Form SC 13D RealD Inc. Filed by: Lewis Michael V

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

RealD Inc.

(Name of Issuer)

Common Stock, $0.0001 par value per share

(Title of Class of Securities)

75604L105

(CUSIP Number)

Michael V. Lewis

100 North Crescent Drive, Suite 200

Beverly Hills, CA 90210

310-385-4000

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

Copies to:

 

Matthew F. Herman, Esq

Howard M. Klein, Esq

Freshfields Bruckhaus Deringer US LLP

601 Lexington Avenue

New York, NY 10022

(212) 277-4000

 

November 8, 2015

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☒

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

		SCHEDULE 13D
CUSIP No. 75604L105

1.		NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Michael V. Lewis
2.		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP   (a)    ¨ (b)    ☒
3.		SEC USE ONLY
4.		SOURCE OF FUNDS   OO
5.		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)      ¨
6.		CITIZENSHIP OR PLACE OF ORGANIZATION   United States of America

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7.		SOLE VOTING POWER   6,516,943
		8.		SHARED VOTING POWER   0
		9.		SOLE DISPOSITIVE POWER   6,516,943
		10.		SHARED DISPOSITIVE POWER   0

11.		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,516,943
12.		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
13.		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 12.5%1
14.		TYPE OF REPORTING PERSON (see instructions) IN

 

 

¹ Based upon 51,131,865 shares of common stock of RealD Inc. outstanding on November 2, 2015, as reported in its Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2015, and taking into account an aggregate of 1,177,500 shares of common stock of RealD Inc. that may be acquired by Michael V. Lewis within 60 days of November 8, 2015.

 

CUSIP No. 75604L105

1.		NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) The MVL Trust, dated August 3, 2010
2.		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP   (a)    ¨ (b)    ☒
3.		SEC USE ONLY
4.		SOURCE OF FUNDS (see instructions)   OO
5.		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)      ¨
6.		CITIZENSHIP OR PLACE OF ORGANIZATION   Not applicable

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH		7.		SOLE VOTING POWER   5,288,336
		8.		SHARED VOTING POWER   0
		9.		SOLE DISPOSITIVE POWER   5,288,336
		10.		SHARED DISPOSITIVE POWER   0

11.		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,288,336
12.		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
13.		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.3%2
14.		TYPE OF REPORTING PERSON (see instructions) OO

 

 

² Based upon 51,131,865 shares of common stock of RealD Inc. outstanding on November 2, 2015, as reported in its Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2015.

 

SCHEDULE 13D

 

This Statement on Schedule 13D (this 13D) is being filed on behalf of (i) Michael V. Lewis (Lewis), the Chief Executive Officer and Director and Chairman of the Board of Directors of RealD Inc., a Delaware corporation (the Company), and (ii) the MVL Trust, dated August 3, 2010 (the MVL Trust and together with Lewis, the Reporting Persons), of which Lewis is the sole trustee. This 13D relates to the shares of common stock of the Company, par value $0.0001 per share (the Company Common Stock), beneficially owned by Lewis and the MVL Trust.

This 13D supersedes the Schedule 13G with respect to shares of Company Common Stock previously filed by the Reporting Persons on February 14, 2011 (as amended by: Amendment No. 1, filed on February 14, 2012; Amendment No. 2, filed on February 14, 2013; Amendment No. 3, filed on February 14, 2014; and Amendment No. 4, filed on March 2, 2015).

 

Item 1. Security and Issuer

 

(a)           This 13D relates to shares of Company Common Stock beneficially owned by Lewis and the MVL Trust and is being filed pursuant to Rule 13d-1 under the Securities Exchange Act of 1934, as amended (the Exchange Act).

 

(b)           The Company’s principal executive offices are located at 100 North Crescent Drive, Suite 200, Beverly Hills, CA 90210.

 

Item 2. Identity and Background

 

(a)           This Statement is being filed by: (i) Lewis, a United States citizen; and (ii) the MVL Trust, of which Lewis is the sole trustee.

 

(b)           The principal business address of Lewis is:

 

c/o RealD Inc.

100 North Crescent Drive, Suite 200

Beverly Hills, CA 90210

 

The principal address of the MVL Trust is:

 

603 Ocean Avenue, 2C,

Santa Monica 90402.

 

(c)           Lewis is a Director and the Chairman and Chief Executive Officer of the Company. The Company is an innovator and licensor of stereoscopic (3D) and other visual technologies for use in the cinema and on consumer electronic devices. The principal executive offices of the Company are located at the address set forth in item 1(b), which information is incorporated herein by reference.

 

The MVL Trust was formed on August 3, 2010 for the purpose of estate planning and related matters.

 

(d)           During the last five years, neither Reporting Person has been: (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

Item 3. Source and Amount of Funds or Other Consideration

 

Lewis is the beneficial owner of 6,516,943 shares of Company Common Stock consisting of: (i) 51,107 shares of Company Common Stock owned directly by Lewis; (ii) 5,288,336 shares of Company Common Stock owned by the MVL Trust; and (iii) 1,177,500 shares of Company Common Stock underlying options owned directly by Lewis that are exercisable within 60 days of November 8, 2015 (Options).

 

The Merger (as defined below) is valued at approximately $551 million, including net debt. The Purchaser (as defined below) has obtained equity and debt financing commitments for the transactions contemplated by the Merger Agreement (as defined below), the aggregate proceeds of which, together with the proceeds of the equity rollover investment of the Reporting Persons pursuant to the Rollover Commitment Letter (as defined below) and the available cash of the Company, will be sufficient for Purchaser to pay the aggregate Merger Consideration (as defined below), repay indebtedness under the Company’s existing credit facility and pay all related fees and expenses. An investment fund affiliated with Rizvi (as defined below) has committed to capitalize Purchaser, at or prior to the Effective Time, with an equity contribution in an amount up to $112 million, subject to the terms and conditions set forth in an equity commitment letter, dated as of November 8, 2015. In addition, the Reporting Persons have entered into the Rollover Commitment Letter, and the Purchaser has obtained commitments of $125 million of preferred equity financing and $300 million of debt financing in connection with the Merger as described in the Merger Agreement.

 

Item 4. Purpose of Transaction

 

On November 8, 2015, the Company entered into an Agreement and Plan of Merger (the Merger Agreement) with Rhombus Cinema Holdings, LLC, a Delaware limited liability company (the Purchaser), and Rhombus Merger Sub, Inc., a Delaware corporation (Merger Sub). Purchaser and Merger Sub are affiliates of Rizvi Traverse Management, LLC (Rizvi).

The Merger Agreement provides that, subject to the terms and conditions thereof, Merger Sub will be merged with and into the Company with the Company surviving the merger as a wholly owned subsidiary of the Purchaser (the Merger). At the effective time of the Merger (Effective Time), each share of Company Common Stock issued and outstanding immediately prior to the Effective Time, other than (i) shares of Company Common Stock, including any Rollover Shares (as defined below), owned immediately prior to the effective time by the Company, the Purchaser or any other direct or indirect wholly owned subsidiary of the Company or the Purchaser (all of which shall be canceled and shall cease to exist and no consideration shall be delivered in exchange therefor as of the Effective Time), and (ii) shares of Company Common Stock as to which appraisal rights have been properly exercised and perfected under Delaware law, will be converted into the right to receive $11 in cash, without interest (the Merger Consideration).

