Exhibit 10.4
STOCKHOLDER AGREEMENT
Among
[HOLDCO LLLP],
M&J K DREAM LIMITED PARTNERSHIP,
THE JK ANNUITY TRUST,
THE MK ANNUITY TRUST,
▇▇▇▇▇▇▇▇▇▇ 1994 IRREVOCABLE TRUST,
▇▇-▇▇, L.P.,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
and
▇▇▇▇▇ ▇▇▇▇▇▇
Dated As Of [ ], 2004
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
Section 1.01. Certain Defined Terms....................................... 1
Section 1.02. Other Definitional Provisions............................... 5
ARTICLE II
Transfer and Conversion of Class B Stock
Section 2.01. Restrictions on Transfer and Conversion of Class B Stock.... 5
Section 2.02. De Minimis Transfers........................................ 6
Section 2.03. Right of First Offer........................................ 6
Section 2.04. Special Call Right.......................................... 7
Section 2.05. Permitted Transferees....................................... 8
Section 2.06. Notice of Transfer.......................................... 8
Section 2.07. Compliance with Transfer Provisions......................... 8
Section 2.08. Legend...................................................... 9
ARTICLE III
Term
Section 3.01. Term........................................................ 9
ARTICLE IV
General Provisions
Section 4.01. Notices..................................................... 9
Section 4.02. Counterparts................................................ 9
Section 4.03. Entire Agreement; No Third Party Beneficiaries.............. 10
Section 4.04. Governing Law............................................... 10
Section 4.05. Severability................................................ 10
Section 4.06. Assignment; Amendments...................................... 10
Section 4.07. Enforcement................................................. 10
Section 4.08. Titles and Subtitles........................................ 11
Section 4.09. Submission to Jurisdiction; Waivers......................... 11
Section 4.10. Certain Actions............................................. 11
i
STOCKHOLDER AGREEMENT, dated as of [ ], 2004, among
[HOLDCO] LLLP, a Delaware limited liability limited
partnership ("Holdco"), M&J K DREAM LIMITED PARTNERSHIP, a
Delaware limited partnership ("M&J K"), THE JK ANNUITY TRUST,
a [ ] grantor retained annuity trust ("JK GRAT"), THE MK
ANNUITY TRUST, a [ ] grantor retained annuity trust ("MK GRAT"
and, together with JK GRAT, the "M&J K GRATs"), ▇▇▇▇▇▇▇▇▇▇
1994 IRREVOCABLE TRUST, a [ ] irrevocable trust (the "1994
Irrevocable Trust"), ▇▇-▇▇, L.P., a Delaware limited
partnership ("▇▇-▇▇"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇.
WHEREAS, DreamWorks L.L.C., a Delaware limited liability company
("DW"), and DreamWorks Animation SKG, Inc., a Delaware corporation (the
"Company"), together with other parties, have entered into a Separation
Agreement dated as of [ ], 2004 (the "Separation Agreement"), providing for the
separation of the animation business (the "Separation") from DW;
WHEREAS, immediately after the Separation, the Company intends to
sell shares of its Class A Common Stock, par value $0.01 per share ("Class A
Stock"), in a public offering (the "Offering");
WHEREAS, immediately following consummation of the Offering, Holdco,
M&J K and ▇▇-▇▇ will own in the aggregate all of the Company's issued and
outstanding Class B Common Stock, par value $0.01 per share ("Class B Stock"
and, together with the Class A Stock and the Company's Class C Common Stock, par
value $0.01 per share, the "Common Stock");
WHEREAS, each of the Stockholders (as defined below) will own Class
B Stock either prior to or following the Final Allocation (as defined below);
and
WHEREAS, each of the parties desires to enter into this Agreement
(as defined below) in order to establish certain rights and obligations of the
parties hereto and their transferees as holders of Common Stock;
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements set forth herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I.
Definitions
Section 1.01. Certain Defined Terms. As used in this Agreement:
"Acquisition Agreement" means an agreement to which the Company is a
party providing for a merger, consolidation, share exchange, tender offer or
similar transaction involving the Company or any of its subsidiaries (i) which
is recommended by the Board at the time it is entered into, (ii) which is
available to all holders of Common Stock and (iii) in which
Equivalent Consideration (as defined in the Charter as in effect at consummation
of the Offering) is offered in respect of each share of Common Stock.
"Agreement" means this Stockholder Agreement, as it may be amended,
supplemented, restated or modified from time to time.
