Exhibit 4.3


 


THIRD
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT


 


This
Third Amended and Restated Shareholders Agreement (“Agreement”)  is made and entered into as of this 24th
day of December 2007, by and among REAL D, a California corporation (the “Company”), the holders of Series A Preferred
Stock listed on Exhibit A
hereto (the “Series A Holders”), the holders of Series B Preferred
Stock listed on Exhibit A
hereto (the “Series B Holders”)  the holders of Series C Preferred
Stock listed on Exhibit A
hereto (the “Series C Holders”), the holders of the Series D
Preferred Stock listed on Exhibit A
hereto (the “Series D Holders”, and collectively with the Series A
Holders, the Series B Holders and the Series C Holders, the “Investors”), Michael Lewis, Joshua Greer (together
with Michael Lewis, the “Founders”), and any additional shareholder who
becomes a party hereto or is bound hereby as provided herein (collectively with
the Founders and the Investors, the “Shareholders”)  with reference to the following facts:


 


RECITALS


 


WHEREAS, each of the Shareholders holds shares
of the capital stock of the Company (or options or warrants therefor) or
entered into a Series D Preferred Stock Purchase Agreement dated
December 24, 2007 (the “Purchase Agreement”)  with the Company to acquire shares of
Series D Convertible Preferred Stock, no par value per share, of the
Company (the “Series D Preferred”);


 


WHEREAS, the Investors other than the
Series D Holders (the “Prior Investors”)  are holders of outstanding shares of the
Company’s Series A Preferred Stock, Series B Preferred Stock or
Series C Preferred Stock (the “Series C Preferred”)  issued by the Company to such Prior
Investors pursuant to a Series A Preferred Stock Purchase Agreement by and
among the Company, the Founders and such Prior Investors dated as of
July 16, 2004 (the “Series A Agreement”), pursuant to a Series B Preferred
Stock Purchase Agreement by and among the Company, the Founders and such Prior
Investors dated as of April 27, 2005 (the “Series B Agreement”), or pursuant to a Series C Purchase
Agreement by and among the Company and such Prior Investors dated as of
February 22, 2007 (the “Series C Agreement”), and such parties have also been granted
certain information rights, rights of refusal, co-sale rights, participation
rights, and other rights under a Second Amended and Restated Shareholders
Agreement 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 from the Company and as a
condition to the Series D Holders’ acquisition of the Company’s capital
stock under the Purchase Agreement, 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 12.4  of the Prior Agreement provides that the Prior Agreement
may be amended by the written consent of the Company, the parties to the Prior
Agreement holding a majority of the voting power of the Common Stock then held
by such parties, and the parties to the Prior Agreement holding a majority of
the voting power of the Preferred Stock then held by such parties.


 

















 


AGREEMENT


 


NOW,
THEREFORE, in
consideration of the foregoing recitals and the mutual promises herein
contained, and for other consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto agree as follows:


 


1.                                      Certain Definitions.


 


1.1                               For purposes of this Agreement, the
following terms have the following meanings:


 


(a)           “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.


 


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


 


(c)           “Common Stock”  means common stock of the Company.


 


(d)           “Offered Stock”  means all Stock proposed to be Transferred by a
Shareholder.


 


(e)           “Outstanding Common Stock”  means the then outstanding shares of the Company’s
Common Stock, on a fully-diluted, as-converted, as-exercised, as-exchanged
basis, including all outstanding convertible securities and all options,
warrants and rights to acquire Common Stock, regardless of whether such
options, warrants and rights to acquire Common Stock are vested or unvested.


 


(f)            “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).


 


(g)           “Preferred Stock”  means preferred stock of the Company.


 


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


 


(i)            “Stock”  means and includes all shares of the capital stock and
other securities (including, without limitation, options, warrants and other
rights to acquire


 


2

















 


(whether through
exercise, exchange, conversion or otherwise) capital stock) of the Company and
any other shares or securities thereafter issued in respect of such shares in
any reorganization, recapitalization, reclassification, readjustment or other
change in the capital structure of the Company.


 


(j)            “Transfer”  and “Transferred”  mean and include any direct or indirect
sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust,
gift, transfer by bequest, devise or descent, or other transfer or disposition
of any kind, including but not limited to transfers to receivers, levying
creditors, trustees or receivers in bankruptcy proceedings or general assignees
for the benefit of creditors, whether voluntary or by operation of law,
directly or indirectly, including without limitation a transfer incident to
divorce, legal separation, bankruptcy or similar proceeding, death or
otherwise, but except  for (each, a “Permitted Transfer”):


 


(i)            any transfers of Stock (whether by
gift or otherwise) during a Shareholder’s lifetime or on a Shareholder’s death
by will or intestacy to such Shareholder’s “immediate family” (as defined
below) or to a trust for the benefit of such Shareholder or such Shareholder’s
immediate family, or to a Shareholder’s heirs, estate, administrators or
executors. For purposes of this Agreement, the term “immediate family”
means Shareholder’s spouse, the lineal descendant or antecedent, father,
mother, brother or sister, child, adopted child or grandchild or adopted
grandchild of Shareholder or Shareholder’s spouse, or the spouse of any child,
adopted child, grandchild or adopted grandchild of Shareholder or Shareholder’s
spouse;


 


(ii)           any transfer of Stock by a
Shareholder made: (1) pursuant to a statutory merger or statutory
consolidation of the Company with or into another entity or entities;
(2) pursuant to and in accordance with the Buy-Sell Agreement dated
May 28, 2004 by and among the Company and the Founders (“Buy-Sell Agreement”), or (3) pursuant to the winding up
and dissolution of the Company;


 


(iii)          any transfers of Stock by Shamrock to
an Affiliate thereof or to its members, partners, former partners, or former
members; and


 


(iv)          any transfers of Stock pursuant to
such Shareholder’s exercise of its right of refusal and/or right of co-sale
hereunder.