 

The purpose of the transactions contemplated by the Merger Agreement is to acquire all of the outstanding shares of Company Common Stock, other than the Rollover Shares. If the Merger is consummated, the Common Stock will no longer be traded on the New York Stock Exchange and will cease to be registered under Section 12 of the Exchange Act, and the Company will become privately held as a wholly owned subsidiary of the Purchaser.

 

Consummation of the Merger is conditioned on adoption of the Merger Agreement by the affirmative vote of the holders of at least a majority of all outstanding shares of Company Common Stock. Consummation of the Merger is also subject to certain other customary conditions, including, among others, the absence of any law, injunction or judgment that prohibits or makes illegal the consummation of the Merger, and the expiration or early termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and required antitrust filings in other jurisdictions. Each party’s obligation to consummate the Merger also is subject to certain additional conditions that include the accuracy of the other party’s representations and warranties contained in the Merger Agreement (subject to certain materiality qualifiers) and the other party’s compliance with its covenants and agreements contained in the Merger Agreement in all material respects.

Concurrently with the execution and delivery of the Merger Agreement, the Reporting Persons entered into:

·

a rollover commitment letter, dated as of November 8, 2015, with the Purchaser (the Rollover Commitment Letter), pursuant to which they have committed, subject to the conditions therein, to transfer, contribute and deliver to the Purchaser immediately prior to the Effective Time an aggregate amount of 5,339,443 shares of Company Common Stock owned by them (the Rollover Shares) in exchange for equity securities of the Purchaser. For the purpose of such transfer and exchange, each share of Company Common Stock owned by the Reporting Persons will be valued at the Merger Consideration.

·

a Voting Agreement with the Purchaser, dated as of November 8, 2015 (the Voting Agreement), pursuant to which, among other things, the Reporting Persons have agreed to vote all of the shares of Company Common Stock beneficially owned by them in favor of the transactions contemplated by the Merger Agreement, unless the Voting Agreement is terminated pursuant to its terms. The Voting Agreement also restricts the Reporting Persons from transferring or agreeing to transfer any Rollover Shares during its term (other than in accordance with the Rollover Commitment Letter) and from engaging in discussions or solicitations with respect to alternate transactions involving the Company, but does not restrict Lewis from taking or refraining from taking any action in his capacity as an officer of the Company or as a member of the Board of Directors of the Company.

 

Rizvi’s offer to acquire the Company and entry into the Merger Agreement was conditioned on Lewis reinvesting his equity interest in the Company into the Purchaser in accordance with the terms of the Rollover Commitment Letter and continuing to serve as the Chairman and Chief Executive Officer of the Company after the Effective Time, as well as entering into the Voting Agreement.

 

The foregoing description of the Merger Agreement, the Rollover Commitment Letter, the Voting Agreement and the transactions contemplated thereby does not purport to be completed and is subject to, and qualified in its entirety by, the full text of: (i) the Merger Agreement, attached as Exhibit 99.1 hereto and a copy of which has been filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on November 9, 2015, which is incorporated herein by reference; (ii) the Rollover Commitment Letter attached as Exhibit 99.2 to this 13D, which is incorporated herein by reference; and (iii) the Voting Agreement attached as Exhibit 99.3 to this 13D, which is incorporated herein by reference.

 

Except as set forth herein, no Reporting Person has any present plan or proposal with respect to any action that would result in the occurrence of any of the matters enumerated under Item 4 of Schedule 13D. The Reporting Persons reserve the right to formulate specific plans or proposals with respect to, or to change each of its intentions regarding, any or all of the foregoing.

 

Item 5. Interest in Securities of the Issuer

 

(a)           As of November 12, 2015, and after giving effect to the Options, Lewis may be deemed to beneficially own 6,516,943 shares of Company Common Stock, representing 12.5% of the outstanding shares of Company Common Stock, based on 51,131,865 shares of Company Common Stock outstanding on November 2, 2015, as represented by the Company in its Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2015 and filed with the SEC on November 9, 2015 and taking into account an aggregate of 1,177,500 shares of Company Common Stock that may be acquired by Lewis within 60 days of November 8, 2015.

 

As of November 12, 2015, the MVL Trust may be deemed to beneficially own 5,288,336 shares of Company Common Stock, representing 10.3% of the outstanding shares of Company Common Stock, based on 51,131,865 shares of Company Common Stock outstanding on November 2, 2015, as represented by the Company in its Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2015 and filed with the SEC on November 9, 2015.

 

(b)           By virtue of the relationships described in item 2(a) of this 13D, Lewis has sole voting and dispositive power with respect to the shares of Company Common Stock owned by him and by the MVL Trust.

 

(c)           Except as described herein, neither Reporting Person, has effected any transactions in the shares of Company Common Stock in the past 60 days.

 

(d)           No person (other than the Reporting Persons) has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Company Common Stock beneficially owned by the Reporting Persons.

 

(e)           Not applicable.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

 

The information regarding the Merger Agreement, the Rollover Commitment Letter and the Voting Agreement set forth in Item 4 above is incorporated herein by reference. Except as described herein and incorporated herein by reference to Item 4 above, there are at present no contracts, arrangements, understandings or relationships (legal or otherwise), between any Reporting Person and any other person with respect to any securities of the Company (including securities pledged or otherwise subject to a contingency the occurrence of which would give another person voting power or investment power over such securities other than standard default and similar provisions contained in loan agreements), including, but not limited to, transfer or voting of any of the shares of Company Common Stock, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

 

Item 7. Material to be Filed as Exhibits.

    

Exhibit No.		Name
99.1*			Agreement and Plan of Merger, dated as of November 8, 2015, by and among the Company, the Purchaser  and Merger Sub (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on November 9, 2015).
99.2			Rollover Commitment Letter, dated as of November 8, 2015, between Purchaser, Lewis and the MVL Trust.
99.3			Voting Agreement, dated as of November 8, 2015, between Purchaser, Lewis and the MVL Trust.
99.4			Joint Filing Agreement, dated as of November 12, 2015 by and between Lewis and the MVL Trust.

 

 

*Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company has undertaken to furnish supplementally copies of any of the omitted schedules and exhibits upon request by the SEC.

 

 

SIGNATURE

After reasonable inquiry and to the best of each of the undersigned’s knowledge and belief, such person hereby certifies that the information set forth in this statement is true, complete and correct.

Dated: November 12, 2015
	By:	/s/ Michael V. Lewis
		Michael V. Lewis
	The MVL Trust, dated August 3, 2010
	By:	/s/ Michael V. Lewis
		Name: Michael V. Lewis
		Title: Trustee

Exhibit 99.2

 

Execution Copy

 

November 8, 2015

 

Rhombus Cinema Holdings, LLC

c/o Rizvi Traverse Management LLC
9465 Wilshire Blvd. Suite 840

Beverly Hills, CA 90212

 

 

Re: Rollover Investment Commitment

 

 

Ladies and Gentlemen:

 

This letter agreement (this “Agreement”) sets forth the commitment of each of Michael V. Lewis and the MVL Trust dated August 3, 2010 (collectively, the “Rollover Investors”), subject to the terms and conditions contained herein, to transfer, contribute and deliver the number of shares of Company Common Stock described in Section 1 below to Rhombus Cinema Holdings, LLC, a Delaware limited liability company (“Purchaser”) in exchange for equity securities of Purchaser described in Section 1 below. It is contemplated that, pursuant to an Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), dated as of the date hereof, by and among RealD Inc., a Delaware corporation (the “Company”), Purchaser and Rhombus Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Purchaser (“Merger Sub”), Merger Sub will be merged with and into the Company (the “Merger”), with the Company being the surviving entity of such Merger and a wholly-owned subsidiary of Purchaser. Each capitalized term used and not defined herein shall have the meaning ascribed thereto in the Merger Agreement.

