Exhibit 10.36


 


Real D

100 N. Crescent Drive., Suite 120

Beverly Hills, CA 90210


 


September 1, 2007


 


Joseph
Peixoto


4218
Vicasa Drive


Clabasas,
CA 91302


 


Re:                               Amended and
Restated Agreement of Employment by and between REAL D and Joseph Peixoto


 


This
Amended and Restated Agreement of Employment by and between REAL D, Inc. (“REAL D”,  or the “Company”)  and
Joseph Peixoto (this “Agreement”)  amends
and restates the terms contained in that certain Offer of Employment by REAL D
dated January 16, 2006, previously agreed to by you and REAL D (the “Employment
Offer”). You shall report directly to the
Chief Executive Officer, and your title shall be President Worldwide Cinema.
The terms of our offer, and the benefits to be provided by the Company, each to
be effective as of September 1, 2007, are as follows:


 


1.                                       Annual Base
Salary. Your annual base salary will be $350,000 per annum. Your annual base
salary will increase to $500,000 on the first day in which the installed base
commitment for REAL D systems exceeds 4,000 and the actual installed
base of REAL D systems exceeds 1,500.


 


2.                                       Term. Unless sooner
terminated as herinafter provided, the term of your employment hereunder shall
continue for an initial four (4) years from the date hereof (the “Initial
Term”), and shall be automatically
extended for one year periods thereafter (each, an “Extension Period”  and collectively with the Initial Term,
hereinafter referred to as the “Term”), unless either you or the
Company gives the other written notice of its intent to terminate at least
three (3) months prior to the commencement of the applicable Extension
Period.


 


3.                                       Benefits. You will be
eligible to receive certain employee benefits pursuant to the Company’s
standard benefit plans that the Company generally provides its senior
executives. These include three weeks of vacation, monthly health insurance
provided pursuant to the Company’s health insurance plan, and Company paid
holidays. In addition, the Company will reimburse you for the reasonable and
necessary costs of DSL, phone and office expenses; provided, that such
expenses are approved in advance by the Company in writing.


 


4.                                       Bonuses. You will be
entitled to certain bonuses: provided, that certain Company milestones
are achieved. You will receive a one time cash bonus payment of $1,000,000 if
and when the Company’s actual installed base of REAL D systems exceeds 1,000,
and an additional one time cash bonus payment of $1,000,000 if and when the
Company’s actual installed base of REAL D systems exceeds 4,000. These bonus payments
will be paid in four (4) equal quarterly installments, the first such
installment being paid at the end of the calendar quarter in which the
applicable milestone has been achieved. In addition, during the Term, you will
be eligible to


 

















 


receive
a bonus payment in the amount equal to 1.2% of the Company’s Annual Free Cash
Flow (as defined in this Section 4). This bonus will be paid within sixty
(60) days after the end of each calendar year of your employment; provided,
that you are employed by the Company as of the end of that calendar year. For
purposes of this Agreement, “Annual Free Cash Flow”  shall mean the Company’s cash flow
provided by operations, less all capital expenditures, for the calendar year in
question. In addition, in the event that your employment is terminated by the
Company without “Cause”, or is voluntarily terminated by you for “Good
Reason”  (each
as defined in Section 8 below), you shall be entitled to receive (a) any
bonus payments that may then remain due to you, as a result of achievement of
one or both of the milestones specified in the second sentence of this Section 4,
which bonus payments will be paid to you as such bonus payments otherwise would
have been paid to you pursuant to the third sentence of this Section 4,
and (b) a pro rated share of any bonus payment that otherwise would have
been payable to you pursuant to the fourth sentence of this Section 4,
such amount to be payable to you, within sixty (60) days after the end of the
applicable calendar year.