 


2.                                      Transfers.


 


2.1          Generally. Before any Shareholder may effect any Transfer of
any Stock, such Shareholder (the “Selling Shareholder”)  must give to the Company a written notice
signed by the Selling Shareholder (the “Selling Shareholder’s Notice”)  and must comply with Section 2.2  and Section 3  and, if a Founder, Section 4. The Selling Shareholder’s Notice shall state: (a) the
Selling Shareholder’s bona fide intention to transfer such Offered Stock;
(b) the number of shares of Offered Stock proposed to be transferred to
each proposed purchaser or other transferee (“Proposed Transferee”); (c) the name, address and
relationship, if any, to the Selling Shareholder of each Proposed Transferee; and
(d) the bona fide cash price or, in reasonable detail, other
consideration, per share for which the Selling Shareholder proposes to transfer
such


 


3

















 


Offered Stock to
each Proposed Transferee (the “Offered Price”)  and the proposed time and date of payment
and other relevant terms of the proposed sale. Upon the request of the Company,
the Shareholder will promptly furnish to the Company such other information as
may be reasonably requested to establish that the offer and Proposed
Transferee(s) are bona fide. By way of clarification, the terms of Sections 2.1, 3  and 4  shall not apply to Permitted Transfers
but Section 2.2  shall apply to Permitted Transfers.


 


2.2          Prohibited Transfers. No Transfers of Stock and no Permitted
Transfers of Stock shall be permitted unless (a) they are made in
accordance with the applicable terms and conditions of this Agreement,
(b) the transferee(s) (if other than the Company) agree to hold the
Stock being Transferred subject to all of the provisions of this Agreement to
the same extent as the transferor, and (c) if such transferee is not
already a party hereto, such transferee has executed and delivered to the
Company an instrument in the form reasonably required by the Company agreeing
to be bound by this Agreement. In addition, no Transfers of Stock and no
Permitted Transfers of Stock shall be permitted to any Person listed on Exhibit C. Regardless of anything else contained in
this Agreement, any attempt by any Shareholder to make a Transfer or Permitted
Transfer of any beneficial or record ownership of any Stock in violation of any
provision of this Agreement will be void and shall not confer on any transferee
or purported transferee any rights whatsoever, and the Company will not
(i) transfer on its books any Stock that has been sold, gifted or
otherwise Transferred in violation of this Agreement, or (ii) treat as
owner of such Stock, or accord the right to vote to or pay dividends to any
purchaser, donee or other transferee to whom such Stock may have been so
Transferred.


 


2.3          Buy-Sell Agreement. The Founders agree to take such actions,
give such written assurances, and otherwise execute such instruments as may be
reasonably necessary to ensure that the Company is afforded its rights and
options under the Buy-Sell Agreement. The parties agree that a Transfer made
pursuant to the Buy-Sell Agreement shall be a “Permitted Transfer” under this
Agreement but that the transferee in such Permitted Transfer shall nonetheless
hold such transferred securities subject to this Agreement. Furthermore, in the
event of any conflict between the Buy-Sell Agreement and this Agreement, the
terms and conditions of this Agreement shall control.


 


3.             Rights Of Refusal.


 


3.1          Company’s Refusal Right. The Company has a right of first refusal
(the “Company’s Refusal Right”)  to purchase all or a portion of the
Offered Stock, exercisable by written notice to the Selling Shareholder within
thirty (30) days (the “Company’s Refusal Period”)  after the date of the Selling
Shareholder’s Notice to the Company. If the Company does not intend to exercise
the Company’s Refusal Right in full, the Company will send written notice
thereof (the “Company’s Expiration Notice”)  to the Selling Shareholder, the Investors
and the Founders at least fifteen (15) days before the expiration of the
Company’s Refusal Period. The Company’s Expiration Notice will specify the
remaining Offered Stock subject to the Shareholders’ Right of First Refusal
described below.


 


3.2          Shareholder Rights of Refusal. If the Company does not exercise the
Company’s Refusal Right to purchase all of the Offered Stock, then the
Series C Holders and the


 


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Series D Holders
will have a first right (the “Series C/D Refusal Right”)  and the Series A Holders, the
Series B Holders and the Founders that are then still employees of the
Company will together, on parity with each other but subsequent to the
Series C Holders and the Series D Holders, have a secondary right (the “Shareholders Refusal Right”) to purchase all of the Offered Stock not
purchased by the Company (the “Remaining Offered Stock”). The Series C/D Refusal Right and the
Shareholders Refusal Right may be exercised as follows:


 


(a)           Each Series C Holder and/or Series D
Holder desiring to purchase any or all of the Remaining Offered Stock must,
within the fifteen (15) day period commencing on the date of the Company’s
Expiration Notice (the “Series C/D Refusal Period”), give written notice to the Selling
Shareholder and to the Company of such Series C Holder’s or such
Series D Holder’s election to purchase up to its Pro Rata Share of the
Remaining Offered Stock, including the number of shares and type of Remaining
Offered Stock that such Series C Holder or such Series D Holder
desires to purchase. For purposes of this Section 3.2,  an Investor’s “Pro Rata Share”  will be defined as a fraction, the
numerator of which will be the number of shares of Outstanding Common Stock
then held by such Series C Holder or such Series D Holder, and
(ii) the denominator of which will be the sum of the total number of
shares of Outstanding Common Stock then held by all Series C Holders and
Series D Holders. Within five (5) days after expiration of the Series C/D
Refusal Period, the Company will give written notice to each Series C
Holder and each Series D Holder that purchases its full Pro Rata Share of
the Remaining Offered Stock (each, a “Fully-Participating Series C/D Holder”)  of any other Series C Holder’s or
Series D Holder’s failure to do likewise. Within the ten (10) day
period commencing after notice of such information, each Fully-Participating
Series C/D Holder shall be entitled to obtain (unless the
Fully-Participating Series C/D Holders agree otherwise in writing) that
portion of the Remaining Offered Stock for which the non-Fully-Participating
Series C/D Holders were entitled to subscribe, but for which the
non-Fully-Participating Series C/D Holders did not subscribe, that is
equal to the proportion that the number of shares of Outstanding Common Stock
then held by such Fully-Participating Series C/D Holders bears to the
total number of shares of Outstanding Common Stock then held by all
Fully-Participating Series C/D Holders, with additional overallotment
rights until all of the Remaining Offered Stock has been subscribed for or
until no Fully-Participating Series C/D Holders desires to purchase any
unsubscribed for Remaining Offered Stock.


