Exhibit 10.49
DREAMWORKS ANIMATION SKG,
INC.
1000 FLOWER STREET
GLENDALE, CA 91201
As of January 19, 2007
Anne Globe
c/o Munger, Tolles & Olsen
LLP
355 South Grand Avenue
35
th
Floor
Los Angeles, CA 90071
Attn: Rob Knauss
Dear Anne:
Upon the Commencement Date (as
defined below) DreamWorks Animation SKG, Inc.
(“Employer”) agrees to employ you and you agree to
accept such employment upon the terms and conditions set forth in
this agreement (“Agreement”) Upon Employer’s
receipt of executed copies (in form and substance satisfactory to
Employer) of this Agreement, this Agreement shall supersede the
executed Employment Agreement, dated as of October 1, 2004
(the “Prior Agreement) between Studio and you, and the Prior
Agreement shall be deemed terminated effective as of
January 19, 2007. Employer shall have no obligation under this
Agreement unless and until Employer has received from Employee a
fully executed copy of this Agreement (in form and substance
satisfactory to Employer).
1. Term . The term of
your employment hereunder shall commence on January 19, 2007
(the “Commencement Date”) and shall continue until
January 1, 2012. This period shall hereinafter be referred to
as the “Employment Term.”
2.
Duties/Responsibilities .
a. General . Your title shall
be “Worldwide Head of Marketing and Consumer Products”
of Studio.
b. Services . During the
Employment Term you shall render your exclusive full time business
services to Studio and/or its divisions, subsidiaries or affiliates
in accordance with the reasonable directions and instructions of
the President of Studio, all as hereinafter set forth. Employee
shall report to the President of Employer (currently Lew Coleman
[“Coleman’]); provided that if Coleman is not actively
involved in the business of Employer or otherwise incapable of
involvement in the day-to-day business of Employer, including by
reason of death or disability, then Employee shall report to the
CEO of Studio. If any senior executive other than the President
reports to the CEO, then you shall be entitled to report to the
CEO. Notwithstanding the foregoing, Studio may not require you to
render services on a permanent basis outside Los Angeles County
without your consent. If Studio moves its primary operations
outside of Los Angeles County and you do not consent to render
permanent services at such new location, then you may elect to
terminate this Agreement.
3. Exclusivity . You
shall not during the Employment Term perform services for any
person, firm or corporation (hereinafter referred to collectively
as a “person”) without the prior written consent of
Studio and will not engage in any activity which would interfere
with the performance of Studio’s services hereunder, or
become financially interested in any other person engaged in the
production, distribution or exhibition of motion pictures or
television programs (including, without limitation, motion pictures
produced for, distributed to or exhibited on free, cable, pay,
satellite and/or subscription television, music and/or
interactive), anywhere in the world. Nothing contained herein shall
prevent you from owning publicly traded minority stock interests
not to exceed five percent (5%), limited partnership interests or
other passive investment interests in businesses performing any of
the aforesaid activities.
4.
Compensation.
a. Base Salary . For all
services rendered under this Agreement, Studio will pay you a
yearly base salary rate of Eight Hundred Thirty Five Thousand
Dollars ($835,000.00) for each full year of the Employment Term,
payable in accordance with Studio’s applicable payroll
practices (“Base Salary”). Promptly following execution
of this Agreement, you shall receive a cash payment (subject to
applicable withholding) of that portion of your Base Salary that
you would have received if this Agreement had been effective as of
January 2, 2007.
b. Equity-Based Compensation
.
(i) You will be eligible, while you
remain employed hereunder, subject to annual approval by the
Compensation Committee, to receive an annual cash bonus award
pursuant to the terms of the Studio’s short term incentive
plan. It is Studio’s present expectation, that such annual
awards will have an aggregate grant-date value, depending on
company performance, ranging between $350,000 (bonus target) and
$650,000 (in the case of superior company performance).
(ii) In addition, you will be
eligible, while you remain employed hereunder, subject to annual
approval by the Compensation Committee, to receive annual equity
incentive awards consistent with other senior executives subject to
compensation committee approval. It is Studio’s present
expectation, that such annual awards will have an annual aggregate
grant-date value targeted at $2,000,000.
5. Benefits . In
addition to the foregoing, you shall be entitled to participate in
such other, medical, dental and life insurance, 401(k), pension and
other benefit plans as Studio may have or establish from time to
time for its most senior executives. In addition, Studio shall
cover the cost of personal financial consulting services to you.
During the Employment Term, unless earlier terminated as set forth
below, you shall be entitled to coverage in accordance with
Studio’s standard leave of absence policy and shall be
entitled to vacation days and/or personal days to be taken subject
to the demands of Studio (as determined by Studio) and consistent
with the amount of days taken by other senior level executives;
provided, however, no vacation time will be accrued during the
Employment Term. The foregoing, however, shall not be construed to
require Studio to establish any such plans or to prevent the
modification or termination of such plans once established, and no
such action or failure thereof shall affect this
Agreement.