 


5.                                       Option Grants. In addition
to the options to purchase 500,000 shares of Common Stock of the Company that
were previously granted to you, subject to approval of the Board of Directors
of the Company (the “Board”),  you will be  granted options
to purchase an additional 250,000 shares of Common Stock of the Company (the “Options”), pursuant
to the Company’s 2004 Amended and Restated Stock Incentive Plan (the “Plan”), and
with such vesting schedule and exercise price as will be determined by the
Board on the date the Board approves such grant. You will receive an additional
grant of 250,000 Options on the first day of the second month following the
month in which the installed base commitment for REAL D systems exceeds 4,000 and
the actual installed base of REAL D systems exceeds 1,500; provided,
that you are employed by the Company as of the actual date that these two
milestones are achieved. These Options will be granted pursuant to the Plan and
with such vesting schedule and exercise price as will be determined by the Board
on the date the Board approves such grant.


 


Further
details on the Plan and any specific vesting and option grants to you will be
provided upon final approval of such grants by the Board. Copies of the Plan
and the Company’s standard form of option grant notice and stock option
agreement will be made available to you upon request.


 


6.                                       Travel. You shall
also be entitled to reimbursement, in accordance with the Company’s travel and
entertainment policy, for all expenses incurred in travel pursuant to the
normal course of business.


 


7.                                       Confidentiality. As an
employee of the Company, you will have access to certain confidential
information of the Company and you may, during the course of your employment,
develop certain information or inventions which will be the property of the
Company. To protect the interests of the Company, you have previously executed
the Company’s standard “Employee Invention Assignment and Confidentiality
Agreement” as a condition of your employment. During the period that you render
services to the Company, and during the period that you receive compensation
(including severance) from the Company, and for at least one (1) year
after your employment with the Company is terminated (for any reason), you
agree to not engage in any employment, business or activity that is in any way
competitive with the 3-D cinema business then conducted or then proposed to be
conducted by the Company. You will disclose to


 


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the
Company in writing any other gainful employment, business or activity that you
are currently associated with or participate in that competes with the Company.
You will not assist any other person or organization in competing with the
Company’s 3-D cinema business or in preparing to engage in competition with the
3-D cinema business or proposed 3-D cinema business of the Company. You
represent that your execution of this Agreement, agreement(s) concerning
stock options, granted to you, if any, under the Plan and the Company’s Employee
Invention Assignment and Confidentiality Agreement, and your continuation of
employment with the Company, will not violate any agreement currently in place
between yourself and current or past employers.


 


8.                                       Severance.
Notwithstanding anything to the contrary set forth herein, in the event your
employment hereunder is terminated by the Company without “Cause”  or by you for “Good Reason”  (each as defined in this Section 8),
at any time during the Initial Term only, you will be entitled to receive a
cash severance payment equal to the annual base salary then being paid to you,
which severance payment will be paid to you in equal monthly installments over
the remaining period of the Initial Term.


 


For
purposes of your employment and any option grants to be made pursuant to the
terms of this Agreement, “Cause”  shall mean your: (i) conviction of
any crime which constitutes a felony involving moral turpitude or which impairs
your ability to perform your duties with the Company; (ii) commitment of
any act of dishonesty or fraud against the Company, or its affiliates, or the
misappropriation of funds of the Company, or its affiliates; (iii) failure
to follow the reasonable policies or directions of the Board or failure to
substantially perform your duties to the Company, in either case which failure
is not cured within thirty (30) days of the Company’s written notice to you; or
(iv) breach of any terms of your employment hereunder or your Employee
Invention Assignment and Confidentiality Agreement, which breach is not cured
within thirty (30) days of the Company’s written notice to you.


 


For
purposes of your employment and any Option grants to be made pursuant to the
terms of this Agreement, “Good Reason,”  shall
mean the occurrence of any of the following events or conditions, and the
failure of the Company or, in the case that a “Company Transaction”  has occurred (as defined in the Plan),
the “Successor Company”  (as defined in the Plan), to cure such
event or condition within thirty (30) days after receipt of written notice from
you:


 


(a)                                  a change in
your status, title, position or responsibilities (including reporting
responsibilities) that, in your reasonable judgment, represents a substantial
reduction in your status, title, position or responsibilities as in effect
immediately prior thereto; the assignment to you of any duties or
responsibilities that, in your reasonable judgment, are materially inconsistent
with your status, title, position or responsibilities; or your removal from or
any failure to reappoint or reelect you to any of such positions, except in
connection with the termination of your employment for Cause, as a result of
your “Disability”  (as defined in the Plan), or death, or by
you other than the Good Reason;