 


(b)           If any Offered Stock remains
unsubscribed for after the expiration of the procedures set forth in Section 3.2(a),  then the Company shall given written
notice thereof to each Series A Holder, each Series B Holder, and
each Founder that is then still an employee of the Company, and each such
Shareholder shall have the Shareholder Refusal Right, exercisable by written
notice to the Company and the Selling Shareholder during the 10 day period
thereafter (the “Shareholder
Refusal Period”), to purchase up to its pro rata share
(based on such Shareholder’s ownership of Outstanding Common Stock relative to
the Outstanding Common of such other Shareholders) of the remaining shares of
Offered Stock, including in such election notice the number of shares and type
of Remaining Offered Stock that such Shareholder desires to purchase. Within
five (5) days after expiration of the Shareholder Refusal Period, the
Company will give written notice to each Series A Holder, each
Series B Holder, and each Founder that purchases its full pro rata share
of the Remaining Offered Stock (each, a “Fully-Participating Shareholder”)  of any other such Shareholder’s failure
to do likewise. Within the


 


5

















 


ten (10) day period
commencing after notice of such information, each Fully-Participating
Shareholder shall be entitled to obtain (unless the Fully-Participating
Shareholders agree otherwise in writing) that portion of the Remaining Offered
Stock for which the non-Fully-Participating Shareholders were entitled to
subscribe, but for which the non-Fully-Participating Shareholders did not
subscribe, that is equal to the proportion that the number of shares of
Outstanding Common Stock then held by such Fully-Participating Shareholder
bears to the total number of shares of Outstanding Common Stock then held by
all Fully-Participating Shareholders, with additional overallotment rights
until all of the Remaining Offered Stock has been subscribed for or until no
Fully-Participating Shareholder desires to purchase any unsubscribed for
Remaining Offered Stock.


 


(c)           None of the Investors or Founders
will have a right to purchase any of the Remaining Offered Stock unless the
Investors and Founders, in the aggregate, exercise their collective rights of
first refusal pursuant to this Section 3.2  to purchase all of the Remaining Offered
Stock in accordance with the terms hereof. Within twenty (20) days after
expiration of the Shareholder Refusal Period, the Company will give written
notice (the “Shareholders’
Expiration Notice”)  to the Selling Shareholder, the Investors
and the Founders specifying (i) that all of the Offered Stock was
subscribed by the Company (and/or its assignees) and/or Investors and/or
Founders exercising their respective rights of refusal; or (ii) in the
event that the Company (and/or its assignees) and/or Investors and/or Founders
did not elect to purchase all of the Offered Stock, that the Selling
Shareholder is entitled to transfer the Offered Stock in accordance with Section 3.6  hereof.


 


3.3          Purchase Price. The purchase price for the Offered Stock
to be purchased by the Company exercising its Company Right of First Refusal or
by a Shareholder exercising its respective Series C/D Refusal Right or
Shareholder Refusal Right will be the Offered Price, and will be payable as set
forth in Section 3.4 hereof.
If the Offered Price includes consideration other than cash, the cash
equivalent value of the non-cash consideration will be determined by the
parties to such purchase or, if they cannot agree, by an independent valuation
firm of recognized national standing mutually selected by the Selling
Shareholder, on the one hand, and the Investors subscribing for a majority of
the Offered Shares, on the other hand, which determination will be binding upon
the Company and the Shareholders absent manifest fraud or error. If the Proposed
Transfer in question is by operation of law or otherwise an involuntary
transfer (including, without limitation, a Transfer incident to divorce, legal
separation, bankruptcy or other proceedings, death or other involuntary
transfer) (an “Involuntary
Transfer”), the purchase price for the Offered Stock
shall be the fair market value of such Offered Securities, which shall be a
price determined by the Board in good faith, determined within 30 days after
the Company is put on notice of such transfer. Any Shareholder that is married
agrees (and such
Shareholder’s spouse agrees through the Consent attached hereto as Exhibit B) that, upon the dissolution of such
marriage, any divorce decree, separate maintenance agreement, property
settlement, or similar agreement incident thereto shall include provisions
permitting the parties hereto to have the options afforded to them hereunder to
purchase from such spouse any interest of such spouse in any shares of the
Company and shall otherwise include any necessary provisions to give effect to
this Agreement in accordance with its terms and conditions.


 


6














 


3.4          Payment. Payment of the purchase price for Offered
Stock purchased by the Company exercising its Company Right of First Refusal or
by a Shareholder exercising its respective Series C/D Refusal Right or
Shareholder Refusal Right will be made within ten (10) days after the date
of the applicable Expiration Notice. Payment of the purchase price will be
made, at the option of the Company or, as the case may be, by a Shareholder,
(a) in cash (by check or wire transfer), (b) by cancellation of all
or a portion of any outstanding indebtedness of the Selling Shareholder to the
Company or such Shareholder, as the case may be, or (c) by any combination
of the foregoing.


 


3.5          Rights of Shareholder. Upon the date that payment is made for
the Offered Stock purchased by the Company exercising its Company Right of
First Refusal or by a Shareholder exercising its respective Series C/D
Refusal Right or Shareholder Refusal Right, the Selling Shareholder will have
no further rights as a holder of such Offered Stock, and the Selling
Shareholder will forthwith cause all certificate(s) evidencing such
Offered Stock to be surrendered to the Company for cancellation, and, as to
purchases by Shareholder(s), for transfer to the purchasing Shareholder(s). By
way of clarification but not limitation, a Shareholder’s exercise or
non-exercise of its rights under this Section 3
or under Section 4  shall not adversely affect its rights
hereunder or thereunder with respect to subsequent Transfers.


 


3.6          Selling Shareholder’s Right to Transfer. If
the Company, the Investors and the Founders have not elected to purchase all of
the Offered Stock pursuant to exercise of the Company Right of First Refusal,
the Series C/D Refusal Right, and the Shareholder Refusal Right, then,
subject to the Right of Co-Sale pursuant to Section 4  if the Selling Shareholder is a Founder, the Selling
Shareholder may transfer that portion of the Offered Stock permitted to be sold
by the Selling Shareholder to any Person named as a Proposed Transferee in the
Selling Shareholder’s Notice, at the Offered Price or at a higher price,
provided that such transfer (a) is consummated within 90 days after the
date of the Selling Shareholder’s Notice and (b) is in accordance with the
terms and conditions of this Agreement and all applicable laws (including
applicable securities laws). If the Offered Stock is not so transferred during
such 90 day period, then the Selling Shareholder will not transfer any of such
Offered Stock without complying again in full with the provisions of this
Agreement.


