Executive
acknowledges that these payments represent all such monies due to Executive
through the [Qualifying] Termination Date. 
In light of the payment by the Company of all wages due, or to become
due 


 


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to Executive (excluding
any additional amounts payable to Executive under Section 3(d) of the
Employment Agreement), California Labor Code Section 206.5 is not
applicable to the Parties hereto.  That
section provides in pertinent part as follows:


 


No employer shall require the execution of any release of any claim or
right on account of wages due, or to become due, or made as an advance on wages
to be earned, unless payment of such wages has been made.


 


8.               Governing Law. 
This Agreement will be governed by the internal substantive laws, but
not the choice of law rules, of the State of California.


 


9.               Assignment. 
This Agreement and all rights under this Agreement will be binding upon
and inure to the benefit of and be enforceable by the Parties hereto and their
respective owners, agents, officers, stockholders, employees, directors, attorneys,
insurers, subsidiaries, parents, affiliates, successors, personal or legal
representatives, executors, administrators, heirs, distributes, devisees,
legatees, and assigns.  This Agreement is
personal in nature, and none of the Parties to this Agreement will, without the
written consent of the other, assign or transfer this Agreement or any right or
obligation under this Agreement to any other person or entity; except that the
rights and obligations of the Company under this Agreement may be assigned
(without the consent of the Executive) to an entity which becomes the successor
to the Company as the result of a merger or other corporate reorganization or
similar transaction or sale of substantially all the assets to a successor
which continues the business of the Company or any other subsidiary of the
Company.


 


10.         Notices.  The terms of Section 11
of the Employment Agreement are also applicable to this Agreement.


 


11.         Integration and Interpretation. 
This Agreement, and the surviving provisions of the Employment
Agreement, represents the entire agreement and understanding between the
parties as to the subject matter hereof and supersedes all prior agreements
whether written or oral.  The terms of
this Agreement have been voluntarily agreed to by Executive and Company, and
the language used in this Agreement shall be deemed to be the language chosen
to express the mutual intent of the Parties. 
This Agreement shall be construed without regard to any presumption or rule requiring
construction against Company or Executive, or in favor of the Party receiving a
particular benefit under this Agreement.


 


12.         Modification.  This
Agreement may only be amended in a writing signed by Executive and an
authorized representative of the Company and which expressly references that
this Agreement is being amended.  No
waiver, alteration, or modification of any of the provisions of this Agreement
will be binding unless in writing and signed by the party against whom
enforcement of the change or modification is sought.  Failure or delay on the part of either party
hereto to enforce any right, power, or privilege hereunder will not be deemed
to constitute a waiver thereof. 
Additionally, a waiver by either party or a breach of any promise hereof
by the 


 


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other party will not
operate as or be construed to constitute a waiver of any subsequent waiver by
such other party.


 


13.         Severability.  Whenever
possible, each provision of this Agreement will be interpreted in such a manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other jurisdiction,
but this Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision had never
been contained herein.


 


14.         No Representations. 
Each Party represents that it has had the opportunity to consult with an
attorney, and has carefully read and understands the scope and effect of the
provisions of this Agreement.  Neither
Party has relied upon any representations or statements made by any other Party
hereto which are not specifically set forth in this Agreement.  By entering into this Agreement, the Company
is not acknowledging or admitting any fault, wrongdoing, or liability on its
part in any way.


 


15.         Authority.  The Company
represents and warrants that the undersigned has the authority to act on behalf
of the Company and to bind the Company and all who may claim through it to the
terms and conditions of this Agreement. 
Executive represents and warrants that he has the capacity to act on his
own behalf and on behalf of all who might claim through Executive to bind them
to the terms and conditions of this Agreement. 
Each Party warrants and represents that there are no liens or claims of
lien or assignments in law or equity or otherwise of or against any of the
claims or causes of action released herein.


 


16.         Voluntary Execution of Agreement. 
This Agreement is executed voluntarily and without any duress or undue
influence on the part or behalf of the Parties hereto, with the full intent of
releasing all claims.  The Parties
acknowledge that:


 


(a)          They have read this Agreement;


 


(b)         They have been represented in the
preparation, negotiation, and execution of this Agreement by legal counsel of
their own choice or that they have voluntarily declined to seek such counsel;


 


(c)          They understand the terms and
consequences of this Agreement and of the releases it contains; and


 


(d)         They are fully aware of the legal and
binding effect of this Agreement.


 


17.         Execution in Multiple Counterparts. 
This
Agreement may be executed in multiple counterparts, each of which when together
shall be deemed to constitute the executed original, and each counterpart shall
have the same force and effect as an original and shall constitute an
effective, binding agreement on the part of the undersigned.


 


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IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
dates shown below.


 


 


	
  MICHAEL V. LEWIS

  	
   

  	
  REALD INC.

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  [NAME/TITLE]

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  Dated:

  	
   

  
							



 


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