6. Business Expenses .
Studio shall reimburse you for business expenses on a regular basis
in accordance with its policy regarding the reimbursement of such
expenses for executives of like stature to you (including travel,
at Studio’s request, [which, in accordance with company
policy, is currently first class], a cellular phone and including
the reimbursement or direct payment of business phone expenses on a
regular basis in accordance with Studio’s policy regarding
the
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reimbursement or payment of such expenses for
executives of like stature to you). Studio will provide you with a
monthly car allowance of One Thousand Dollars ($1,000), which shall
be administered in accordance with Studio’s then-current
policy for similarly situated executives.
7. Indemnification .
You shall be fully indemnified and held harmless by Studio to the
fullest extent permitted by law from any claim, liability, loss,
cost or expense of any nature (including attorney’s fees of
counsel selected by you, judgments, fines, any amounts paid or to
be paid in any settlement, and all costs of any nature) incurred by
you (all such indemnification to be on an “after-tax”
or “gross-up” basis) which arises, directly or
indirectly, in whole or in part out of any alleged or actual
conduct, action or inaction on your part in or in connection with
or related in any manner to your status as an employee, agent,
officer, corporate director, member, manager, shareholder, partner
of, or your provision of services to, Studio or any of its
affiliated entities, or any entity to which you are providing
services on behalf of Studio or which may be doing business with
Studio. To the maximum extent allowed by law, all amounts to be
indemnified hereunder including reasonable attorneys’ fees
shall be promptly advanced by Studio until such time, if ever, as
it is determined by final decision pursuant to Paragraph 24 below
that you are not entitled to indemnification hereunder (whereupon
you shall reimburse Studio for all sums theretofore
advanced).
8. Covenants
.
a. Confidential Information .
You agree that you shall not, during the Employment Term or at any
time thereafter, use for your own purposes, or disclose to, or for
any benefit of any third party, any trade secret or other
confidential information of Studio or any of its affiliates (except
as may be required by law or in the performance of your duties
hereunder consistent with Studio’s policies) and that you
will comply with any confidentiality obligations of Studio known by
you to a third party, whether under agreement or otherwise.
Notwithstanding the foregoing, confidential information shall be
deemed not to include information which (i) is or becomes
generally available to the public other than as a result of a
disclosure by you or any other person who directly or indirectly
receives such information from you or at your direction or
(ii) is or becomes available to you on a non-confidential
basis from a source which you reasonably believe is entitled to
disclose it to you.
b. Studio Ownership . The
results and proceeds of your services hereunder, including, without
limitation, any works of authorship resulting from your services
during your employment and any works in progress, shall be
works-made-for-hire and Studio shall be deemed the sole owner
throughout the universe of any and all rights of whatsoever nature
therein, whether or not now or hereafter known, existing,
contemplated, recognized or developed, with the right to use the
same in perpetuity in any manner Studio determines in its sole
discretion without any further payment to you whatsoever. If, for
any reason, any of such results and proceeds shall not legally be a
work-for-hire and/or there are any rights which do not accrue to
Studio under the preceding sentence, then you hereby irrevocably
assign and agree to assign any and all of your right, title and
interest thereto, including, without limitation, any and all
copyrights, patents, trade secrets, trademarks and/or other rights
of whatsoever nature therein, whether or not now or hereafter
known, existing, contemplated, recognized or developed by Studio,
and Studio shall have the right to use the same in perpetuity
throughout the universe in any manner Studio may deem useful or
desirable to establish or document Studio’s exclusive
ownership of any and all rights in any such results and proceeds,
including, without limitation, the execution of appropriate
copyright and/or patent applications or assignments. To the extent
that you have any rights in the results and proceeds of your
services that cannot be assigned in the manner described above, you
unconditionally and irrevocably waive the enforcement of such
rights. This Paragraph 8.c is subject to, and shall not be deemed
to limit, restrict, or constitute any waiver by Studio of any
rights of ownership to which Studio may be entitled by operation of
law by virtue of Studio or any of its affiliates being your
employer.
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c. Return of Property . All
documents, data, recordings, or other property, whether tangible or
intangible, including all information stored in electronic form,
obtained or prepared by or for you and utilized by you in the
course of your employment with Studio or any of its affiliates
shall remain the exclusive property of Studio. In the event of the
termination of your employment for any reason, and subject to any
other provisions hereof, Studio reserves the right, to the extent
required by law, and in addition to any other remedy Studio may
have, to deduct from any monies otherwise payable to you the
following: (i) the full amount of any specifically determined
debt you owe to Studio or any of its affiliates at the time of or
subsequent to the termination of your employment with Studio, and
(ii) the value of Studio property which you retain in your
possession after the termination of your employment with Studio
following Studio’s written request for such item(s) return
and your failure to return such items within thirty (30) day
of receiving such notice. In the event that the law of any state or
other jurisdiction requires the consent of an employee for such
deductions, this Agreement shall serve as such consent.
d. Promise Not To Solicit .