 


4.             Right Of Co-Sale.


 


4.1          Right of Co-Sale. In the event that the Selling Shareholder
who proposes to Transfer the Offered Stock is one of the Founders, and the
Company and Investors have waived or failed to timely exercise their Rights of
First Refusal to purchase all of the Offered Stock, each of the Investors will
have the right to participate in the Transfer of any Offered Stock in the
manner set forth herein (the “Right of Co-Sale”). Pursuant to this Section 4,  each Investor may transfer to the Proposed
Transferee(s) identified in the Selling Shareholder’s Notice such
Investor’s Pro Rata Share of the Offered Stock, by giving written notice to the
Selling Shareholder within ten (10) days after the date of the Investors’
Expiration Notice, specifying the number of shares and type of Stock that such
Investor desires to transfer to each Proposed Transferee by exercising the
Right of Co-Sale. For purposes of this Section 4,  a Shareholder’s “Pro Rata Share”  will be defined as a fraction, the numerator
of which is the number of shares of Outstanding Common Stock then owned by such
Investor, and the denominator of which is


 


7

















 


the number of shares of
Outstanding Common Stock then owned by all Investors having a Right of Co-Sale
hereunder plus the number of shares of Outstanding Common Stock held by the
Selling Shareholder who proposes the Transfer.


 


4.2          Consummation of Co-Sale. Each Investor, in exercising the Right of
Co-Sale, may effect such Investor’s participation in such Transfer by
delivering to the Selling Shareholder at the closing of the transfer of Offered
Stock to such transferee (the “Closing”)  one or more certificates, properly
endorsed for Transfer, representing such Stock to be Transferred by such
Investor. At the Closing, such certificates or other instruments will be
transferred and delivered to the Proposed Transferee(s) set forth in the
Selling Shareholder’s Notice in consummation of the transfer of the Offered
Stock pursuant to the terms and conditions specified in the Selling
Shareholder’s Notice, and the Selling Shareholder will remit, or will cause to
be remitted, to Investor within seven (7) days after such Closing that
portion of the proceeds of the Transfer to which such Investor is entitled by
reason of such Investor’s participation in such transfer pursuant to the Right
of Co-Sale.


 


5.             Multiple Series, Classes Or Types
Of Stock. If the
Offered Stock consists of more than one series or class or type of Stock, each
Investor has the right to purchase or transfer hereunder, as the case may be,
such Investor’s Pro Rata Share of each such series, class or type of Stock; provided,
however, that as to the Right of Co-Sale, (a) if such Investor does
not hold any of such series, class, or type of Stock, and the Proposed
Transferee is not willing, at the Closing, to purchase some other series, class
or type of Stock from such Investor as part of such Investor’s Pro Rata Share,
or (b) if the Proposed Transferee is unwilling to purchase any Stock from
such Investor at the Closing (each such circumstance being referred to herein
as an “Incomplete Co-Sale”), then such Investor will have the put
right (the “Put Right”)  set forth in Section 6.2  hereof.


 


6.             Put Right; Drag-Along Right.


 


6.1          Refusal to Transfer. Regardless of anything else contained in
this Agreement, any attempt by any Shareholder to Transfer any beneficial or
record ownership of any Stock in violation of any provision of this Agreement
will be void and shall not confer on any transferee or purported transferee any
rights whatsoever. The Company will not (a) transfer on its books any
Stock that has been sold, gifted or otherwise Transferred in violation of this
Agreement, or (b) treat as owner of such Stock, or accord the right to vote
to or pay dividends to any purchaser, donee or other transferee to whom such
Stock may have been so Transferred.


 


6.2          Put Right. If a Selling Shareholder transfers any
Stock in contravention of an Investor’s Right of Co-Sale under this Agreement
(a “Prohibited Transfer”), or if an Incomplete Co-Sale occurs and
the provisions of Section 5  hereof apply, the relevant Investor may
require such Selling Shareholder to purchase from such Investor, for cash or
such other consideration as the Selling Shareholder received in the Prohibited
Transfer or Incomplete Co-Sale, that number of shares of Stock (of the same
class, series or type as transferred in the Prohibited Transfer or Incomplete
Co-Sale, if such Investor then owns Stock of such class, series or type, and
otherwise of Common Stock) having a purchase price equal to the aggregate
purchase price such Investor would have received in the closing of such
Prohibited Transfer or


 


8

















 


Incomplete Co-Sale
if such Investor had exercised and been able to consummate such Investor’s
Right of Co-Sale with respect thereto (the Shareholder’s “Put Right”). An Investor may exercise such Investor’s
Put Right by delivery of written notice to the Selling Shareholder and the
Company (a “Put Notice”)  within ten (10) days after such
Investor becomes aware of the Prohibited Transfer or Incomplete Co-Sale. The
closing of such sale to the Selling Shareholder under such Investor’s Put Right
will occur within seven (7) days after the date of such Shareholder’s Put
Notice.


 


6.3          Drag-Along Right. Regardless of Sections 2, 3, 4  and 5:


 


(a)           By
Shamrock and Founders. In connection with a sale by Shamrock and each Founder
(the “Drag Sellers”)  to a third party that is not an Affiliate
of any of them, of all of their outstanding shares of common stock and
preferred stock of the Company, each other Shareholder will, at the written
request of the Drag Sellers, sell all of their outstanding shares of common
stock and preferred stock of the Company to such third party on substantially
the same terms and conditions as are applicable to the Drag Sellers.


 


(b)           On
Redemption Failure. If the Company fails to pay in full the applicable
redemption price owed by the Company at any redemption of shares of
Series C Preferred Stock pursuant to Section 4 of Article VI of
the Charter, then, at the written request of Shamrock given to the Company (the
“Drag Notice”), the Company and the Shareholders shall
cooperate with Shamrock in commencing an auction sale process of the Company,
shall use their respective best efforts to cause such sale to occur as promptly
as possible, and, so long as the terms and conditions thereof are reasonably
acceptable to Shamrock, shall sell all of their outstanding shares of common
stock and preferred stock of the Company in such sale to the bidder selected
(but without any obligation to select any bidder) in good faith by Shamrock.


