Exhibit
10.33


 


January 21, 2010


 


Mr. Craig Gatarz


134 Marvin Avenue


Los Altos, CA 94022


 


Dear Craig:


 


On
behalf of RealD (the “Company”), I am pleased to offer you the position
described herein and present you with this offer letter agreement (the “Agreement”)
setting forth certain terms and conditions of your employment.


 


1.     Duties. You shall serve during
the course of your employment as Executive Vice-President and General Counsel
of the Company and shall report directly to Michael V. Lewis, the Chief Executive
Officer (the “CEO”) of the Company. You shall be a member of the Company’s
senior management team and shall have such duties and responsibilities as shall
be consistent with your position and as shall be assigned to you by the CEO.
You shall work out of the Company’s headquarters in Beverly Hills, CA. During
the term of your employment with the Company, you will devote your full
business time, skill and attention to your duties and responsibilities, and
will perform them faithfully, diligently and competently, and you will use your
best efforts to further the business of the Company.


 


a.     No
Conflicting Obligations. By signing this
Agreement, you confirm to the Company that you have no contractual commitments
or other legal obligations that would prohibit you from performing your duties
for the Company.


 


b.     Start
Date. Your official employment start date (the “Start
Date”) shall be February 8, 2010. However, in the interim, you will attend the
investment bank organization meeting, as the Company and its investment bankers
will hold its organizational meeting prior to February 8. Also, prior to the
start date, you will participate in the interviewing and selection of a law
firm, as the Company will select its law firm before February 8. Also, between
now and February 8, you will make yourself fully available to the Company via
telephone and email. You will be compensated for any week in which you perform
work prior to your February 8, 2010 start date at a weekly salary of $4,000,
less all applicable withholdings and deductions. You will not be eligible to
receive Company benefits prior to February 8, 2010.


 


2.     Compensation.


 


a.     Base Salary. Your initial base salary
will be $250,000 on an annual basis, less all applicable withholdings and
deductions, payable in accordance with the Company’s standard payroll
procedures.


 


b.     Annual Bonus. You will be eligible to
receive an annual performance bonus in the amount of up to 50% of your
then-current base salary amount, less all applicable withholdings and
deductions. Each Bonus Period lasts for twelve (12) months from April 1 through
March 31 every year. Your bonus for fiscal year ended March 2011 shall be based
on performance goals to be determined within sixty days after your Start Date,
which shall include MBO goals consisting of a combination of


 

















 


corporate goals and individual goals (e.g.,
completion of the IPO or other financing event). Each subsequent Bonus Period’s
performance goals shall be determined by the CEO or the Company’s board of
directors (or a committee thereof), after the commencement of such fiscal year,
set in its sole discretion and in consultation with you. For each Bonus Period,
if both (i) the Company’s EBITDA for the Bonus Period exceeds the
Board-approved budgeted EBITDA for the Bonus Period, and (ii) you meet your
agreed-upon MBO Goals for the Bonus Period, you shall be eligible for the cash
bonus payable on or as soon as reasonably practicable after July 1 after the
end of the Bonus Period. To earn any bonus, you must be employed by the Company
on the date the bonus will be paid. If the
Company terminates you without Cause (as defined herein) prior to July 1
following a complete Bonus Period, and you have otherwise met all criteria to
earn such bonus, the Company will pay you the bonus as if you were employed on July
1, provided you timely execute and deliver a general release of claims in favor
of the Company, Company Group, and their employees and affiliates, in the form
provided by the Company, within the period specified in the release, but in no
event after the 45th day following the termination of your employment.


 


c.     Company-Sponsored
Benefits. As a member of the senior management team of the
Company, you will also be eligible to receive certain employee benefits
pursuant to the Company’s standard benefit plans that the Company generally
provides to the other members of the senior
management team that may be in effect from time to time. These currently
include paid vacation, monthly health insurance provided pursuant to the
Company’s health insurance plan, 401(k) retirement benefits and Company paid
holidays. The Company many, in its sole discretion and from time to time, amend
or eliminate any of these benefits.