"Beneficial Owner" or "Beneficially Own" has the meaning assigned to
such term in Rule 13d-3 under the Exchange Act and a Person's beneficial
ownership of Common Stock shall be calculated in accordance with the provisions
of such Rule.
"Board" means the Board of Directors of the Company.
"Business Day" means any day that is not a Saturday, a Sunday or
other day on which banks are required or authorized by law to be closed in The
City of New York.
"By-laws" means the By-laws of the Company, as amended or restated
from time to time.
"Charter" means the Restated Certificate of Incorporation of the
Company, as amended or restated from time to time.
"Class B Holder" means any Person who shall hold of record shares of
Class B Stock.
"Control" (including the terms "Controlled By" and "Under Common
Control With") has the meaning assigned to such term in the Charter as in effect
at consummation of the Offering.
"Current Market Value" means, with respect to any security, the
average of the daily closing prices on the principal exchange or market on which
such security may be listed or may trade for such security for the 20
consecutive trading days commencing on the 22nd trading day prior to the date
with respect to which the Current Market Value is being determined. The closing
price for each day shall be the closing price, if reported, or, if the closing
price is not reported, the average of the closing bid and asked prices as
reported by such principal exchange or market.
"De Minimis Transfer" means a Transfer of less than 5,000 shares of
Class A Stock (as such number may be adjusted from time to time to take into
account any stock split, reverse stock split or stock dividend).
"Director" means any member of the Board.
"DW" has the meaning assigned to such term in the recitals hereto.
"DW LLC Agreement" means the Seventh Amended and Restated Limited
Liability Company Agreement of DW, dated as of [ ], 2004, as it may be amended,
supplemented, restated or modified from time to time.
"Estate Planning Vehicle" has the meaning assigned to such term in
the Charter as in effect at the consummation of the Offering.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
2
"Family Group" means, (a) with respect to M&J K and the ▇▇▇▇▇▇▇▇▇▇
Stockholders, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, any Estate Planning Vehicle that is Controlled
by either ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇ and any other Person that is
Controlled by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, in each case, so long as such Person continues
to be so Controlled and (b) with respect to ▇▇-▇▇ and the Geffen Stockholders,
▇▇▇▇▇ ▇▇▇▇▇▇ and any other Person that is Controlled by ▇▇▇▇▇ ▇▇▇▇▇▇, in each
case, so long as such Person continues to be so Controlled.
"Final Allocation" has the meaning assigned to such term in the
Holdco LLLP Agreement.
"Formation Agreement" means the Formation Agreement, dated as of [
], 2004, among the Company, DW, Holdco, [GE], ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and the Holdco partners party thereto, as
it may be amended, supplemented, restated or modified from time to time.
"Geffen Stockholders" means ▇▇-▇▇ and any other Family Group member
of ▇▇-▇▇ that becomes a Class B Holder, in each case, for so long as it is both
a Class B Holder and a Family Group member.
"Group" has the meaning assigned to such term in Section 13(d)(3) of
the Exchange Act.
"Holdco LLLP Agreement" means the limited liability limited
partnership agreement of Holdco, dated as of [ ], 2004, as it may be amended,
supplemented, restated or modified from time to time.
"Involuntary Conversion" means a conversion pursuant to Section
2(f)(vii) of Article IV of the Charter which results from [the death of a
Principal or a judgment of a governmental entity or other involuntary action].
"▇▇▇▇▇▇▇▇▇▇ Employment Agreement" means the Employment Agreement,
dated as of [ ], 2004, between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and the Company, as it may be
amended, supplemented, restated or modified from time to time.
"▇▇▇▇▇▇▇▇▇▇ Stockholders" means M&J K and any other Family Group
member of M&J K that becomes a Class B Holder, in each case, for so long as it
is both a Class B Holder and a Family Group member.