 


(c)           Terms of Drag Sale. In any sale pursuant to Section 6.3(a) or 6.3(b) (the
“Drag Sale”), the proceeds from such Drag Sale shall be
allocated among the shareholders of the Company pursuant to Section 3 of
Article VI of the Charter, and each Shareholder shall (i) bear his,
her or its pro rata share (based upon the relative proceeds received by such
Shareholder in the Drag Sale) of the reasonable out-of-pocket costs pursuant to
the Drag Sale to the extent such costs are incurred for the benefit of all such
Shareholders and (ii) severally, not jointly, join on a pro rata basis
(based on the number of shares to be sold by such Shareholder) in any
indemnification or other obligations that are part of the terms and conditions
of the Drag Sale (other than any such obligations that relate specifically to a
particular Shareholder, such as indemnification with respect to representations
and warranties given by such Shareholder regarding such Shareholder’s title to
and ownership of shares, due authorization, enforceability, and no conflicts)
up to the net proceeds paid to such Shareholder in connection with the Drag
Sale.


 


(d)           Structure.
If the
Drag Sale is instead structured as a merger, consolidation, restructuring or
similar transaction, or a sale of all or substantially all of the assets of the
Company, the Shareholders agree to vote (or give a written consent) with respect
to all of their outstanding shares of common stock and preferred stock of the
Company in favor of the Drag Sale as so structured and not to exercise any
dissenters rights of appraisal, or similar rights,


 


9

















 


with respect to the Drag
Sale. In addition, it is understood and agreed that some or all of the
Shareholders may exchange or roll a portion of their stock of the Company for
stock of the acquirer or an Affiliate thereof in the Drag Sale, and such exchange
or roll shall not affect any of the obligations of the Shareholders set forth
in this Section 6.3, including the obligation to vote (or
give a written consent) in favor of the Drag Sale.


 


(e)           No
Restrictions. Regardless of anything else contained herein, the
provisions of Sections 2, 3, 4 and  5  shall not apply to a Drag Sale.


 


7.           Participation Rights.


 


7.1          Grants; Exclusions. Subject to the terms and conditions
specified in this Section 7, the Company hereby grants to each Investor for so
long as such Investor continues to hold at least 500,000 shares (as adjusted
for stock splits, stock dividends, reclassifications, recapitalizations and the
like) of Preferred Stock (including shares of Common Stock issued upon
conversion thereof) and who is theri an “accredited investor” within the
meaning of SEC Rule 501 of Regulation D under the Securities Act of 1933,
as then in effect (“Qualifying
Investor”), a right of first offer (the “Participation Right”)  with respect to any and all future sales
by the Company of any Shares (as hereinafter defined).


 


7.2          Procedures. Each time the Company proposes to offer
any shares of, or securities convertible into or exchangeable or exercisable
for any shares of, any class of its capital stock (the “Shares”), the Company shall first make an offering
of such Shares to each Qualifying Investor in accordance with the following
provisions:


 


(a)           The Company shall deliver a notice (“Notice”)  to each such Investor stating
(i) its bona fide intention to offer such Shares, (ii) the number of
such Shares to be offered, and (iii) the price and terms, if any, upon
which it proposes to offer such Shares.


 


(b)           Within fifteen (15) business days
after receipt of the Notice, each Qualifying Investor may elect to purchase or
obtain, at the price and on the terms specified in the Notice, such Investor’s
Pro Rata Share of the Shares. For purposes of this Section 7, a
Qualifying Investor’s “Pro Rata Share”  will be defined as a fraction, the
numerator of which will be the number of shares of Outstanding Common Stock
then held by such Qualifying Investor, and (ii) the denominator of which
will be the sum of the total number of shares of Outstanding Common Stock then
held by all Qualifying Investors. The Company shall promptly, in writing,
inform each Qualifying Investor that purchases all the shares available to it
(each, a “Fully-Exercising Investor”)  of any other Qualifying Investor’s
failure to do likewise. During the ten (10)-day period commencing after notice
of such information, each Fully-Exercising Investor shall be entitled to obtain
that portion of the Shares for which the non-Fully-Exercising Investor were
entitled to subscribe, but for which the non-Fully-Exercising Investor did not
subscribe, that is equal to the proportion that the number of shares of
Outstanding Common Stock then held by such Fully-Exercising Investor bears to
the total number of shares of Outstanding Common Stock then held by all
Fully-Exercising Investors, with additional overallotments until all of the
Shares has been subscribed for or until no Fully-Exercising Investor desires to
purchase any unsubscribed for Offered Stock.


 


10

















 


(c)           The
Company may, during the 60 day period following the expiration of the period
provided in Section 7.2(b) hereof, offer the remaining
unsubscribed portion of the Shares to any person or persons at a price not less
than, and upon terms no less favorable to the Company than those specified in
the Notice and may, during the 45 day-period thereafter, consummate the closing
of any subscriptions entered into during such 60-day period. The right provided
hereunder shall be deemed to be revived with respect to all other offers and
sales of Shares.


 


(d)           Notwithstanding anything to the
contrary set forth herein, the Investors’ right of first offer in this Section 7  shall be inapplicable to the following:


 


(i)            securities issued or issuable upon
exercise of options, rights or warrants outstanding as of the date of the
Purchase Agreement;


 


(ii)           securities issued or issuable upon
the conversion or exchange of convertible or exchangeable securities which are
outstanding as of the date of the Purchase Agreement;


 


(iii)          securities issued or issuable by
reason of a stock dividend, stock split, split-up or other dividends or
distributions on shares of Preferred Stock or Common Stock;


 


(iv)          shares of Common Stock (or options,
warrants or rights therefor) totaling, in the aggregate, no more than 1% of the
total number of shares of Common Stock then issued and outstanding (including
for purposes of this calculation all shares of Common Stock issuable upon
exercise or conversion of all then outstanding convertible or exercisable
securities), or such higher number as may be approved in writing by the holders
of a majority of the then outstanding shares of Series C Preferred Stock,
to parties that are (i) strategic partners investing in connection with a
commercial relationship with the Company, or (ii) providing the Company
with equipment leases, real property leases, loans, credit lines, guaranties of
indebtedness, cash price reductions or similar transactions, under
arrangements, in each case, approved by the Board of Directors;


 