 


d.     Special Bonus. As of the
commencement of your employment with the Company, the Company will pay you a
special bonus (the “Special Bonus”) in the amount of $100,000, less all
applicable withholdings and deductions. This Special Bonus will be earned
monthly in 1/12th increments on the first of the month following
each full month of completed employment, and advanced in full upon commencement
of employment. In the event that you voluntarily resign from the Company within
the first year of your employment with the Company,
you will be obligated to return the unearned portion of the Special Bonus to
the Company. In the event your employment is terminated without Cause (as
defined herein) by the Company, or you resign for Good Reason (as defined
herein), during the first year of employment, you shall be entitled to keep the
Special Bonus in full.


 


e.     Severance. You shall be
entitled to severance payments paid over a one year period beginning on your
separation date from the Company in accordance with the Company’s normal
payroll practices in an amount equal to your then current
annual base salary, less all
applicable withholdings and deductions, if: (i) you are terminated at any time
without Cause (as defined herein) by the Company; or (ii) you are terminated
without Cause by the Company or you resign for Good Reason within one (1) year
after a Change in Control (as defined herein). In addition to the amount above,
you shall be entitled to an additional $75,000.00 payable in equal increments
over a one year period beginning on your separation date from the Company in
accordance with the Company’s normal payroll practices, less all applicable
withholdings and deductions, if the Company terminates you without Cause (as
defined herein) within one (1) year after a Change in Control. You must timely
execute and deliver a general release of claims in favor of the Company,
Company Group, and their employees and affiliates, in the form provided by the
Company, within the period specified in the release, but in no event after the
45th day following the termination of your
employment, in order to receive any severance payments hereunder. If any
payment or benefit received or to be received by you (including any payment or
benefit received pursuant to this Agreement or otherwise) would be (in whole or
part) subject to the


 


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excise
tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended
(the “Code”), or any successor provision thereto, or any similar tax imposed by
state or local law, or any interest or penalties with respect to such excise
tax (such tax or taxes, together with any such interest and penalties, are
hereafter collectively referred to as the “Excise Tax”), then, the payments
provided under this Section will be reduced to the extent necessary to make
such payments and benefits not subject to such Excise Tax. In no event will the
Company be required to gross up any payment or benefit to you to avoid the
effects of the Excise Tax or to pay any regular or excise taxes arising from
the application of the Excise Tax. Unless the Company and you otherwise agree
in writing, any parachute payment calculation will be made in writing by
independent public accountants agreed to by the Company and you, whose
calculations will be conclusive and binding upon the Company and you for all
purposes. The Company and you will furnish to the accountants such information
and documents as the accountants may reasonably request in order to make a
parachute payment determination.


 


f.      Code Section 409A. Anything in this
Agreement to the contrary notwithstanding, if the severance payment above
constitutes an item of deferred compensation subject to Code Section 409A, the
Company and you shall take all steps necessary (including with regard to any
post-termination services you may perform) to ensure that any termination
described above constitutes a “separation from service” within the meaning of
Code Section 409A. In addition, no such payment will be made to your prior to
the earlier of (a) the expiration of the six-month period measured from the date
of your “separation from service” (as such term is defined in Treasury
Regulations issued under Code Section 409A) or (b) the date of your death, if
your are deemed at the time of such separation from service to be a “specified employee” within the meaning of that
term under Code Section 409A and to the extent such delayed commencement is
otherwise required in order to avoid a prohibited distribution under the
Treasury Regulations issued under Section 409A of the Code. All payments and
benefits which had been delayed pursuant to the immediately preceding sentence
will be paid to you in a lump sum upon expiration of such six-month period (or
if earlier upon your death). It is intended that payments under this Agreement
will be exempt from or comply with Code Section 409A, but the Company makes no
representation or covenant to ensure that the payments under this Agreement are
exempt from, or compliant with, Code Section 409A, and will have no liability
to you or any other party if a payment under this Agreement that is intended to
be exempt from, or compliant with, Code Section 409A is not so exempt or
compliant.


 


g.     Expense Reimbursement.
You shall be reimbursed for all documented reasonable business expenses that are incurred in the
ordinary course of business in accordance with the Company’s expense
reimbursement policy as in effect from time to time. In addition, the Company will reimburse you for
your reasonable travel expenses to and from your current home in Northern
California and Los Angeles until such time as your relocation to Los Angeles is
completed. In addition, in the event of a reimbursement that constitutes an
item of deferred compensation that is subject to Code Section 409A, (i) the
amount of expense reimbursement in one calendar year can in no way affect the
amount of reimbursement in another calendar year for you; (ii) in all events
such reimbursement(s) must be made no later than the last day of the year
following the calendar year in which the expense is incurred; and (iii) no such
reimbursement(s) may be subject to liquidation for cash or exchange for another
benefit.