"Permitted Pledge" means a bona fide pledge of Common Stock to a
financial institution to secure bona fide recourse borrowings so long as (i) the
pledgor notifies the Company and each Class B Holder of its intention to enter
into such pledge at least 5 days prior thereto, (ii) the pledgor retains the
sole right to vote and act by written consent with respect to the pledged Common
Stock and (iii) in the case of a pledge of Class B Stock, the pledgee agrees in
writing with the pledgor in an agreement that expressly provides that (w) each
Principal Holder is a third party beneficiary thereof, entitled to enforce such
agreement directly against the pledgee, (x) such agreement cannot be amended or
modified without the prior written consent of each Principal Holder, (y) any
Transfer of the pledged Common Stock (by foreclosure, by operation of law or
otherwise) shall first be subject to the right of first offer provisions of
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Section 2.03 and (z) if any such right of first offer is exercised, the pledgee
shall release its lien on the pledged Common Stock upon payment of the purchase
price therefor directly to the pledgee (it being agreed that each Class B Holder
who pledges any Class B Stock hereby authorizes payment in such manner),
regardless of whether the purchase price is sufficient to discharge the debt
secured by the pledge.
"Permitted Transfer" means (i) the entry into an agreement to vote,
consent, grant a proxy or power of attorney or the execution of a written
consent, proxy or power of attorney, in each case, in favor of any Person that
has entered into an Acquisition Agreement providing for shares of Common Stock
to be voted in favor of or consenting to the transactions contemplated in the
Acquisition Agreement and against actions that would frustrate or prevent such
transactions, (ii) the entry into a contract, option or other arrangement or
understanding with any Person that has entered into an Acquisition Agreement
providing for an option to purchase shares of Common Stock or a profit-sharing
relating to the sale of shares of Common Stock, provided, however, that the
consummation of any such option or profit-sharing shall not constitute a
Permitted Transfer, (iii) delivery of a revocable proxy or a written consent to
(A) the Chief Executive Officer or other officer specified by the Company in
connection with a proxy or consent solicitation by the Company or (B) a
Principal Holder in connection with a proxy or consent solicitation by a
Principal Holder or in which a Principal Holder is a participant, (iv) the
pledge of the Pledged Common Stock pursuant to the Pledge Documents and any
Pledged Share Event and (v) a Permitted Pledge.
"Person" has the meaning assigned to such term in the Charter (as
modified in Section 2(f) of Article IV thereof) as in effect at consummation of
the offering.
"Pledge Documents" means [ ].
"Pledged Common Stock" means, at any time, the shares of Common
Stock then pledged as collateral for the Revolving Credit Facility.
"Pledged Share Event" means, with respect to any Stockholder, a
conversion and Transfer of shares of Pledged Common Stock pursuant to a
foreclosure under the applicable pledge agreement between such Stockholder and
the lenders under DW's revolving credit facility (or any refinancing thereof).
"Principal" means either of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇.
"Principal Holder" means any Person other than DW and Holdco, for so
long as (x) such Person shall hold of record shares of Class B Stock and is not
required to convert all of such shares into Class A Stock under the Vulcan
Stockholder Agreement and (y) such Person is either a Principal or one or more
Principals shall Control such Person.
"Private Placement" means one or a series of related privately
negotiated Transfers to any Person or Transfers to any Person that is exempt
from registration under the Securities Act pursuant to Rule 144A or Regulation S
under the Securities Act or any similar provisions under U.S. or foreign law.
"Revolving Credit Facility" means the revolving credit facility,
dated as of [ ], 2004, among DW and the lenders party thereto (or any
refinancing thereof that does not extend the term thereof).
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Separation Date" has the meaning assigned to such term in the
Separation Agreement.
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"Stockholder" means Holdco, the ▇▇▇▇▇▇▇▇▇▇ Stockholders and the
Geffen Stockholders.
"Transfer" means, directly or indirectly, (i) to sell, transfer,
assign or similarly dispose of, whether voluntarily, involuntarily or by
operation of law, (ii) to enter into an agreement (other than this Agreement,
the Vulcan Stockholder Agreement, the Formation Agreement, the DW LLC Agreement
and the Holdco LLLP Agreement) to vote, consent, grant a proxy or power of
attorney or deposit shares into a voting trust, or the execution of a written
consent, the grant of a proxy or power of attorney or the deposit of shares into
a voting trust or (iii) to enter into a contract, option or other arrangement or
understanding that upon consummation or foreclosure would effect a sale,
transfer, assignment or similar disposition, other than, in each case, a
Permitted Transfer.