 

1.               Commitment. Each Rollover Investor hereby commits (its “Commitment”), subject to the terms and conditions set forth herein, to transfer, contribute and deliver to Purchaser immediately prior to the Effective Time the number of shares of Company Common Stock set forth opposite such Rollover Investor’s name on Schedule A hereto (its “Rollover Investment”) in exchange for a membership interest in Purchaser represented by a number of common units equal to (A) the number of common units of Purchaser to be issued to the Guarantor in exchange for the equity contribution to Purchaser to be made by the Guarantor in connection with the Merger multiplied by (B) a fraction, the numerator of which is the value of such Rollover Investor’s Rollover Investment (assuming that the value of each share of Company Common Stock is equal to the Merger Consideration) and the denominator of which is the equity contribution to Purchaser to be made by the Guarantor in connection with the Merger (such membership interest (represented in the form of common units) in Purchaser to be issued to such Rollover Investor in exchange for the Rollover Investment, its “Purchaser Equity Securities”); provided that each Rollover Investor shall not, under any circumstances, be obligated to transfer, contribute or deliver to Purchaser any amounts or consideration other than its respective Rollover Investment, or to otherwise provide funds to Purchaser or any of its

Affiliates in connection with the transactions contemplated by the Merger Agreement. In connection with its Rollover Investment, each Rollover Investor hereby commits to execute and deliver at the Closing an Amended and Restated Limited Liability Company Agreement (or limited partnership equivalent(s)) for Purchaser containing the terms and conditions set forth on Schedule B hereto and such other customary terms and conditions reasonably agreed between the Guarantor and such Rollover Investor, and such other ancillary agreements in forms and substance reasonably satisfactory to such Rollover Investor, as Purchaser or the Guarantor may reasonably request. Notwithstanding the foregoing, prior to the Effective Time, the Rollover Investors may elect to reduce their aggregate Rollover Investment by an amount equal to $6 million (calculated net of applicable withholding taxes and other applicable deductions), subject to the terms set forth in the first paragraph under “Approximate Equity Capitalization at the Closing” and clause (vi) of the first paragraph under “Transfer Restrictions” on Schedule B hereto. The parties hereto intend for the Rollover Investment to be made on a tax-free basis under the Internal Revenue Code of 1986, as amended, and will treat the Rollover Investment as such for all tax purposes unless otherwise required by applicable law. At the Closing, Purchaser shall cause the Company to, and Michael V. Lewis shall, execute and deliver an employment agreement in substantially the form set forth on Schedule C hereto. For the avoidance of doubt, the parties agree and acknowledge that in connection with the Rollover Investment, each share of Company Common Stock forming the Rollover Investment shall be valued at the Merger Consideration.

2.               Conditions. The obligation of each Rollover Investor to fund its respective Commitment shall be subject to (i) the execution and delivery of the Merger Agreement by the parties thereto, (ii) the satisfaction or waiver of each of the conditions to Purchaser’s obligations to effect the Closing set forth in Article VI of the Merger Agreement (other than any conditions that by their nature are to be satisfied at the Closing, but subject to the prior or substantially concurrent satisfaction or waiver of such conditions), and (iii) the substantially simultaneous (A) funding of the Sponsor Equity Financing contemplated by, and in accordance with the terms of, the Sponsor Commitment Letter and (B) consummation of the Merger in accordance with the terms of the Merger Agreement, in each case, without waiver by Purchaser of any condition thereto, or amendment of any term thereof, not consented to in writing by the Rollover Investors (such consent not to be unreasonably withheld, delayed or conditioned) other than any such waiver or amendment that would not reasonably be expected to be adverse (in any respect) to the interests of the Rollover Investors.

3.               Parties in Interest; Third Party Beneficiaries. The parties hereto hereby agree that their respective agreements and obligations set forth herein are solely for the benefit of the other party hereto and its respective successors and permitted assigns, in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any Person other than the Guarantor (on behalf of the Purchaser) and the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Purchaser to enforce, the obligations set forth herein; provided, however, that the Company has relied on this Agreement and, accordingly, the Company is an express third-party beneficiary hereof and shall have the enforcement rights described in Section 4 hereof.

4.               Enforceability. This Agreement may be enforced only by (i) Purchaser, (ii) the Guarantor (on behalf of the Purchaser), (iii) each Rollover Investor or (iv) the Company, pursuant to its right to seek specific performance of Purchaser’s obligation to enforce each Rollover Investor’s obligation to fund its respective Commitment in accordance with the terms hereof, pursuant to, and subject to, solely in accordance with, and to the extent permitted by, the terms and conditions of Section 8.08 of the Merger Agreement and the terms and conditions set forth herein (provided that the Company is also pursuing such right to enforce the Sponsor Commitment Letter if the Guarantor is in breach of its obligation to fund the Sponsor Equity Financing thereunder). Purchaser’s creditors shall have no right to enforce this Agreement or to cause Purchaser to enforce this Agreement.

5.               No Modification; Entire Agreement. This Agreement may not be amended or otherwise modified without the prior written consent of Purchaser, each Rollover Investor and the Company. This Agreement constitutes the sole agreement, and supersedes all prior agreements, understandings and statements, written or oral, between the Rollover Investors or any of their Affiliates (provided, that the Company shall not be deemed to be an Affiliate of any Rollover Investor), on the one hand, and Purchaser or any of its Affiliates, on the other, with respect to the Commitment of each Rollover Investor to contribute its respective Rollover Investment in exchange for membership interests in the Purchaser and the other transactions contemplated hereby.

6.               Governing Law; Jurisdiction; Venue; Waiver of Jury Trial.

(a)             This Agreement (and any claim or controversy arising out of or relating to this letter agreement) shall be governed by, and construed in accordance with, the laws of the State of Delaware, applicable to contracts executed in and to be performed entirely within that State, regardless of the laws that might otherwise govern under any applicable conflict of laws principles.

(b)            All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in the Chancery Court of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Chancery Court of the State of Delaware declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware) and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts in any such action or proceeding and irrevocably waive, and agree not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (i) any claim that such party is not personally subject to the jurisdiction of the aforementioned courts, (ii) any claim that it or its property is exempt or immune from jurisdiction of the aforementioned courts or from any legal process commenced in such courts, and (iii) any claim that the action, suit or proceeding in such court is brought in an inconvenient forum, the venue of such action, suit or proceeding is improper, or this Agreement, or the subject matter hereof, may not be enforced in or by such court. The consents to jurisdiction and venue set forth in this Section 6(b) shall not constitute general consents to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any person other than the parties hereto. Each party hereto agrees that service of process upon

such party in any action or proceeding arising out of or relating to this Agreement shall be effective if notice is given by overnight courier at the address set forth in Section 8.10 of the Merger Agreement, in the case of Purchaser, and at the address set forth on Schedule A, in the case of the Rollover Investor.

(c)             EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6(c).

7.               Counterparts. This Agreement may be executed in counterparts (including by facsimile or by .pdf delivered via email), each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.