 


h.     Definitions.


 


(i)            For the purposes of this
Agreement, the term “termination without Cause” shall mean a termination of
your employment by the Company for any reason other than Cause, death


 


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or disability. “Cause”
shall mean fraud, willful misconduct or violation of Company policies or
practices, use or disclosure of Confidential Information that is unauthorized
by this Agreement, or your performance of any act or omission which, if you
were prosecuted, would constitute a felony of any nature, or a misdemeanor that
reflects negatively on your ability to act in an executive role, in each case
as determined by the Board, whose determination shall be conclusive and
binding. Upon a termination of your employment by the Company for Cause, you
will be entitled to only any salary and other benefits earned, but unpaid, and
any reimbursement for expenses owed to you by the Company, as of the date of
termination.


 


(ii)           For the purposes of this
Agreement, “Good Reason” shall mean your resignation or departure by reason of
and within 30 days following the occurrence of any of the following events
without your express written consent, unless corrected prior to the date of
resignation:


 


(1)           a material reduction in
your then current annual base salary or a material diminution to your title,
reporting structure or assigned duties or responsibilities with the Company or
any surviving entity (other than as a result of the Company becoming a part of
a larger company where you hold similar duties or responsibilities in a
division of such larger company);


 


(2)           a change in the location of
the current Beverly Hills, California facilities of the Company or other event
that requires you to relocate more than 50 miles from the location of your
employment; or


 


(3)           the failure of the Company
to obtain an agreement from any successor to the Company, or purchaser of all
or substantially all of the Company’s assets, to assume this Agreement.


 


(iii)          For purposes of this
Agreement, “Change in Control” shall mean:


 


(1)          any person or group of
persons (as defined in Section 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended ( the “Exchange Act”) together with its affiliates, but
excluding (i) the Company or any of its subsidiaries, (ii) any employee benefit
plans of the Company, or (iii) a corporation or other entity owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company (individually, a “Person”
and collectively, “Persons”), is or becomes, directly or indirectly, the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act) of securities of the
Company representing 50% or more of the combined voting power of the Company’s
then-outstanding securities (not including in the securities beneficially owned
by such Person any securities acquired directly from the Company or its
affiliates);


 


(2)          the consummation of a
merger or consolidation of the Company or any direct or indirect subsidiary of
the Company with any other corporation or other entity regardless of which
entity is the survivor, other than a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or being converted into
voting securities of the surviving entity) more than 50% of the combined voting
power of the voting securities of the Company, such surviving entity or any
parent thereof outstanding immediately after such merger or consolidation; or


 


(3)          there is consummated an
agreement for the sale or disposition of all or substantially all of the
Company’s assets.


 


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3.     Equity Award. You will be offered a
non-qualified stock option to purchase 200,000 shares of common stock (the “Option”)
of the Company. You will be granted this Option on the earlier of the Financing
Event (e.g., issuance of equity securities in excess of $25,000,000, including
IPO) date or September 30, 2010. If the Option is granted on the Financing
Event date, then the exercise price will be based upon the Financing Event
price, but in any event will be equal to not less than the fair market value of
the underlying shares on the date of grant as determined in accordance with the
terms of the 2004 Amended and Restated Stock Plan, or any successor plan
thereto (the “Stock Plan”). If the Option is granted on September 30, then the
exercise price will be equal to the fair market value of the underlying shares
on the date of grant as determined in accordance with the terms of the Stock
Plan. Your vesting commencement date will be your Start Date. Your Option terms
and conditions will be the same as those provided to Skarupa, Peixoto and all
other RealD employees under the 2004 Amended and Restated Stock Plan. In the
event of a Change in Control that occurs prior to the Financing Event date and September
30, the Option will be granted as of the date immediately prior to the consummation date of the Change in
Control at the Change in Control price, but in any event will be equal to not
less than the fair market value of the underlying shares on the date of grant as determined in accordance with the terms of the Stock Plan.


 


4.     Contingencies; Company Agreements.
Your employment pursuant to this offer is contingent upon your providing the
Company with the legally required proof of your identity and authorization to
work in the United States, and a successful background check. 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 or thereafter,
develop certain information or inventions which will be the property of the Company. In consideration of, and as a condition to, your employment with
the Company, and as an essential inducement to the Company to enter into this
Agreement, this Agreement is expressly subject to your executing the RealD
Employee Invention Assignment and Confidentiality Agreement in the form
enclosed hereto.