"Unrestricted Transfer" means (i) a De Minimis Transfer, (ii) a
Transfer to Holdco permitted or required under the Formation Agreement or a
Transfer by Holdco permitted or required under the Holdco LLLP Agreement
(including Transfers in accordance with the Final Allocation), (iii) a Pledged
Share Event, (iv) a Transfer by ▇▇-▇▇ of Class A Stock to a charitable
foundation, a charity or a not-for-profit organization, (v) a Transfer to any
other Class B Holder that is a Principal Holder, (vi) a Transfer to any
Principal, (vii) a Transfer to a Family Group member, so long as the transferee
is or becomes a party to this Agreement and the Vulcan Stockholder Agreement
and, after giving effect to the Transfer, would be a Principal Holder, (viii) a
Transfer pursuant to an Acquisition Agreement or (ix) a Transfer pursuant to a
Permitted Tender Offer (as defined in the Charter as in effect at consummation
of the offering).
"Vulcan Stockholder Agreement" means the Stockholder Agreement,
dated as of [ ], 2004, among the Company, Holdco, M&J K, the M&J K GRATs, the
1994 Irrevocable Trust, ▇▇-▇▇, [Vulcan], ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇ as it may be amended, supplemented, restated or modified from time to
time.
Section 1.02. Other Definitional Provisions. (a) The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Article and Section references are to this Agreement unless
otherwise specified. The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation".
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
ARTICLE II
Transfer and Conversion of Class B Stock
Section 2.01. Restrictions on Transfer and Conversion of Class B
Stock. (a) Without the prior written consent of each Principal Holder, each
Stockholder agrees not to:
(i) Transfer, other than pursuant to Section 2.03 (or Section 2.04,
if applicable), any shares of Class B Stock (or shares of Class A Stock
into which such shares of Class
5
B Stock have been converted) held of record by such Stockholder, except,
subject to Section 2.01(b) and Section 2.01(c), an Unrestricted Transfer;
or
(ii) convert any shares of Class B Stock held of record by such
Stockholder into shares of Class A Stock, except (x) subject to Section
2.01(b) and Section 2.01(c), pursuant to an Unrestricted Transfer and (y)
in the case of an Involuntary Conversion, subject to compliance with
Section 2.04.
(b) Notwithstanding Section 2.01(a) or Section 2.02, for so long as
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is the Chief Executive Officer of the Company, without the
prior written consent of the ▇▇▇▇▇▇▇▇▇▇ Stockholders, the Geffen Stockholders
agree not to convert any shares of Class B Stock or Transfer any shares of
Common Stock held of record by them (other than in connection with an
Unrestricted Transfer pursuant to clause (viii) or (ix) of the definition of
"Unrestricted Transfer") if such conversion or Transfer would result in the
Voting Power (as defined in the Charter as in effect at consummation of the
Offering) of the Common Stock held of record by the Geffen Stockholders,
including shares held of record by Holdco on behalf of the Geffen Stockholders
(after giving effect to such conversion or Transfer), together with the Voting
Power of the Common Stock then held of record by the ▇▇▇▇▇▇▇▇▇▇ Stockholders
immediately after the Final Allocation, including shares held of record by
Holdco on behalf of the ▇▇▇▇▇▇▇▇▇▇ Stockholders (disregarding any Transfers by
the ▇▇▇▇▇▇▇▇▇▇ Stockholders prior to such time) plus any additions thereto,
falling below 51% of the Voting Power of all classes of the Company's Voting
Stock (as defined in the Charter as in effect at consummation of the Offering).
(c) Notwithstanding Section 2.01(b) above, each Stockholder agrees
that upon any permitted conversion or Transfer of Common Stock held of record by
the ▇▇▇▇▇▇▇▇▇▇ Stockholders (other than to another ▇▇▇▇▇▇▇▇▇▇ Stockholder), the
Geffen Stockholders may, at any time thereafter, convert and/or Transfer Common
Stock representing up to the same percentage of the Total Voting Power as had
been converted or Transferred by the ▇▇▇▇▇▇▇▇▇▇ Stockholders prior to such time.
Section 2.02. De Minimis Transfers. Following the date that is one
year after consummation of the Offering or, if later, following the Final
Allocation, subject to Section 2.01(b) and Section 2.01(c) and applicable
securities laws and any applicable lock-up agreements entered into in connection
with any underwritten offering of Class A Stock, each Stockholder shall be
entitled to make one or more De Minimis Transfers; provided, however, that with
respect to any Stockholder, the aggregate number of shares of Class A Stock
Transferred pursuant to De Minimis Transfers by such Stockholder during any
three month period shall not exceed [ ].
Section 2.03. Right of First Offer. (a) Except as otherwise provided
in Section 2.01, any Transfer or conversion (other than an Involuntary
Conversion) of shares of Class B Stock will be subject to the right of first
offer provisions of this Section 2.03.