8.               Confidentiality; Cooperation. Except as may be required by applicable Law (including any filing by a Rollover Investor with the Securities Exchange Commission (the “SEC”) as required by applicable securities laws (including the Exchange Act)), court process or the rules and regulations of any national securities exchange or national securities quotation system (and then only after as much advance notice and consultation as is feasible), and except as may be permitted by Section 5.05 of the Merger Agreement, each Rollover Investor shall not, and shall instruct its Representatives not to, make any press release, public announcement or other communication with respect to the business or affairs of the Company, Purchaser or Merger Sub, including this Agreement and the Merger Agreement and the transactions contemplated hereby and thereby, without the prior written consent of Purchaser. Each Rollover Investor hereby (i) consents to and authorizes the publication and disclosure by Purchaser of such Rollover Investor’s identity and holding of shares of Company Common Stock and any other equity securities of the Company which are beneficially owned by any Rollover Investor or any of its Affiliates as of the date hereof or acquired after the date hereof and prior to the termination of this Agreement, and (following prior review by the Rollover Investor, and with the Rollover Investor’s reasonable comments taken into consideration by the Purchaser) the nature of such Rollover Investor’s commitments, arrangements and understandings under this Agreement and any other information that Purchaser reasonably determines to be necessary or desirable in any press release or any other disclosure document in connection with the Merger or any other transactions contemplated by the Merger Agreement and (ii) agrees as promptly as

practicable to notify Purchaser of any required corrections with respect to any written information supplied by such Rollover Investor specifically for use in any such disclosure document. Without limitation of the foregoing, each Rollover Investor shall provide to Purchaser all information concerning such Rollover Investor and cooperation as may be reasonably requested by Purchaser in connection with the Company’s preparation and filing of the Proxy Statement and any other filings required under applicable securities Laws and the resolution of any comments thereto received from the SEC. Each Rollover Investor shall promptly correct any information provided by it or him for use in the Proxy Statement and any other filings required under applicable securities Laws if and to the extent such information shall have become false or misleading in any material respect.

9.               Termination. The obligation of each Rollover Investor under or in connection with this Agreement will terminate automatically and immediately upon the earliest to occur of (a) the Closing (at which time all such obligations shall be discharged), (b) the valid termination of the Merger Agreement pursuant to Article VII thereof (unless the Company has previously commenced an action described in Section 4 hereof, in which case this Agreement shall terminate upon the final, non-appealable resolution of such action and satisfaction by each Rollover Investor of any obligations finally determined or agreed to be owed by such Rollover Investor, consistent with the terms hereof), (c) the termination (for any reason) of the Guarantor’s obligation to fund the Sponsor Equity Financing pursuant to the Sponsor Commitment Letter and (d) the Company or any of its Affiliates, or any Person claiming by, through or for the benefit of the Company, accepting payment of the Purchaser Termination Fee pursuant to the Merger Agreement or accepting payment thereof from the Guarantor under the Guaranty in respect of such obligation; provided that no such termination shall relieve any Rollover Investor from any liability to Purchaser or its Affiliates for any material breach of this Agreement by such Rollover Investor prior to such termination, and Purchaser or its Affiliates shall be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such material breach (it being acknowledged and agreed that, for the avoidance of doubt, the failure of the Rollover Investors to fund their respective Commitments if and when due and payable pursuant to this Agreement shall constitute a material breach of this Agreement).

10.            No Assignment. The Commitment evidenced by this Agreement shall not be assignable, in whole or in part, by Purchaser without the Rollover Investors’ prior written consent, and the granting of such consent in a given instance shall be solely in the discretion of the Rollover Investors and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment; provided, that the rights, interests and obligations of Purchaser hereunder (including the Commitment) may be assigned by Purchaser to any Person (i) to whom the Merger Agreement is validly assigned in accordance with the terms thereof, (ii) to whom the right to receive the Sponsor Equity Financing is validly assigned in accordance with the terms of the Sponsor Commitment Letter and (iii) that is an entity formed for purposes of the transactions contemplated by the Merger Agreement and that does not have any assets, liabilities or operations (other than in connection with the transactions contemplated by the Merger Agreement or those incidental to its formation). No transfer of any rights or obligations hereunder by any Rollover Investor shall be permitted without the prior written consent of

Purchaser and the Company. Any purported assignment of this Agreement or the Commitment in contravention of this Section 10 shall be void.

11.            Representations and Warranties. Each Rollover Investor hereby represents and warrants to Purchaser that (a) if the Rollover Investor is not a natural person, it has all limited partnership, trust or other organizational power and authority to execute, deliver and perform this Agreement; (b) if the Rollover Investor is not a natural person, the execution, delivery and performance of this Agreement by it has been duly and validly authorized and approved by all necessary limited partnership, trust or other organizational action by it; (c) this Agreement has been duly and validly executed and delivered by it or him and constitutes a valid and legally binding obligation of it or him, enforceable against it or him in accordance with the terms of this Agreement, subject to the effect of any applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity; (d) it or he is the record and beneficial owner of the shares of Company Common Stock identified with respect to it or him (as set forth on Schedule A), free and clear of any Lien (other than those arising under applicable securities laws and those arising under this Agreement and under the Voting Agreement), and has full and unrestricted power to dispose of all of such shares of Company Common Stock as contemplated by this Agreement without the consent or approval of, or any other action on the part of, any other Person; (e) other than any filing by it or him with the SEC as required by Sections 13(d) or 16(a) of the Exchange Act (and other than the providing of any information required by it or him in connection with the matters described in Section 3.03(d) of the Merger Agreement), none of the execution and delivery of this Agreement by it or him, the consummation by it or him of the transactions contemplated hereby or compliance by it or him with any of the provisions hereof: (i) requires any consent or other permit of, or filing by it or him with or notification to, any Governmental Authority or any other Person by it or him, (ii) results in a violation or breach of, or constitutes (with or without notice or lapse of time or both) a default (or gives rise to any third party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any organizational document or contract to which it or he is a party or by which it or he or any of the shares of Company Common Stock identified with respect to it or him (as set forth on Schedule A) may be bound or affected, (iii) violates any Law or Order applicable to it or him or the shares of Company Common Stock identified with respect to it or him (as set forth on Schedule A), or (iv) results in a Lien upon any of the shares of Company Common Stock identified with respect to it or him (as set forth on Schedule A) (other than any Lien arising under this Agreement), other than, in each case in this clause (e), any matter which would not adversely affect in any material respect the ability of such Rollover Investor to perform his or its obligations hereunder or consummate the transactions contemplated hereby; (f) it or he has not entered into any stock transfer, disposition, commitment or other agreement or arrangement that is inconsistent with this Agreement (including, without limitation, its Commitment described herein); (g) it or he had access to all of the information required in order to evaluate an investment in Purchaser; (h) it or he is an “accredited investor” within the meaning of Rule 501 under Regulation D promulgated by the SEC under the Securities Act of 1933, as amended (the “1933 Act”); (i) it or he is acquiring the Purchaser Equity Securities for its or his own account (or for the account of the trust or plan or other entity referred to in the signature block at the end of this Agreement), for investment and not with a view to any resale or distribution thereof in violation of applicable securities laws; (j) it or he understands that the

Purchaser Equity Securities have not been registered under the 1933 Act or any United States state securities laws and may not be assigned, sold or otherwise transferred without registration under the 1933 Act or any relevant state securities laws or exemption therefrom, and that as of the date hereof Purchaser has no obligation or intention to register the Purchaser Equity Securities under the 1933 Act or United States state securities laws; and (k) that it or he may therefore be required to bear the economic risk of holding the Purchaser Equity Securities for an indefinite period of time.

12.            Severability. If any term, condition or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term, condition or other provision hereof is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated by this Agreement are fulfilled to the extent possible.

