Exhibit
4.4


 


AMENDMENT NO. 2 TO THIRD AMENDED AND

RESTATED SHAREHOLDERS AGREEMENT


 


This
Amendment No. 2 to Third Amended and Restated Shareholders Agreement (this
“Amendment”) is made and entered into as of May 1, 2009, by and
between REAL D, a California corporation (the “Company”), and the
undersigned shareholders of the Company (the “Consenting Shareholders”).
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed thereto in the Shareholders Agreement (as defined
below).


 


R E C I T A L S


 


WHEREAS,
the Company, the Consenting Shareholders and certain other shareholders of the
Company have heretofore entered into that certain Third Amended and Restated
Shareholders Agreement, dated as of December 24, 2007 (as amended, the “Shareholders  Agreement”);


 


WHEREAS,
Section 10.4 of the Shareholders Agreement provides that the Shareholders
Agreement may be amended by a written agreement executed by (i) the
Company, (ii) the holders of a majority of the Stock then held by the Series A
Holders, (iii) the holders of a majority of the Stock then held by the Series B
Holders, (iv) the holders of a majority of the Stock then held by the Series C
Holders, and (v) the Founders;


 


WHEREAS,
the Company and the Consenting Shareholders constitute each of (i) the
Company, (ii) the holders of a majority of the Stock then held by the Series A
Holders, (iii) the holders of a majority of the Stock then held by the Series B
Holders, (iv) the holders of a majority of the Stock then held by the Series C
Holders and (v) the Founders; and


 


WHEREAS,
the Company and the Consenting Shareholders desire to amend the Shareholders
Agreement as more fully set forth herein.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the agreements and obligations set forth herein
and for other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:


 


SECTION 1.
Amendments to Definition of “Permitted Transfer”. The Company and the
Consenting Shareholders agree that the definition of “Permitted Transfer” set
forth in Section 1.1(j) of the Shareholders Agreement is hereby
amended to (x) delete the word “and” at the end of clause (iv) of
such definition, (y) renumber clause (v) of such definition to become
clause (vii) of such definition, and (z) insert a new clause (v) and
a new clause (vi) of such definition to read in their entirety as follows:


 


(v)             the transfer of an aggregate of no more than 769,436
shares of Series D Preferred by Pequot Navigator Offshore Fund, Inc.,
Pequot Core Global Offshore Fund, Inc., Pequot Core Investors Fund, Inc.
and Pequot Institutional


 

















 


Fund, Inc.,
to one or more Affiliates of such Series D Holders that, at the time of
such transfer but prior to giving effect to such transfer, executes a proper
Joinder to the Shareholders Agreement; and


 


(vi)            the transfer of no more than 5,000 shares of Common Stock
by William D. Budinger to Mark Luttier; provided, that, at the time of such
transfer but prior to giving effect to such transfer, such transferee executes
a proper Joinder to the Shareholders Agreement; and”


 


SECTION 2.
Governing Law. This Amendment shall be interpreted and enforced 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


 


SECTION 3.
References to the Agreement. Except as amended by this Amendment, all
other terms, conditions and covenants of the Shareholders Agreement are hereby
confirmed by the parties hereto and remain unchanged and in full force and
effect. From and after the date hereof, all references to the “Agreement”
contained in the Shareholders Agreement, shall be deemed to be references to
the Shareholders Agreement as amended by this Amendment.


 


SECTION 4.
Counterparts. This Amendment may be executed in multiple counterparts,
each of which shall be deemed an original and all of which shall be deemed to
constitute one and the same instrument, and it shall be sufficient for each
party to have executed at least one, but not necessarily the same, counterpart.


 


[Signatures
Follow]


 

















 


IN WITNESS WHERE OF, this Amendment was executed as of the date first
above written.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  REAL D

  
	
   

  	
   

  
	
   

  	
  /s/ Andrew Skarupa

  
	
   

  	
  Name: 

  
	
   

  	
  Title: 

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 

















 


	
   

  	
  FOUNDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Michael Lewis

  
	
   

  	
  Michael Lewis

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 

















 


	
   

  	
  /s/ Joshua Greer

  
	
   

  	
  Joshua Greer

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 














 


	
   

  	
  SERIES A HOLDERS:

  
	
   

  	
   

  
	
   

  	
  PERSPECTIVE INVESTMENTS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Daniel MacLean

  
	
   

  	
  Name: Daniel MacLean

  
	
   

  	
  Title: Director

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 

















 


	
   

  	
  /s/ Richard Huston

  
	
   

  	
  Richard Huston

  
	
   

  	
  June 10 2009

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 

















 


	
   

  	
  /s/ William D. Budinger

  
	
   

  	
  William D. Budinger

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 

















 


	
   

  	
  HOBBIT INVESTMENTS, LLC

  
	
   

  	
  By: Sunnyside Mgt., it’s manager

  
	
   

  	
   

  
	
   

  	
  /s/ William D. Budinger

  
	
   

  	
  Name: William D. Budinger

  
	
   

  	
  Title: President

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 

















 


	
   

  	
  SERIES B HOLDERS:

  
	
   

  	
   

  
	
   

  	
  PERSPECTIVE INVESTMENTS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Daniel MacLean

  
	
   

  	
  Name: Daniel MacLean

  
	
   

  	
  Title: Director

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 

















 


	
   

  	
  /s/ Richard Huston

  
	
   

  	
  Richard Huston

  
	
   

  	
  June 10 2009

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 














 


	
   

  	
  /s/ William D. Budinger

  
	
   

  	
  William D. Budinger

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 

















 


	
   

  	
  HOBBIT INVESTMENTS, LLC

  
	
   

  	
  By: Sunnyside Mgt. its Manager

  
	
   

  	
   

  
	
   

  	
  /s/ William D. Budinger

  
	
   

  	
  Name: William D. Budinger

  
	
   

  	
  Title: President

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 

















 


	
   

  	
  THE SUSAN BUDINGER LONCKI

  
	
   

  	
  SEPARATE PROPERTY TRUST

  
	
   

  	
   

  
	
   

  	
  /s/ Susan Martin Budinger

  
	
   

  	
  Name: Susan Martin Budinger

  
	
   

  	
  Title: Trustee

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 

















 


	
   

  	
  REAL BIG, LLC

  
	
   

  	
   

  
	
   

  	
  /s/ David L. Marrs

  
	
   

  	
  Name: David L. Marrs

  
	
   

  	
  Title: Manager

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 

















 


	
   

  	
  /s/ Paul Kagan

  
	
   

  	
  Paul Kagan

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 

















 


	
   

  	
  /s/ William Charles Powers and Carolyn C Powers

  
	
   

  	
  William Charles Powers and Carolyn Clark Powers

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 

















 


	
   

  	
  /s/ Paul L. MacCaskill

  
	
   

  	
  Paul L. MacCaskill

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]


 

















 


	
   

  	
  SERIES C HOLDERS:

  
	
   

  	
   

  
	
   

  	
  SHAMROCK CAPITAL GROWTH FUND

  
	
   

  	
  II, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Stephen D Royer

  
	
   

  	
  Name: Stephen D Royer

  
	
   

  	
  Title: Executive Vice President

  



 


[Signature
Page to Amendment No. 2 to Third Amended and Restated Shareholders Agreement]