You will not, during the period of the Employment Term or for the
period ending one (1) year after the earlier of expiration of
the Employment Term or your termination hereunder, induce or
attempt to induce any employees, exclusive consultants, exclusive
contractors or exclusive representatives of Studio (or those of any
of its affiliates) to stop working for, contracting with or
representing Studio or any of its affiliates or to work for,
contract with or represent any of Studio’s (or its
affiliates’) competitors.
9. Incapacity
.
a. In the event you are unable to
perform the services required of you hereunder as a result of a
physical or mental disability and such disability shall continue
for a period of ninety (90) or more consecutive days or an
aggregate of four (4) or more months during any twelve
(12) month period during the term hereof, Studio shall have
the right, at its option and subject to applicable state and
federal law, to terminate your employment hereunder, and Studio
shall only be obligated to pay you (a) 50% of the specified
Base Salary for the remainder of the then current Employment Term,
but not to exceed two (2) years, and (b) any additional
compensation (including, without limitation, any grants of
equity-based compensation made to you on or prior to the date of
termination (it being understood you will not be entitled to
receive any grants of equity-based compensation thereafter) as
determined pursuant to Paragraph 9.b below, car allowance which has
accrued prior to your termination, and expense reimbursement for
expenses incurred prior to your termination) earned by you prior to
the termination of your employment. Notwithstanding the foregoing
sentence, you further will be entitled to continuation of medical,
dental, life insurance, disability, car allowance and financial
counseling benefits (collectively, the “Continued
Benefits”) for a period of twelve (12) months after
termination of your employment pursuant to this paragraph (but not
to exceed the end of the then current Employment Term). With
respect to any Continued Benefits for which you may become eligible
under this Paragraph 9.b or otherwise under this Agreement, if
requested by the Company during any continuation period you shall
elect to treat such Continued Benefits as being provided pursuant
to the applicable provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1986 (“COBRA”) or any similar
applicable federal or state statute. Whenever compensation is
payable to you hereunder, during or with respect to a time when you
are partially or totally disabled and such disability (except for
the provisions hereof) would entitle you to disability income or to
salary continuation payments from Studio according to the terms of
any plan now or hereafter provided by Studio or according to any
policy of Studio in effect at the time of such disability, the
compensation payable to you hereunder shall be inclusive of any
such disability income or salary
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continuation and shall not be in addition
thereto. If disability income is payable directly to you by an
insurance company under an insurance policy paid for by Studio, the
compensation payable to you hereunder shall be inclusive of the
amounts paid to you by said insurance company and shall not be in
addition thereto.
b. Unless otherwise specified in the
Plan or in the agreement evidencing the grant, in each case as of
the date of the grant, after termination of employment your grants
of equity-based compensation will be determined as follows. With
respect to grants having performance-based vesting criteria, your
rights to receive or exercise the awards provided by the grants
will be determined after the end of the performance period
specified in the grant, or satisfaction of such other criteria
pursuant to the Plan, subject to the applicable performance or
other criteria, as if you had continued to remain employed with
Studio throughout such performance period. With respect to grants
having time-based vesting criteria, your rights to receive or
exercise the awards provided by the grants will be determined
promptly following your termination of employment. You will be
entitled to receive or exercise a ratable portion of the amount of
each award determined in the preceding sentence, calculated by
multiplying such amount by a fraction, the numerator of which is
the sum of (i) your actual period of service in months through
the date of termination plus (ii) the lesser of
(A) twelve (12) months or (B) 50% of the remaining
Employment Term in months determined as of the date of termination
(but in no event will the numerator exceed the denominator), and
the denominator of which is the total performance period in months
(for grants having performance-based vesting criteria) or the total
vesting period in months (for grants having time-based vesting
criteria) specified in the grant. To avoid any double-counting, any
part of any equity-based compensation award that has vested in
accordance with the terms of the applicable award agreement shall
be credited against any part of such award that you shall be
entitled to receive or exercise pursuant to the determination set
forth in the proceeding sentence. The balance of such awards will
be forfeited. Subject to this Paragraph 9.b and to the other
terms and conditions of the grants, all Options and any similar
equity-based awards will remain exercisable for the remaining term
of the grant.
10. Death . If you die
prior to the end of the Employment Term, this Agreement shall be
terminated as of the date of death and your beneficiary or estate
shall be entitled to receive (a) your Base Salary accrued to
date and for 12 months thereafter, but not to exceed the end of the
then current Employment Term, (b) equity-based compensation to
be determined in the same manner and at the same time as provided
in Paragraph 9.b, under and in accordance wit