13.            Power of Attorney. In order to effect the obligation of each Rollover Investor to make its Rollover Investment on the terms and subject to the conditions set forth in this Agreement, each Rollover Investor hereby grants a power of attorney to the Secretary of Purchaser, with full power of substitution, with respect to the matters set forth herein, and hereby authorizes the Secretary of Purchaser to execute all appropriate documents and instruments to effect such Rollover Investment by such Rollover Investor as shall be required under the terms of this Agreement, if such Rollover Investor fails to execute such documents and instruments substantially simultaneously upon the satisfaction of the conditions set forth in Section 2 above. The power of attorney granted pursuant to the immediately preceding sentence is given in consideration of the agreements and covenants of the parties hereto in connection with this Agreement and the transactions contemplated by the Merger Agreement and, as such, is coupled with an interest and shall be irrevocable until the valid termination of this Agreement.

14.            Specific Performance. The parties hereto agree that irreparable damage, for which monetary damages (even if available) would not be an adequate remedy, would occur in the event that the parties hereto do not perform any provision of this Agreement in accordance with its specified terms or otherwise breach such provisions. Accordingly, the parties hereto acknowledge and agree that the parties hereto and the Guarantor (on behalf of the Purchaser) shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which they are entitled in Law or in equity. Each of the parties hereto agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity. Any party hereto or the Guarantor (on behalf of the Purchaser) seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with such order or injunction.

15.            Spousal Consent. Each Rollover Investor’s spouse, if any, shall be required to execute the form of spousal consent set forth on Exhibit A to evidence such spouse’s agreement and consent to be bound by the terms and conditions of this Agreement as to such spouse’s interest, whether as community property or otherwise, if any, in such Rollover Investor’s Rollover Investment and the Purchaser Equity Securities issued to such Rollover Investor.

 

[remainder of the page intentionally left blank – signature page follows]

 

 

 

Sincerely,
By:	/s/ Michael V. Lewis
	Michael V. Lewis
The MVL Trust dated August 3, 2010
By:	/s/ Michael V. Lewis
	Name: Michael V. Lewis
	Title: Trustee

 

 

 

 

Agreed to and accepted:
RHOMBUS CINEMA HOLDINGS, LLC
By:	/s/ Ben Kohn
	Name: Ben Kohn
	Title: Authorized Signatory

Exhibit 99.3

Execution Copy

VOTING AGREEMENT

This VOTING AGREEMENT (this “Agreement”), dated as of November 8, 2015, is entered into by and among Michael V. Lewis, an individual, and the MVL Trust dated August 3, 2010 (collectively, the “Stockholders”), and Rhombus Cinema Holdings, LLC, a Delaware limited liability company (“Purchaser”).

WHEREAS, contemporaneously with the execution of this Agreement, Purchaser, Rhombus Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and RealD Inc., a Delaware corporation (the “Company”), are entering into an Agreement and Plan of Merger, dated as of the date hereof (as may be modified or amended from time to time, the “Merger Agreement”), providing, among other things, for the merger of Merger Sub with and into the Company (the “Merger”); and

WHEREAS, as a condition of and inducement to Purchaser’s and Merger Sub’s willingness to enter into the Merger Agreement, Purchaser and Merger Sub have required that the Stockholders enter into this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and in the Merger Agreement, and intending to be legally bound hereby, the parties hereto agree as follows:

1.     Certain Definitions. For the purposes of this Agreement, capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to them in this Section 1.

“Additional Owned Shares” means all shares of Company Common Stock and any other equity securities of the Company which are beneficially owned by any Stockholder or any of its Affiliates and are acquired after the date hereof and prior to the termination of this Agreement.

“Affiliate” has the meaning set forth in the Merger Agreement; provided, however, that for the purposes of this Agreement (i) the Company shall be deemed not to be an Affiliate of any Stockholder and (ii) for the avoidance of doubt, no Stockholder shall be deemed an Affiliate of any other holder of Company Common Stock or equity interests of the Company solely by virtue of deemed common control of the Company.

“beneficial ownership” (and related terms such as “beneficially owned” or “beneficial owner”) has the meaning set forth in Rule 13d-3 under the Exchange Act.

“Business Day” has the meaning set forth in the Merger Agreement.

“Company Common Stock” has the meaning set forth in the Merger Agreement.

“Covered Shares” means the Owned Shares and Additional Owned Shares.

“Effective Time” has the meaning set forth in the Merger Agreement.

“Exchange Act” has the meaning set forth in the Merger Agreement.

“DGCL” means the Delaware General Corporation Law, as amended.

“Disclosed Owned Shares” has the meaning assigned thereto in Section 5(a) hereof.

“Governmental Authority” has the meaning set forth in the Merger Agreement.

“HSR Act” has the meaning set forth in the Merger Agreement.

“Improved Proposal” has the meaning assigned thereto in Section 2(a) hereof.

“Liens” has the meaning assigned thereto in Section 5(a) hereof.

“Owned Shares” means all shares of Company Common Stock and any other equity securities of the Company which are beneficially owned by any Stockholder or any of its Affiliates as of the date hereof.

“person” means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization or other entity or group (as defined in Section 13(d) of the Exchange Act).

“Representatives” has the meaning assigned thereto in Section 3(b) hereof.

“Rollover Commitment Letter” has the meaning set forth in the Merger Agreement.

“Stockholders Meeting” has the meaning assigned thereto in Section 2 hereof.

“Subsidiary” has the meaning set forth in the Merger Agreement.

“Survival Period” has the meaning assigned thereto in Section 5.A hereof.

“Takeover Proposal” has the meaning set forth in the Merger Agreement.

“Term” has the meaning assigned thereto in Section 6 hereof.

“Transfer” means, with respect to a security, the transfer, pledge, hypothecation, encumbrance, assignment or other disposition (whether by sale, merger, consolidation, liquidation, dissolution, dividend, distribution or otherwise) of such security or the beneficial ownership thereof, the offer to make such a transfer or other disposition, and each option, agreement, arrangement or understanding, whether or not in writing, to effect any of the foregoing. As a verb, “Transfer” shall have a correlative meaning.

2.     Stockholder Vote. At any meeting of the stockholders of the Company, however called, or at any adjournment or postponement thereof, or in any other circumstance in which the vote, consent or other approval of the stockholders of the Company is sought, in any case, during the Term (each, a “Stockholders Meeting”), each Stockholder shall, and shall cause

any other holder of record of Covered Shares to, (i) appear at each such meeting or otherwise cause all Covered Shares to be counted as present thereat for purposes of calculating a quorum and (ii) vote (or cause to be voted), or execute and deliver a written consent (or cause a written consent to be executed and delivered) covering, all Covered Shares:

(a)   in favor of the adoption of the Merger Agreement and the approval of the terms thereof, the Merger and each of the other actions contemplated by the Merger Agreement;

(b)  in favor of any other transaction (including its adoption and approval, where applicable) pursuant to which Purchaser or any of its Affiliates proposes to acquire the Company, whether by tender offer, merger or otherwise, (i) in which stockholders of the Company would receive consideration per share of Company Common Stock having a value equal to or greater than the consideration to be received by such stockholders in the Merger and (ii) is of the kind contemplated by clause (2) of the proviso to Section 5.02(d) or clause (ii) of the proviso to Section 5.02(e) of the Merger Agreement (an “Improved Proposal”);

(c)   in favor of any adjournment or postponement recommended by the Company with respect to any stockholder meeting with respect to the Merger Agreement and the Merger or any Improved Proposal;

(d)  against any Takeover Proposal or any proposal relating to a Takeover Proposal (other than any Improved Proposal); and

(e)   against any proposal, action or agreement that would (1) impede, delay, interfere with, prevent or nullify any provision of this Agreement, the Merger Agreement or the Merger or would otherwise adversely affect the timely consummation of the Merger, (2) result in a breach in any respect of any covenant, representation, warranty or any other obligation or agreement of the Company under the Merger Agreement or (3) except as expressly contemplated by the Merger Agreement, change in any manner the dividend policy or capitalization of, including the voting rights of any class of capital stock of, the Company, in each cash other than any Improved Proposal.