(v)           any shares of Common Stock (or
options, warrants or rights therefor) granted or issued hereafter to employees,
officers, directors, or consultants of the Company that are providing bona fide
consulting services the Company or any affiliate thereof, pursuant to incentive
agreements, stock purchase or stock option plans, stock bonuses or awards,
warrants, contracts or other arrangements that are approved by the Board of
Directors;


 


(vi)          any shares of Common Stock or
Preferred Stock issued pursuant to the acquisition of another corporation or
entity by the Company by consolidation, merger, purchase of all or
substantially all of the assets, or other reorganization in which the Company
acquires, in a single transaction or series of related transactions, all or
substantially all of the assets of such other corporation or entity or fifty
percent (50%) or more of the voting power of such other corporation or entity
or fifty percent (50%) or more of the equity ownership


 


11

















 


of such other entity; provided,
that such transaction or series of transactions has been approved by the
Company’s Board of Directors;


 


(vii)       any
shares of Series D Preferred issued or issuable pursuant to the Purchase
Agreement, as such agreement is currently in effect;


 


(viii)      any
shares of the Company’s Common Stock issued or issuable by the Company to the
public pursuant to a registration statement filed under the Securities Act; and


 


(ix)         any shares of Common Stock or Preferred
Stock issuable upon exercise and conversion of any of the foregoing.


 


7.3          Waiver of Prior Participation Rights. Each of the Shareholders who is a
signatory to this Agreement hereby agrees to waive any and all Participation
Rights set forth in the Prior Agreement (if any) with respect to the issuance
of the Series D Preferred pursuant to the Purchase Agreement.


 


8.             Restrictive Legends; Stop-transfer
Instructions; Voting Agreement and Board Observer Rights.


 


8.1          Restrictive Legends. Each Shareholder understands and agrees
that the Company will cause the legends set forth below, or legends
substantially equivalent thereto, as may be required by applicable law, to be
placed upon any certificate(s) or other documents or instruments
evidencing ownership of Stock by the Shareholder:


 


THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN VOTING
RESTRICTIONS AND TRANSFER RESTRICTIONS, INCLUDING WITHOUT LIMITATION, A RIGHT
OF FIRST REFUSAL AND/OR RIGHT OF CO-SALE, AS SET FORTH IN A CERTAIN SECOND
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT ENTERED INTO BY THE HOLDER OF THESE
SHARES, THE COMPANY AND CERTAIN SHAREHOLDERS OF THE COMPANY. A COPY OF SUCH
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY. SUCH TRANSFER
RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE SHARES.


 


8.2          Stop Transfer Instructions. Each Shareholder agrees, to ensure
compliance with the restrictions referred to herein, that the Company may issue
appropriate “stop transfer” certificates or instructions and that, if the
Company transfers its own securities, it may make appropriate notations to the
same effect in its records.


 


8.3          Voting Agreement and Board Observer
Rights. Each
Shareholder agrees to hold all shares of Stock registered in such Shareholder’s
name or beneficially owned by such Shareholder, subject to, and to vote the
such shares in accordance with, the provisions of this Section 8.3.


 


12














 


(a)           The Founders agree to use their
reasonable best efforts to identify an individual to serve on the Board of
Directors of the Company who is independent and who is not an employee,
officer, or Affiliate of the Company or any of its Subsidiaries (the “Independent
Director”), and the Shareholders agree to cause, on
or before March 7, 2008, the election of the Independent Director to fill
one of the five remaining non-Series C Director seats on the Company’s
Board of Directors,


 


(b)           In
any election of any Series C Director (as such term is defined in the
Charter), the Shareholders will consult each other and will each vote at any
regular or special meeting of shareholders (or by written consent) all of their
shares of Series C Preferred Stock to elect to the Company’s Board of
Directors the designee approved in writing by Shamrock. The Series C
Directors may be removed from the Board of Directors of the Company without
cause only upon the vote or written consent of Shamrock, and the Shareholders
agree not to seek, vote for or otherwise effect the removal of any
Series C Director without cause of the Series C Director without such
vote or written consent. The Company agrees to use its reasonable best efforts
to ensure that the rights granted hereunder are effective and that Shamrock
enjoys the benefits thereof. Such actions include, without limitation, the use
of the Company’s reasonable best efforts to cause the nomination and election
of the director as provided above. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
performed under this Section by the Company, and the Company will at all
times in good faith assist and take action as appropriate in the carrying out
of all of the provisions of this Section. However, regardless of the foregoing,
the parties agree that until the earlier of (i) March 7, 2008, and
(ii) the date of the election of the Independent Director, only one
Series C Director shall be elected, and the other Series C Director’s
seat shall remain vacant on the Board of Directors of the Company; provided,
that during such period, Shamrock shall have the right to designate one
(1) individual (the “Series C Observer”)  to attend all special and regular
meetings of the Board of Directors of the Company and all committees thereof
(whether in person, by telephonic or otherwise, at the election of the
Series C Observer) in a non-voting observer capacity, in addition to any
Series C Directors designated by Shamrock. The Company shall provide to
the Series C Observer, concurrently with the members of the Board of
Directors of the Company, and in the same manner, notice of such meeting and a
copy of all materials provided to such members. The Company shall be permitted
to exclude the Series C Observer from all discussions of the Board of
Directors of the Company related to sensitive matters that require preservation
of the attorney-client privilege and from discussion of any confidential
information (unless the Series C Observer (or the Series C Observer’s
employer) executes or has executed a reasonable and customary confidentiality
agreement with respect thereto). All reasonable expenses incurred by the
Series C Observer 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.


 


(c)           So
long as the Series D Holders shall hold at least 1,500,000 shares of
Series D Preferred (as adjusted for stock splits, stock dividends,
reclassifications, recapitalizations and the like), the holders of a majority
of the shares of Series D Preferred then held by the Series D Holders
shall have the right to designate one (1) individual (the “Series D
Observer”)  to attend all special and regular meetings
of the Board of Directors of the Company


 


13

















 


and all committees
thereof (whether in person, by telephonic or otherwise, at the election of the
Series D Observer) in a non-voting observer capacity. The Company shall
provide to the Series D Observer, concurrently with the members of the
Board of Directors of the Company, and in the same manner, notice of such
meeting and a copy of all materials provided to such members. The Company shall
be permitted to exclude the Series D Observer from all discussions of the
Board of Directors of the Company related to sensitive matters that require
preservation of the attorney-client privilege and from discussion of any
confidential information (unless the Series D Observer (or the
Series D Observer’s employer) executes or has executed a reasonable and
customary confidentiality agreement with respect thereto). All reasonable
expenses incurred by the Series D Observer 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.