 


(b)                                 a reduction in
your base annual salary;


 


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(c)                                  the Company’s
or the Successor Company’s requiring you (without your consent) to be based at
any place outside a 50-mile radius of your place of employment on the date of
this Agreement, except for reasonably required travel on the Company’s or the
Successor Company’s business that is not materially greater than such travel
requirements as historically required;


 


(d)                                 the Company’s
or the Successor Company’s failure to (i) continue in effect  any material
compensation or benefit plan (or the substantial equivalent thereof) in which
you were participating as of the date of this Agreement, or at the time of a
Company Transaction, as applicable, and including, but not limited to, the
Plan, or (ii) provide you with compensation and benefits substantially
equivalent (in terms of benefit levels and/or reward opportunities) to those
provided for under each material employee benefit plan, program and practice as
in effect as of the date of this Agreement, or immediately prior to the Company
Transaction, as applicable;


 


(e)                                  any material
breach by the Company or Successor Company of its obligations to you under the
Plan or any substantially equivalent plan of the Company or the Successor
Company;


 


(f)                                    any purported
termination of your employment or service relationship for Cause by the Company or
the Successor Company that is not in accordance with the definition of Cause
under the Plan; or


 


(g)                                 any change in
your reporting relating to Michael V. Lewis.


 


9.                                       Entire Agreement; No Modification. This
Agreement, your Employee Invention Assignment and Confidentiality Agreement,
and the Plan, shall constitute the entire agreement between the parties hereto
relating to the subject matter hereof, and supersede all prior oral or written
agreements, understandings, representations and courses of conduct and dealing
between the parties relating to the subject matter hereof, including without
limitation the Employment Offer. This Agreement may not be amended or modified
except in a writing executed by both parties hereto. This Agreement may be
executed in counterparts, each of which shall constitute an original, and all
of which will constitute one and the same instrument.


 


10.                                 Miscellaneous.


 


(a)                                  All payments to
be made pursuant to this Agreement shall be made, in US Dollars, in accordance
with normal payroll practices, and shall be subject to withholding of such
amounts as is required under applicable law.


 


(b)                                 This Agreement
shall be governed by and construed under the laws of the State of California
without regard to principles of conflict of laws. The parties irrevocably
consent to the jurisdiction and venue of the state and federal courts located
in Los Angeles County, California in connection with any action relating to this
Agreement.


 


(c)                                  Any and all notices
required or permitted to be given to you or the Company pursuant to the
provisions of this Agreement will be in writing and will be effective and
deemed to provide such party sufficient notice hereunder on the earliest of the
following: (i)


 


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at
the time of personal delivery, if delivery is in person; (ii) one (1) business
day after deposit with an express overnight courier for United States
deliveries, or two (2) business days after such deposit for deliveries
outside of the United States; (iii) three (3) business days after deposit
in the United States mail by certified mail (return receipt requested) for
United States deliveries. All notices not delivered personally will be sent
with postage and/or other charges prepaid and properly addressed to the party
to be notified at the address set forth in this Agreement for such party, or at
such other address as such party may designate by one of the indicated means of
notice herein to the other party hereto.


 


Could
you please sign the enclosed copy of this Agreement in the space indicated
below and return it to me. Your signature will acknowledge that you have read
and understood and agreed to the terms and conditions of this Agreement and the
Employee Invention Assignment and Confidentiality Agreement previously executed
by you.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Michael
  V. Lewis,

  
	
   

  	
  Chief
  Executive Officer

  



 


 


Acceptance


 


I
have read and understood this Agreement, and hereby acknowledge, accept and
agree to the terms as set forth above, and further acknowledge that no other
commitments were made to me as part of my employment except as specifically forth
herein.


 


 


	
   

  	
   

  	
   

  
	
  Joseph
  Peixoto

  	
   

  	
  Date
  Signed

  



 


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