The Stockholders shall not commit or agree to take any action inconsistent with the foregoing, and shall cause any other record holder of Covered Shares not to commit or agree to take any action inconsistent with the foregoing.

3.     No Disposition or Solicitation.

(a)   No Disposition or Adverse Act. Each Stockholder hereby covenants and agrees that, except as contemplated by this Agreement, the Rollover Commitment Letter and the Merger Agreement, such Stockholder shall not, throughout the Term: (i) offer to Transfer, Transfer or consent to any Transfer of any or all of the Covered Shares or any interest therein without the prior written consent of Purchaser, (ii) tender any or all of the Covered Shares into any exchange or tender offer commenced by a person other than Purchaser, Merger Sub or any Affiliate of Purchaser or Merger Sub, (iii) enter into any contract, option or other agreement, arrangement or understanding (including any profit sharing arrangement) with respect to any Transfer of any or all Covered Shares or any interest therein, (iv) grant or permit to be granted any proxy, power-of-attorney or other authorization or consent in or with respect to any or all of the

Covered Shares, (v) deposit or permit to be deposited any or all of the Covered Shares into a voting trust, (vi) enter into a voting agreement or arrangement with respect to any or all of the Covered Shares or permit any record holder of Covered Shares to enter into any voting agreement or arrangement with respect to any or all of the Covered Shares, or (vii) take or permit to be taken any other action that would make any representation or warranty of such Stockholder contained herein untrue or incorrect in any material respect or in any way restrict, limit or interfere with the performance of such Stockholder’s obligations hereunder or the transactions contemplated hereby or by the Merger Agreement. Any attempted Transfer of Covered Shares or any interest therein in violation of this Section 3(a) shall be null and void.

(b)  Non-Solicitation. Subject to Section 7 hereof, during the Term, each Stockholder hereby agrees that such Stockholder shall not, and shall cause its Affiliates, representatives and agents (including its investment bankers, attorneys and accountants) (collectively, its “Representatives”) not to, directly or indirectly, (i) initiate, solicit, cause, or knowingly facilitate or encourage any inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Takeover Proposal, or (ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any non-public information, or afford any other person with access to the business, employees, officers, contracts, properties, assets, or books and records of the Company or its Subsidiaries, in each case in connection with, or that could reasonably be expected to lead to, a Takeover Proposal. Each Stockholder shall immediately cease any inquiries, solicitation, encouragement, discussions or negotiations with any persons with respect to a Takeover Proposal (or that could reasonably be expected to lead to a Takeover Proposal) that existed on or prior to the date of this Agreement. Each Stockholder shall promptly (and in any event within twenty-four (24) hours) notify Purchaser in the event that such Stockholder or any of its Affiliates or Representatives receives a Takeover Proposal and shall provide Purchaser with a copy of such Takeover Proposal (if in writing) and disclose to Purchaser the material terms and conditions of any such Takeover Proposal, the identity of the person or group of persons making such Takeover Proposal and any arrangements with such Stockholder or its Affiliates contemplated thereby, and such Stockholder shall keep Purchaser reasonably informed on a prompt basis (and in any event within twenty-four (24) hours) of the status and terms of any such discussions or negotiations and any material developments with respect to any such Takeover Proposal (including any amendments, modifications or other changes thereto); provided that compliance by the Company with its obligations set out in Section 5.02(c) of the Merger Agreement in respect of such Takeover Proposal shall satisfy each Stockholder’s obligations in respect of this final sentence of this Section 3(b) of this Agreement.

4.     Additional Agreements.

(a)   Certain Events. In the event of any stock split, stock dividend, merger, reorganization, recapitalization or other change in the capital structure of the Company affecting the Covered Shares or the acquisition of Additional Owned Shares or other securities or rights of the Company by a Stockholder or any of its Affiliates, (i) the type and number of Covered Shares shall be adjusted appropriately and (ii) this Agreement and the obligations hereunder shall automatically attach to any additional Covered Shares or other securities or rights of the Company issued to or acquired by such Stockholder or any of its Affiliates.

(b)  [Reserved].

(c)   Waiver of Appraisal and Dissenters’ Rights and Actions. Each Stockholder hereby (i) waives and agrees not to demand, assert or exercise any rights of appraisal or rights to dissent from the Merger that such Stockholder may have under Section 262 of the DGCL or otherwise and (ii) agrees not to commence or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Purchaser, Merger Sub, the Company or any of their respective successors or directors, officers or agents relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the Merger, including any claim (x) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (y) alleging a breach of any fiduciary duty of the Board of Directors of the Company or any officer of the Company, or any claim alleging aiding and abetting breach of fiduciary duty on the part of any other person in connection with the evaluation, negotiation, entry into or performance of the Merger Agreement or the transactions contemplated thereby; provided that nothing in this clause (ii) shall limit or prohibit (I) any Stockholder in any way in connection with (A) any Action or dispute (other than class actions) arising out of or relating to this Agreement, the Merger Agreement, the Rollover Commitment Letter or any other instrument entered into by a Stockholder in connection herewith or therewith, or any action filed or initiated against a Stockholder which includes claims or allegations of fraud or intentional misconduct by a Stockholder, or (B) the defense of any Action contemplated by this clause (ii) or (II) any rights of any Stockholder for indemnification, contribution or other reimbursement.

(d)  Communications. Except as may be required by applicable Law (including any filing by a Stockholder with the Securities Exchange Commission (the “SEC”) as required by applicable securities laws (including the Exchange Act)), court process or the rules and regulations of any national securities exchange or national securities quotation system (and then only after as much advance notice and consultation as is feasible), and except as may be permitted by Section 5.05 of the Merger Agreement, each Stockholder shall not, and shall instruct its Representatives not to, make any press release, public announcement or other communication with respect to the business or affairs of the Company, Purchaser or Merger Sub, including this Agreement and the Merger Agreement and the transactions contemplated hereby and thereby, without the prior written consent of Purchaser. Each Stockholder hereby (i) consents to and authorizes the publication and disclosure by Purchaser of such Stockholder’s identity and holding of Covered Shares, and (following prior review by the Stockholders, and with the Stockholders’ reasonable comments taken into consideration by the Purchaser) the nature of such Stockholder’s commitments, arrangements and understandings under this Agreement and any other information that Purchaser reasonably determines to be necessary or desirable in any press release or any other disclosure document in connection with the Merger or any other transactions contemplated by the Merger Agreement and (ii) agrees as promptly as practicable to notify Purchaser of any required corrections with respect to any written information supplied by such Stockholder specifically for use in any such disclosure document.

(e)   Additional Owned Shares. Each Stockholder hereby agrees to notify Purchaser promptly in writing of the number and description of any Additional Owned Shares.