 


8.4          Conversion Matters. If all of the shares of Series C
Preferred are converted into shares of Common Stock as a result of the vote or
written consent of the holders of not less than a majority of the then
outstanding shares of Series C Preferred pursuant to
Section 5(b) of Article VI of the Company’s Charter, then each
holder of Series D Preferred shall concurrently therewith take all such
action as may be required to cause the conversion of all of the then
outstanding shares of Series D Preferred into shares of Common Stock and,
in connection therewith, shall execute and deliver such instruments, give such
written assurances or consents, and do, or cause to be done, all things
otherwise necessary, proper or advisable to cause and make effective such
conversion of all of the shares of Series D Preferred, and the Company
shall take all such action as may be required to cause and make effective such
conversion of all of the shares of Series D Preferred.


 


9.             Termination and Waiver.


 


9.1          Termination. Except as otherwise expressly provided
herein, the Company Right of First Refusal, Series C/D Refusal Right,
Shareholder Refusal Right, Right of Co-Sale, Investors’ participation rights
set forth in Section 7  hereof, and the right to appoint Board of
Directors observers pursuant to Section 8  hereof will terminate upon the earliest
to occur of the following: (a) immediately prior to the closing of the
QIPO (as such term is defined in the Charter); (b) the date on which this
Agreement is terminated by a writing executed by the Company, the Founders, the
holders of a majority of the Stock held by the Series A Holders, the
holders of a majority of the Stock then held by the Series B Holders, the
holders of a majority of the Stock then held by the Series C Holders;
(c) the liquidation or dissolution of the Company, or (d) any
consolidation or merger of the Company by, with or into a third party, in any
case in which the Company’s shareholders of record immediately prior to such
transaction do not hold, immediately after such transaction, at least a
majority of the voting power of the surviving or acquiring entity.


 


9.2          Waiver. Any waiver by a party of any of its rights
hereunder will be effective only if evidenced by a written instrument executed
by such party or its authorized representative or the failure of such party to
respond within the time required by the terms of this Agreement; provided
that (a) the Series C/D Refusal Right, the Right of Co-Sale, and the
Right of Participation may be waived in any particular transaction as to the
Series C Holders only by the holders of a majority of the Stock then held
by the Series C Holders, (b) the Shareholder


 


14

















 


Refusal Right, the Right
of Co-Sale, and the Right of Participation may be waived in any particular
transaction as to the Series A Holders only by the holders of a majority
of the Stock then held by the Series A Holders, (c) the Shareholder
Refusal Right, the Right of Co-Sale, and the Right of Participation may be
waived in any particular transaction as to the Series B Holders only by
the holders of a majority of the Stock then held by the Series B Holders,
(d) the Series C/D Refusal Right, the Right of Co-Sale, and the Right
of Participation may be waived in any particular transaction as to the
Series D Holders either by (i) the holders of a majority of the Stock
then held by the Series D Holders, or (ii) only in circumstances
where such holders also waive such rights as to themselves in such transaction,
by the holders of a majority of the Stock then held by the Series C
Holders, (e) the Shareholder Refusal Right may be waived in any particular
transaction as to the Founders only by the Founders, and (f) the
Series D Board Observer right specified in Section 8.3(c) above may be amended or deleted only by the holders of
a majority of the outstanding shares of Series D Preferred. The Company
and the Shareholders will have the absolute right to exercise or refrain from
exercising any right or rights that each such party may have by reason of this
Agreement, including without limitation the right to purchase or participate in
the sale of Offered Stock, and no waiver of any particular right with respect
to any particular transaction will be deemed a waiver with respect to any other
transaction, nor will it be deemed a waiver of any other right under this
Agreement. Neither the Company nor any Shareholder will incur any liability to
any other party hereto with respect to exercising or refraining from exercising
any such right or rights.


 


10.          Miscellaneous Provisions.


 


10.1        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 10.1  for such party.


 


10.2        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 Stock). 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.


 


10.3        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


 


15

















 


the balance of the
Agreement shall be interpreted as if such provision were so excluded and shall
be enforceable in accordance with its terms.


 


10.4        Amendment.


 


(a)           This Agreement may be amended only by
a written agreement executed by the (i) Company, (ii) holders of a
majority of the Stock then held by the Series A Holders,
(iii) holders of a majority of the Stock then held by the Series B
Holders, (iv) holders of a majority of the Stock then held by the Series C
Holders, and (vi) Founders; 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. Any amendment effected in accordance with
this Section 10.4 will
be binding upon the Company, the Shareholders (whether or not they are
signatories to such amendment) and each of their respective successors and
assigns.


 


(b)           If a Shareholder sells or otherwise
Transfers some or all of such Shareholder’s Stock, then any transferee of such
Shareholder shall be subject to all rights and obligations under this Agreement
as the Shareholder from whom such Stock was acquired would have if such
Shareholder owned the Stock so transferred.


 


(c)           Notwithstanding anything herein to
the contrary, if additional parties purchase shares of Preferred Stock or if
any persons or entities have heretofore acquired or hereafter acquired shares
of the Company’s capital stock or other securities of the Company, then, with
the consent of the Board of Directors of the Company, the Company may add each
such person or entity as a party to this Agreement as a “Shareholder” hereunder
(and update Exhibit A
hereto), without the need for any consent, approval or signature of any
Shareholder when such purchaser has executed one or more counterpart signature
pages to this Agreement.


 


10.5        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 Exhibit A, attached hereto.


 


10.6
         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.


 


10.7          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


 


16

















 


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 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.


 


10.8        Entire
Agreement. This
Agreement, including all Exhibits hereto and all agreements referenced herein,
constitutes the entire agreement of the parties with respect to the specific
subject matter hereof and thereof and supersedes in its entirety the Prior
Agreement and all other agreements or understandings between or among the
parties hereto with respect to the subject matter hereof and thereof. This
Agreement amends and restates and terminates the Prior Agreement in its
entirety.


 


10.9        Calculation;
Binding Effect of Company Notices. All calculations of a Shareholder’s pro rata share
will be made by the Company as of the date of the Company’s notice in which
such pro rata share appears. The pro rata share of a Shareholder as shown on
any notice required hereunder to be delivered by the Company will be binding
upon the parties hereto absent fraud or error.