(b) Prior to effecting any Transfer or conversion (other than an
Involuntary Conversion) of shares of Class B Stock, the transferring Stockholder
shall deliver a written notice (the "Offer Notice") to each Principal Holder,
which Offer Notice shall specify (i) the number of shares of Common Stock
intended to be Transferred or converted and (ii) if applicable, the Specified
Price (as defined below). The Offer Notice shall constitute an irrevocable offer
to such non-transferring Principal Holders, for the period of time described
6
below, to sell to such non-transferring Principal Holders all (but not less than
all) of such Common Stock (allocated among such non-transferring Principal
Holders as they may agree, or if they shall not otherwise agree, allocated pro
rata among such non-transferring Principal Holders based on the number of shares
held of record) at (i) the price set by the transferring Stockholder in the
Offer Notice (the "Specified Price"), in the case of a proposed private
placement, (ii) the Current Market Value as of the Specified Date (as defined in
the Vulcan Stockholder Agreement), in the case of a mandatory conversion
pursuant to Section 3.02(a) of the Vulcan Stockholder Agreement or (iii) the
Current Market Value as of the date of the Offer Notice, in all other cases.
(c) If such non-transferring Principal Holders elect to purchase all
of the offered Class B Stock at the price described in Section 2.03(b), they
shall give joint irrevocable notice thereof to the transferring Stockholder
within five Business Days of their receipt of the Offer Notice. If such
non-transferring Principal Holders shall deliver such a notice, it shall
constitute a binding obligation, subject to obtaining any governmental and other
similar required approvals, to purchase the offered Class B Stock, which notice
shall include the date set for the closing of such purchase, which date shall be
no later than 30 days following the delivery of such election notice, subject to
extension to the extent necessary to obtain any required antitrust or other
required governmental approvals, which the transferring Stockholder and such
non-transferring Principal Holders shall use their respective reasonable best
efforts to obtain as promptly as practicable (the "Determination Date"). To the
extent that the closing of any such purchase has not occurred by the
Determination Date, the transferring Stockholder may terminate the relevant
agreement to sell the Class B Stock to such non-transferring Principal Holders
and sell the Class B Stock in the form of Class A Stock (with conversion
effected immediately prior to Transfer) or convert the Class B Stock, as
applicable.
(d) If such non-transferring Principal Holders do not respond to the
Offer Notice within the required response time period or elect not to purchase
the offered Class B Stock, the transferring Stockholder shall be free to
Transfer the offered Class B Stock in the form of Class A Stock (with conversion
effected immediately prior to Transfer) or convert the Class B Stock, as
applicable; provided, however, that in the case of a Transfer (x) such Transfer
is closed within 60 days from the date of the Offer Notice, subject to extension
to the extent necessary to obtain required governmental approvals and other
required approvals, which the transferring Stockholder and such non-transferring
Principal Holders shall use their respective reasonable best efforts to obtain
as promptly as practicable and (y) the per share price at which the Class A
Stock or Class B Stock, as applicable, is Transferred is equal to or higher than
the Specified Price, in the case of a Private Placement.
Section 2.04. Special Call Right. (a) Immediately following (i) any
Involuntary Conversion of shares of Class B Stock into shares of Class A Stock
or (ii) the Final Allocation, if there shall have occurred prior to the Final
Allocation any event which (x) would have caused an Involuntary Conversion with
respect to the shares of Class B Stock which the applicable Principal Holder
would have been entitled to receive pursuant to the Holdco LLLP Agreement and
(y) resulted in the conversion of such shares into shares of Class A Stock, in
each case, such shares of Class A Stock will be subject to the special call
right provisions of this Section 2.04.