5.     Representations and Warranties of the Stockholders. Each Stockholder hereby represents and warrants to Purchaser as of the date hereof as follows:

(a)   Title. Such Stockholder is the sole record and beneficial owner of the shares of Company Common Stock set forth on Schedule I (the “Disclosed Owned Shares”). The Disclosed Owned Shares constitute all of the capital stock and any other equity securities of the Company owned of record or beneficially by such Stockholder and its Affiliates on the date hereof and neither such Stockholder nor any of its Affiliates is the beneficial owner of, or has any right to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any shares of Company Common Stock or any other equity securities of the Company or any securities convertible into or exchangeable or exercisable for shares of Company Common Stock or such other equity securities, in each case other than the Disclosed Owned Shares. Such Stockholder has sole voting power, sole power of disposition and sole power to issue instructions with respect to the matters set forth in Sections 3 and 4 hereof and all other matters set forth in this Agreement, in each case with respect to all of the Owned Shares with no limitations, qualifications or restrictions on such rights applicable to the covenants and other obligations of each Stockholder under the terms of this Agreement, subject to applicable securities laws and the terms of this Agreement and the Rollover Commitment Letter. Except as permitted by this Agreement and pursuant to the Rollover Commitment Letter, the Owned Shares and the certificates representing such shares, if any, are now, and at all times during the term hereof will be, held by such Stockholder, or by a nominee or custodian for the benefit of such Stockholder, free and clear of any and all liens, pledges, claims, options, proxies, voting trusts or agreements, security interests, understandings or arrangements or any other encumbrances whatsoever on title, transfer or exercise of any rights of a stockholder in respect of the Owned Shares (other than under applicable securities laws and as created by this Agreement and the Rollover Commitment Letter) (collectively, “Liens”).

(b)  Organization and Qualification. If not a natural person, such Stockholder is duly organized and validly existing in good standing under the laws of its jurisdiction of organization.

(c)   Authority. Such Stockholder has all necessary power and authority and legal capacity to execute, deliver and perform all of such Stockholder’s obligations under this Agreement, and consummate the transactions contemplated hereby, and no other proceedings or actions on the part of such Stockholder or its board of directors or governing body or trustees, or its stockholders, members, partners (limited or otherwise) or other equity holders or beneficiaries, as applicable, are necessary to authorize the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby.

(d)  Due Execution and Delivery. This Agreement has been duly and validly executed and delivered by such Stockholder and, assuming due authorization, execution and delivery hereof by Purchaser, constitutes a legal, valid and binding agreement of such Stockholder, enforceable against such Stockholder in accordance with its terms, subject to the effect of any applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity. If such Stockholder is married, and any of the Covered Shares constitute

community property or spousal approval is otherwise necessary for this Agreement to be legal, binding and enforceable, this Agreement has been duly authorized, executed and delivered by, and constitutes the legal, valid and binding obligation of, such Stockholder’s spouse, enforceable against such Stockholder’s spouse in accordance with its terms.

(e)   No Filings; No Conflict or Default. Except for the matters described in Section 3.03(d)(i) of the Merger Agreement, and compliance with the applicable requirements of the Exchange Act, no filing with, and no permit, authorization, consent or approval of, any Governmental Authority or any other person is necessary for the execution and delivery of this Agreement by such Stockholder, the consummation by such Stockholder of the transactions contemplated hereby and the compliance by such Stockholder with the provisions hereof. None of the execution and delivery of this Agreement by such Stockholder, the consummation by such Stockholder of the transactions contemplated hereby or compliance by such Stockholder with any of the provisions hereof will (i) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, modification or acceleration) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, permit, contract, commitment, arrangement, understanding, agreement or other instrument or obligation of any kind, including any voting agreement, proxy arrangement, pledge agreement, shareholders agreement or voting trust, to which such Stockholder is a party or by which such Stockholder or any of such Stockholder’s properties or assets may be bound, (ii) violate any judgment, order, writ, injunction, decree or award of any court, administrative agency or other Governmental Authority that is applicable to such Stockholder or any of such Stockholder’s properties or assets, (iii) constitute a violation by such Stockholder of any law or regulation of any jurisdiction, (iv) assuming the Company has taken all necessary action to exempt the Merger, the Merger Agreement, this Agreement and the transactions contemplated hereby and thereby from the restrictions set forth in Section 203 of the DGCL (and in connection therewith, assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 4.06 of the Merger Agreement), render Section 203 of the DGCL, or any other state takeover statute or similar statute or regulation, applicable to the Merger or (v) contravene or conflict with such Stockholder’s certificate of incorporation and bylaws or other organizational documents, in each case, except for any conflict, breach, default or violation described above which would not adversely affect in any material respect the ability of such Stockholder to perform its obligations hereunder or consummate the transactions contemplated hereby.

(f)   No Litigation. There is no suit, claim, action, investigation or proceeding pending or, to the knowledge of such Stockholder, threatened against such Stockholder at law or in equity before or by any Governmental Authority that could reasonably be expected to impair the ability of such Stockholder to perform its obligations hereunder or consummate the transactions contemplated hereby.

(g)  No Fees. No broker, investment banker, financial advisor or other person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder in its capacity as a stockholder of the Company.

(h)  Reliance. Each Stockholder understands and acknowledges that Purchaser and Merger Sub are entering into the Merger Agreement in reliance upon such Stockholder’s concurrent execution and delivery of this Agreement.

5.A. Survival. None of the representations and warranties of the Stockholders in this Agreement shall survive the Effective Time; provided that (a) the representations and warranties set forth in Sections 5(a), 5(e), 5(f) and 5(g) shall survive the Effective Time for a period of twelve (12) months following the Effective Time (the “Survival Period”) and (b) the expiration of such representations and warranties shall not affect the rights of Purchaser or its Affiliates in respect of any claim for breaches of such representations and warranties made in writing prior to the expiration of the Survival Period.

6.     Termination. The term (the “Term”) of this Agreement shall commence on the date hereof and shall terminate upon the earliest of (i) the mutual agreement of Purchaser and the Stockholders, (ii) the Effective Time and (iii) the termination of the Merger Agreement in accordance with its terms; provided that (A) nothing herein shall relieve any party hereto from liability for any breach of this Agreement prior to termination and (B) Section 5.A, this Section 6 and Section 8 shall survive any termination of this Agreement.

7.     No Limitation. Each Stockholder is entering into this Agreement solely in its capacity as a beneficial owner of Covered Shares, and not in its capacity (if applicable) as an officer or member of the Board of Directors of the Company. Nothing in this Agreement shall be construed to prohibit or limit any Stockholder from taking any action (including any action prohibited by Section 4 hereof) in his capacity as an officer or member of the Board of Directors of the Company, including from taking any action with respect to any Takeover Proposal as an officer or member of such Board of Directors.

8.     Miscellaneous.

(a)   Entire Agreement. This Agreement (together with Schedule I) constitutes the entire agreement among the parties hereto with respect to matters described herein and supersedes all other prior agreements and understandings, both written and oral, among the parties hereto with respect to such matters.

(b)  Further Assurances. Subject to the terms and conditions of this Agreement, at the other party’s reasonable request and without further consideration, each party hereto shall execute and deliver such additional documents and take all such further lawful action as may be necessary or desirable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby.

(c)   No Assignment. This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of the Stockholders (in the case of any assignment by Purchaser) or Purchaser (in the case of an assignment by any Stockholder); provided that Purchaser may assign its rights and obligations hereunder to Merger Sub or any other person to whom the Merger Agreement is validly assigned in accordance with Section 8.04 thereof, but no such assignment shall relieve Purchaser of its obligations hereunder.