 


10.10      Continuity of
Other Restrictions. Any
Stock not purchased by the Company or a Shareholder under its respective Right
of First Refusal hereunder will continue to be subject to all other
restrictions, including rights of first refusal, imposed upon such Stock by
law, including any restrictions imposed under the Company’s Charter or Bylaws,
or by agreement.


 


10.11      Spousal
Consent. Each
Shareholder, to the extent such Shareholder 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.


 


10.12
     Specific Performance. The parties agree that each other party
shall not have an adequate remedy if a party breaches or otherwise fails to
comply with the provisions of this Agreement, and that damages will not be
readily ascertainable, and each party expressly agrees that, in the event of
such failure, each other party shall be entitled to seek specific performance
of the breaching party’s obligations under this Agreement hereof, and the
breaching party will not oppose an application seeking such specific
performance based on there being an adequate remedy at law.


 


10.13
     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.


 


17














 


10.14
     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 attorney-in-fact for the
purposes of exercising any rights, receiving notices or taking any action under
this Agreement.


 


10.15
     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.


 


[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 Shareholders Agreement]


 


19

















 


 


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 Shareholders 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 Shareholders 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 Shareholders 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:

  	
  /s/ Michael Lewis

  
	
  [Sign
  Here]

  	
   

  	
  [Sign
  Here]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name: 

  	
  Stephen D. Royer

  	
   

  	
  Name:

  	
  Michael Lewis

  
	
  [Print
  Name]

  	
   

  	
  [Print
  Name]

  
	
   

  	
   

  	
   

  
	
  Title:
  

  	
  Executive Vice President

  	
   

  	
   

  
	
  [Print
  Title]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address: 

  	
  4444 Lakeside Dr.

  	
   

  	
  Address:

  	
   

  
	
  Burbank, CA 91505

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Email Address: 

  	
  sroyer@shamrock.com

  	
   

  	
  Email Address:

  	
   

  
											



 


[Signature
Page To Shareholders Agreement]


 


20














 


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/ Joshua Greer

  
	
  [Sign
  Here]

  	
   

  	
  [Sign
  Here]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Susan Martin Budinger

  	
   

  	
  Name:

  	
  Joshua Greer

  
	
  [Print
  Name]

  	
   

  	
  [Print
  Name]

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Trustee

  	
   

  	
   

  
	
  [Print
  Title]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  5225 E. Paradise Canyan Rd.

  	
   

  	
  Address:

  	
   

  
	
  Paradise Valley, AZ
  85253

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Email Address:

  	
  sbudinger@rodelfoundations.org

  	
   

  	
  E-mail Address:

  	
   

  
													



 


[Signature
Page To Shareholders Agreement]


 


20

















 


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:

  	
  /s/ Richard Huston

  
	
  [Sign
  Here]

  	
   

  	
  [Sign
  Here]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  David E. Richardson

  	
   

  	
  Name:

  	
  R Huston

  
	
  [Print
  Name]

  	
   

  	
  [Print
  Name]

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Manager

  	
   

  	
   

  
	
  [Print
  Title]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  2905 Piedmont Rd NE

  	
   

  	
  Address:

  	
  17 Greville Place

  
	
  Atlanta, GA

  	
   

  	
  London NWGJJE

  
	
   

  	
   

  	
   

  
	
  Email Address:

  	
  [ILLEGIBLE]

  	
   

  	
  Email Address:

  	
  rhuston@blueyonder.co.uk

  
													



 


[Signature
Page To Shareholders Agreement]


 


20

















 


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:

  	
  /s/ David Marrs

  	
   

  	
  By:

  	
  /s/ W.D. Budinger

  
	
  [Sign
  Here]

  	
   

  	
  [Sign
  Here]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  David Marrs

  	
   

  	
  Name:

  	
  W.D. Budinger

  
	
  [Print
  Name]

  	
   

  	
  [Print
  Name]

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Member

  	
   

  	
   

  
	
  [Print
  Title]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  14351 Hwy 82

  	
   

  	
  Address:

  	
  1507 Grinnell St.

  
	
  Carbondale, CO 81623

  	
   

  	
  Key West, FL 33040

  
	
   

  	
   

  	
   

  
	
  Email Address:

  	
  [ILLEGIBLE]

  	
   

  	
  Email Address:

  	
  willbud8@hotmail.com

  
													



 


[Signature
Page To Shareholders Agreement]


 


20














 


EXHIBIT A


 


LIST OF INVESTORS


 


SERIES
A HOLDERS:


 


Perspective
Investments, LLC 


2905
Piedmont Rd. N.E., Suite B 


Atlanta,
GA 30305


 


	
  Copies
  to:

  	
   

  	
  Oceanic
  Bank and Trust Limited 

  Bayside
  Executive Park 

  West
  Bay and Blake Rds 

  Nassau,
  Bahamas 

  Attn:
  Tara Kerr

  



 


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


 

















 


SERIES
B HOLDERS:


 


Perspective
Investments, LLC 


2905
Piedmont Rd. N.E., Suite B 


Atlanta,
GA 30305


 


	
  Copies
  to:

  	
   

  	
  Oceanic
  Bank and Trust Limited 

  Bayside
  Executive Park  

  West
  Bay and Blake Rds  

  Nassau,
  Bahamas  

  Attn:
  Tara Kerr

  



 


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


 

















 


 


SERIES
C HOLDERS:


 


Shamrock
Capital Growth Fund II, L.P.


4444
W. Lakeside Drive


Burbank,
CA 91505


 

















 


SERIES
D HOLDERS:


 


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 Shareholders Agreement (the
“Agreement”), by and among REAL D, a California corporation (the “Company”) and
the Shareholders 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 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]

  



 

















 


EXHIBIT C 


 


PROHIBITED TRANSFEREES


 


1.       Dolby


2.       Kodak


3.       Christie


4.       Barco


5.       Digital Projection Systems


6.       IMAX


7.       Samsung


8.       Thompson/Technicolor


9.       Microsoft


10.     NVIDIA


11.     Sony


12.     Texas Instruments


13.     Phillips


14.     LG


15.     Sharp


16.     Toshiba


17.     JVC


 


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