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(b) Following any event described in clause (i) or (ii) of Section
2.04(a), the remaining Principal Holders shall have the right to purchase, and
if such right is exercised, the holder of such shares of Class A Stock (the
"Converting Holder") shall be obligated to sell, all or a portion of such shares
of Class A Stock for cash in an amount equal to the Current Market Value of such
shares of Class A Stock as of the date of the Call Notice (as defined below). If
any remaining Principal Holder(s) elect to purchase such Class A Stock at the
price described in the immediately preceding sentence, such Principal Holder(s)
shall give joint irrevocable notice thereof (the "Call Notice") to the
Converting Holder within 5 days of the date of such Involuntary Conversion or
the Final Allocation, as applicable (such period being the "Call Period"), which
Call Notice shall specify the number of shares of Class A Stock intended to be
purchased and shall give rise to an obligation of the Converting Holder to sell
all or such portion of such Class A Stock to such Principal Holder(s) (allocated
among such Principal Holders as they may agree, or if they shall not otherwise
agree, allocated pro rata among such Principal Holders based on the number of
shares held of record). In addition, the Call Notice shall include the date set
for the closing of such purchase, which date shall be no later than 30 days
following the delivery of such Call Notice, subject to extension to the extent
necessary to obtain any required antitrust or other required governmental
approvals, which the Converting Holder and such Principal Holders shall use
their respective reasonable best efforts to obtain as promptly as practicable
(the "Special Determination Date"). To the extent that the closing of any such
purchase has not occurred by the Special Determination Date, the Converting
Holder shall not be obligated to sell such Class A Stock to such Principal
Holders.
(c) During the Call Period, the Converting Holder shall not Transfer
such Class A Stock other than pursuant to a Call Notice. If the remaining
Principal Holders do not deliver the Call Notice during the Call Period, the
Converting Holder shall not be obligated to offer or sell such shares of Class A
Stock to the remaining Principal Holders.
Section 2.05. Permitted Transferees. Any Family Group member that
becomes a record holder of Common Stock shall be subject to the terms and
conditions of this Agreement. Prior to the initial acquisition of record
ownership of any Common Stock by any Family Group member, and as a condition
thereto, the transferring holder agrees to cause such Family Group member to
agree in writing with the Company to be bound by the terms and conditions of
this Agreement. To the extent a Family Group member which holds of record Common
Stock ceases to qualify as a Family Group member, such Person shall be shall be
deemed to have Transferred the Common Stock held by it upon so ceasing to
qualify and such Transfer shall be subject to the transfer restrictions of
Section 2.01, to the extent applicable to a Transfer of Common Stock.
Section 2.06. Notice of Transfer. To the extent any Stockholder
proposes to Transfer any Common Stock, such Stockholder shall, prior to
consummation of such Transfer, deliver notice thereof to the other Stockholders
stating the number (and class) of shares to be Transferred, the identity of the
transferee and the manner of Transfer.
Section 2.07. Compliance with Transfer Provisions. Any Transfer or
attempted Transfer of Common Stock in violation of any provision of this
Agreement shall be void as set forth in the Vulcan Stockholder Agreement.
8
Section 2.08. Legend. (a) During the term of this Agreement, each
certificate evidencing Common Stock held of record or Beneficially Owned by a
Stockholder shall bear the following legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AND
TRANSFERABLE ONLY UPON COMPLIANCE WITH THE PROVISIONS OF A
STOCKHOLDER AGREEMENT, DATED AS OF [ ], 2004, AMONG [HOLDCO] LLLP,
M&J K DREAM LIMITED PARTNERSHIP, THE JK ANNUITY TRUST, THE MK
ANNUITY TRUST, ▇▇▇▇▇▇▇▇▇▇ 1994 IRREVOCABLE TRUST, ▇▇-▇▇, L.P.,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇▇▇. A COPY OF SUCH STOCKHOLDER
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF DREAMWORKS ANIMATION
SKG, INC. AT GRANDVIEW BUILDING, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇."
(b) Upon a Person ceasing to have rights and obligations under this
Agreement pursuant to the terms hereof or upon termination of this Agreement,
such Person may surrender to the Company any certificates held of record by such
Person and bearing the legend set forth in Section 2.08(a), and upon surrender
of such certificates, the Company shall reissue such certificates without such
legend as set forth in the Vulcan Stockholder Agreement.
ARTICLE III
Term
Section 3.01. Term. This Agreement shall become effective on the
Separation Date and shall continue in effect until the date that all outstanding
shares of Class B Stock have been converted to Class A Stock in accordance with
the terms of this Agreement; provided, however, that except as otherwise
provided in Section 2.04, the rights and obligations of each Stockholder
hereunder shall terminate upon the date on which such Stockholder ceases to hold
of record any shares of Class B Stock in accordance with the terms of this
Agreement.