(d)  Binding Successors. Without limiting any other rights Purchaser may have hereunder in respect of any Transfer of the Covered Shares, each Stockholder agrees that this Agreement and the obligations hereunder shall attach to the Covered Shares beneficially owned by such Stockholder and its Affiliates and shall be binding upon any person to which legal or beneficial ownership of such Covered Shares shall pass, whether by operation of law or otherwise, including, without limitation, such Stockholder’s heirs, guardians, administrators, representatives or successors.

(e)   Amendments. This Agreement may not be amended, changed, supplemented or otherwise modified except by an instrument in writing signed on behalf of Purchaser and the Stockholders.

(f)   Notice. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly received) (i) upon receipt, if delivered personally or by first class mail, postage pre-paid, (ii) on the date of transmission, if sent by facsimile transmission (with confirmation of receipt) or email, or (iii) on the Business Day after dispatch, if sent by nationally recognized, documented overnight delivery service, as follows:

If to the Stockholders:

At the address and facsimile number set forth on Schedule I hereto.

with a copy (which shall not constitute notice) to:

Freshfields Bruckhaus Deringer US LLP

601 Lexington Avenue, 31st Floor

New York, NY 10022

	Attention:	Matthew F. Herman Howard Klein
	Email:	[email protected] [email protected]

If to Purchaser:

c/o Rizvi Traverse Management, LLC

9465 Wilshire Blvd. Suite 840
Beverly Hills, California 90212

	Attention:	Audrey DiMarzo, General Counsel
	Email:	[email protected]

with a copy (which shall not constitute notice) to:

 

Latham & Watkins LLP

355 S. Grand Avenue
Los Angeles, California 90071

Attention:

Chris Brearton Jason Silvera

Email:

[email protected] [email protected]

 

or to such other address or facsimile number as the person to whom notice is given may have previously furnished to the other parties hereto in writing in the manner set forth above.

(g)  Severability. If any term, condition or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term, condition or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated by this Agreement are fulfilled to the extent possible.

(h)  Remedies. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any such right, power or remedy by any party hereto shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.

(i)    No Waiver. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with such party’s obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such party of such party’s right to exercise any such or other right, power or remedy or to demand such compliance.

(j)    No Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Agreement.

(k)  Governing Law. This Agreement (and any claim or controversy arising out of or relating to this letter agreement) shall be governed by, and construed in accordance with, the laws of the State of Delaware, applicable to contracts executed in and to be performed entirely within that State, regardless of the laws that might otherwise govern under any applicable conflict of laws principles.

(l)    Submission to Jurisdiction. All actions and proceedings arising out of or relating to this Agreement shall be heard and determined in the Chancery Court of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Chancery Court of the State of Delaware declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware) and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts in any such action or proceeding and irrevocably waive, and agree not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (i) any claim that such

party is not personally subject to the jurisdiction of the aforementioned courts, (ii) any claim that it or its property is exempt or immune from jurisdiction of the aforementioned courts or from any legal process commenced in such courts, and (iii) any claim that the action, suit or proceeding in such court is brought in an inconvenient forum, the venue of such action, suit or proceeding is improper, or this Agreement, or the subject matter hereof, may not be enforced in or by such court. The consents to jurisdiction and venue set forth in this Section 8(l) shall not constitute general consents to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any person other than the parties hereto. Each party hereto agrees that service of process upon such party in any action or proceeding arising out of or relating to this Agreement shall be effective if notice is given by overnight courier at the address set forth in Section 8(f) hereof.

(m)Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8(m).

(n)  Specific Performance. The parties hereto agree that Purchaser would be irreparably harmed in the event that any of the provisions of this Agreement were not performed by each Stockholder in accordance with their specific terms or were otherwise breached by such Stockholder, and that Purchaser would not have an adequate remedy at law for money damages in such event. It is accordingly agreed that Purchaser shall be entitled, without posting any bond or other undertaking, to specific performance and injunctive and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which Purchaser is entitled at law or in equity.

(o)  Interpretation. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. The words “include,” “includes” and “including” shall be deemed to be followed by “without limitation” whether or not they are in fact followed by such words or words of like import. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. No provision of this Agreement shall be interpreted for or against any party hereto because that party or its legal representatives drafted the provision. The words “hereof,” “hereto,” “hereby,” “herein,” “hereunder” and words of similar import, when used in

this Agreement, shall refer to this Agreement as a whole and not any particular section in which such words appear.

(p)  Counterparts. This Agreement may be executed in counterparts (including by facsimile or by .pdf delivered via email), each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.

(q)  Expenses. Except as otherwise provided herein, each party hereto shall pay such party’s own expenses incurred in connection with this Agreement. Notwithstanding the foregoing, the parties agree and acknowledge that (i) following the Closing, the fees and expenses of the Stockholders incurred in connection with this Agreement, the Rollover Commitment Letter and the transactions contemplated hereby and thereby shall be borne as set forth in the employment agreement to be entered into between Michael V. Lewis and the Company at the Closing in substantially the form set forth on Schedule C to the Rollover Commitment Letter; and (ii) without limitation of any liability in connection with a breach of this Agreement, the Rollover Commitment Letter or any other document or instrument to which any of the Stockholders is party in connection with the transactions contemplated hereby and thereby, under no circumstances shall any Stockholder be liable for any portion of the Purchaser Termination Fee or any other amount that may be payable by the Purchaser, the Guarantor or any of their respective Affiliates to the Company or any other Person (including any Financing Source) in connection with the Merger and the transactions contemplated by the Merger Agreement (whether or not consummated).

(r)   No Ownership Interest. Nothing contained in this Agreement shall be deemed, upon execution, to vest in Purchaser any direct or indirect ownership or incidence of ownership of or with respect to any Covered Shares. All rights, ownership and economic benefits of and relating to the Covered Shares shall remain vested in and belong to the Stockholders, and Purchaser shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct the Stockholders in the voting of any of the Covered Shares, except as otherwise provided herein or in accordance with the terms of the Merger Agreement.

(s)   Consent. Each Stockholder’s spouse, if any, shall be required to execute the form of spousal consent set forth on Exhibit A to evidence such spouse’s agreement and consent to be bound by the terms and conditions of this Agreement as to such spouse’s interest, whether as community property or otherwise, if any, in such Stockholder’s Covered Shares.

[Signature page follows.]

IN WITNESS WHEREOF, Purchaser and the Stockholders have caused this Agreement to be duly executed as of the day and year first above written.

RHOMBUS CINEMA HOLDINGS, LLC
By:	/s/	Ben Kohn
Name:		Ben Kohn
Title:		Authorized Signatory

STOCKHOLDERS
/s/ Michael V. Lewis
Name:  MICHAEL V. LEWIS

 

The MVL Trust dated August 3, 2010
By:	/s/ Michael V. Lewis
Name: Michael V. Lewis
Title: Trustee

Exhibit 99.4

 

 

Agreement to Jointly file Schedule 13D

 

The undersigned hereby agree to jointly prepare and file with regulatory authorities a Schedule 13D and any future amendments thereto reporting each of the undersigned’s ownership of securities of RealD Inc. and hereby affirm that such Schedule 13D is being filed on behalf of each of the undersigned.

 

Date: November 12, 2015

 

/s/ Michael V. Lewis
Michael V. Lewis, Individually
The MVL Trust dated August 3, 2010
/s/ Michael V. Lewis
Michael V. Lewis, Trustee

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