 


5.     Miscellaneous.


 


a.     Northern California Lease.
The Company shall either pay directly or reimburse you for up to $24,000 in
connection with the rent obligations under your current Northern California
home lease, which is scheduled to expire in June 2010.


 


b.     Relocation Expenses. The Company will
reimburse you for reasonable relocation expenses from your current home in
Northern California to Los Angeles, using a nationally recognized moving
company. Such expenses shall be capped at $10,000.


 


In
addition, in the event of a reimbursement contemplated under this Section 5
that constitutes an item of deferred compensation that is subject to Code Section
409A, (i) the amount of expense reimbursement in one calendar year can in no
way affect the amount of reimbursement in another calendar year for you; (ii) in
all events such reimbursement(s) must be made no later than the last day of the
year following the calendar year in which the expense is incurred; and (iii) no
such reimbursement(s) may be subject to liquidation for cash or exchange for
another benefit.


 


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c.     Other Matters.


 


(i)            During your employment, the
Company will reimburse you for all reasonable expenses related to: (i) the
maintenance of your State Bar memberships in the States of California and New
York; and (ii) all required continuing legal education classes and
requirements.


 


(ii)           The Company shall provide
you with a new Company-owned laptop computer reasonably acceptable to you for
your use provided you agree to comply with any applicable Company policies
regarding its use. You are required to return this laptop, and all other
Company property, to the Company upon termination of your employment.


 


6.     At-Will Employment. While we hope that
your employment with the Company will be mutually satisfactory, employment with
the Company is for no specific period
of time. As a result, either you or the Company is free to terminate your
employment relationship at any time for any reason, with or without cause, and with or without notice. Although your
job duties, title, compensation and benefits, as well as the Company’s
personnel policies and procedures, may change from time-to-time, the “at-will” nature of your employment may not
be amended or modified except by an express writing signed and dated by both you and an executive
officer of the Company (other than you).


 


7.     Entire Agreement. This Agreement,
the Employee Invention Assignment and Confidentiality Agreement, and the
Company’s 2004 Amended and Restated Stock Incentive Plan, as amended or
superseded from time to time, contain the entire agreement between you and the
Company regarding their terms.


 


8.     Choice of Law; Severability.
This Agreement will be governed by the laws of the State of California. If any
provision of this Agreement, or portion thereof, shall be held invalid or
unenforceable by a court of competent jurisdiction, such invalidity or unenforceability
shall attach only to such provision or portion thereof, and shall not in any
manner affect or render invalid or unenforceable any other provision, or portion thereof, of this Agreement.


 


9.     Successors and Assigns.
The Company may assign this Agreement to any successor (whether by
amalgamation, merger, consolidation, sale of assets, purchase or otherwise) to
all or substantially all of the equity, assets or business of the Company, and
this Agreement will be binding upon and
inure to the benefit of such successors and assigns, including any Successor
Company.


 


10.   A duplicate original of
this offer is enclosed for your records. This offer will remain open until January
23, 2010. If you decide to accept the terms of this Agreement, please sign the
enclosed copy of this Agreement and the Employee Invention Assignment and
Confidentiality Agreement in the space indicated 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 Employee Invention Assignment and Confidentiality Agreement. Should you
have anything else that you wish to
discuss,


 


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please do not hesitate to call me. We look
forward to working with you at RealD.


 


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  RealD

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael V. Lewis

  
	
   

  	
   

  	
  Michael V. Lewis

  
	
   

  	
   

  	
  Chief Executive Officer

  



 


I have read, understand, and accept this
employment offer. Furthermore, In choosing to accept this offer, I agree that I
am not relying on any representations, whether verbal or written, except as
specifically set out within this Agreement.


 


 


	
  /s/ Craig Gatarz

  	
   

  
	
  Employee Signature

  	
   

  
	
   

  	
   

  
	
  Craig Gatarz

  	
   

  
	
  Printed Name

  	
   

  
	
   

  	
   

  
	
  Date: January 21, 2010

  	
   

  



 


	
  Enclosures:

  	
   

  	
  Duplicate Original Letter

  
	
   

  	
   

  	
  RealD Employee Invention
  Assignment and Confidentiality Agreement.

  



 


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