ARTICLE IV
General Provisions
Section 4.01. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed duly given and received (a) on
the date of delivery if delivered personally, or by facsimile upon confirmation
of transmission by the sender's fax machine if sent on a Business Day (or
otherwise on the next Business Day) or (b) on the first Business Day following
the date of dispatch if delivered by a recognized next-day courier service. All
notices hereunder shall be delivered to the address of the applicable
Stockholder specified on the signature page hereto, or pursuant to such other
instructions as may be designated in writing by the party to receive such
notice.
Section 4.02. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become
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effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need
not sign the same counterpart.
Section 4.03. Entire Agreement; No Third Party Beneficiaries. (a)
This Agreement constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof, other than the Vulcan Stockholder
Agreement, the Charter and the By-laws of the Company.
(b) 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 or shall confer upon any other Person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
Section 4.04. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York without giving
effect to applicable principles of conflict of laws, except to the extent the
substantive laws of the State of Delaware are mandatorily applicable under
Delaware law.
Section 4.05. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term 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 in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
Section 4.06. Assignment; Amendments. (a) Except as provided in
Section 2.05, neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto, in whole
or in part (whether by operation of law or otherwise), without the prior written
consent of the other parties, and any attempt to make any such assignment
without such consent shall be null and void. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of and be enforceable
by, the parties and their respective successors (including any executor or
administrator of a party's estate) and permitted assigns.
(b) No amendment to this Agreement shall be effective unless it
shall be in writing and signed by each Stockholder.
Section 4.07. Enforcement. (a) Each Stockholder acknowledges that
the other parties would not have an adequate remedy at law for money damages in
the event that any of the covenants or agreements of any of the other parties in
this Agreement were not performed in accordance with its terms, and it is
therefore agreed that each Stockholder, in addition to and without limiting any
other remedy or right it may have, will have the right to an injunction or other
equitable relief in any court of competent jurisdiction, enjoining any such
actual or
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potential breach and enforcing specifically the terms and provisions hereof, and
each Stockholder hereby waives (i) any and all defenses it may have on the
ground of lack of jurisdiction or competence of the court to grant such an
injunction or other equitable relief and (ii) the need to post any bond that may
be required in connection with the granting of such an injunction or other
equitable relief.
(b) 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 or beginning of the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
Section 4.08. Titles and Subtitles. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
Section 4.09. Submission to Jurisdiction; Waivers. With respect to
any suit, action or proceeding relating to this Agreement (collectively, a
"Proceeding"), each party to this Agreement irrevocably (a) consents and submits
to the exclusive jurisdiction of the courts of the States of New York and the
Court of Chancery of the State of Delaware and any court of the United States
located in the Borough of Manhattan in New York City; (b) waives any objection
which such party may have at any time to the laying of venue of any Proceeding
brought in any such court, waives any claim that such Proceeding has been
brought in an inconvenient forum and further waives the right to object, with
respect to such Proceeding, that such court does not have jurisdiction over such
party; (c) consents to the service of process at the applicable address set
forth for notices on the signature page hereto; provided, however, that such
manner of service of process shall not preclude the service of process in any
other manner permitted under applicable law; and (d) waives, to the fullest
extent permitted by applicable law, any and all rights to trial by jury in
connection with any Proceeding.
Section 4.10. Certain Actions. Actions taken by the Principals and
their Family Groups pursuant to and in accordance with this Agreement shall be
taken solely in their capacity as stockholders of the Company and not in any
capacity as a director, officer, employee, member, consultant, manager or
partner, as applicable, of the Company, Holdco or DW.
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IN WITNESS WHEREOF, Holdco, M&J K, the M&J K GRATs, the 1994
Irrevocable Trust, ▇▇-▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ have duly executed
this Stockholder Agreement as of the date first written above.
[HOLDCO LLLP],
By ______________________________________
Name:
Title:
Address:
M&J K DREAM LIMITED PARTNERSHIP,
By M&J K DREAM CORP.,
General Partner
By ___________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
Address:
THE JK ANNUITY TRUST,
By ______________________________________
Name:
Title: Trustee
Address:
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THE MK ANNUITY TRUST,
By ______________________________________
Name:
Title: Trustee
Address:
▇▇▇▇▇▇▇▇▇▇ 1994 IRREVOCABLE TRUST,
By ______________________________________
Name:
Title: Trustee
Address:
▇▇-▇▇, L.P.,
By ▇▇-▇▇, INC.,
General Partner
By ___________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
Address:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
______________________________________
Address:
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▇▇▇▇▇ ▇▇▇▇▇▇
______________________________________
Address:
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