Exhibit 10.31


 


SEPARATION
AGREEMENT AND GENERAL RELEASE OF CLAIMS


 


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


 


WHEREAS,
Executive was an employee of the Company and served as its President of
Worldwide Cinema 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 was terminated [by the Company without Cause] [by Executive for
Good Reason] (a “Qualifying Termination”) on [DATE] (the “Termination
Date”), and (ii) that Executive will release the Company and its
affiliates from any and all claims as of the Effective Date;


 


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


 


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


 


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


 


1.     Qualifying Termination of
Employment.  Executive and
the Company acknowledge and agree that Executive’s employment with the Company
terminated as of the close of business on the Termination Date without regard
to whether Executive signs this Agreement or agrees to the following terms and
conditions, and that such termination was treated as a Qualifying Termination
by the Company.  As of the Termination
Date, it is mutually agreed that Executive is no longer [an employee] [or
director] of the Company and no longer holds any positions or offices with the
Company [except for his membership on the Company’s Board of Directors].


 


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


 


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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 written notice from the Company shall
provide you with at least twenty (20) days to cure such noncompliance, prior to
the effective date of the termination of separation benefits specified in Section 3(a) below.  During such twenty (20) day period, the
Company will suspend payment(s) of the separation benefits specified in Section 3(a) below,
and if the actions or inactions giving rise to such lack of material compliance
are not timely cured, then the Company shall immediately terminate any and all
such separation payments and benefits. 
In the event that 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 Termination Date) of the
Employment Agreement, subject to Section 3(d)(v) 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.


 


(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 


 


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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 13 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.


 


(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 


 


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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.


 


The Company and Executive agree that the release set forth in this Section 5
shall be and remain in effect in all respects as a complete general release as
to the matters released.  Notwithstanding
anything to the contrary herein, the Parties agree that Executive is not
waiving any Claims he may have that arise from or are incurred in connection
with any of the following matters (collectively, the “Excluded Claims”).  (i) the Company’s breach of its
obligations under Section 3(a) above or under Section 3(d)(i) and
3(d)(ii) of the Employment Agreement; (ii) claims for indemnification
under Section 2802 of the California Labor Code, 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 


 


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Company; (iv) claims for workers’ compensation benefits; and (v) any
transactions or agreements entered into, and any occurrences, acts or omissions
occurring, after the Effective Date.


 


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


 


A GENERAL RELEASE
DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST
IN HIS 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
Termination Date, Executive acknowledges that these payments represent all such
monies due to Executive through the Termination Date.  In light of the payment by the Company of all
wages due, or to become due to Executive (excluding any additional amounts
payable to Executive under Section 3(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 


 


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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 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 


 


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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.


 


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


 


	
  [EXECUTIVE]

  	
   

  	
  REALD INC.

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  [NAME/TITLE]

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  Dated:

  	
   

  



 


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