Exhibit 10.3
FORMATION AGREEMENT
Among
DREAMWORKS ANIMATION SKG, INC.,
DREAMWORKS L.L.C.,
[HOLDCO] LLLP
and
THE STOCKHOLDERS AND OTHER PERSONS PARTY HERETO
Dated As Of [ ], 2004
TABLE OF CONTENTS
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ARTICLE I
Definitions
Section 1.01. Certain Defined Terms.............................................................................. 1
Section 1.02. Other Definitional Provisions...................................................................... 6
ARTICLE II
Distribution and Contribution; Holdco Transactions
Section 2.01. Contributions and Redemptions of Preferred Interests; Distribution of DWA LLC Interests;
Execution of LLC Agreement..................................................................... 6
Section 2.02. Contribution of the DWA LLC Interests to the Company; Issuance of Common Stock by the Company...... 7
Section 2.03. Formation of Holdco; Contribution of Common Stock to Holdco........................................ 7
ARTICLE III
Follow-on Offering
Section 3.01. Initial Follow-on Offering......................................................................... 8
Section 3.02. Pricing Period..................................................................................... 8
Section 3.03. Subsequent Follow-on Offering...................................................................... 9
Section 3.04. Registration Rights................................................................................ 9
Section 3.05. Size of Follow-on Offering......................................................................... 10
Section 3.06. Anti-Manipulation.................................................................................. 10
ARTICLE IV
Universal/Thomson Triggered Offering
Section 4.01. Universal/Thomson Triggered Offering............................................................... 11
ARTICLE V
Additional Agreements; Further Assurances
Section 5.01. Certain Holdco Expenses............................................................................ 12
Section 5.02. Further Assurances................................................................................. 12
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ARTICLE VI
Representations and Warranties; Indemnification
Section 6.01. Representations and Warranties of Each Party....................................................... 13
Section 6.02. Tax Representation................................................................................. 14
Section 6.03. Representation and Warranty of the Company......................................................... 14
Section 6.04. Survival........................................................................................... 14
Section 6.05. Indemnification.................................................................................... 14
ARTICLE VII
General Provisions
Section 7.01. Notices............................................................................................ 16
Section 7.02. Counterparts....................................................................................... 16
Section 7.03. Entire Agreement; No Third Party Beneficiaries..................................................... 17
Section 7.04. Governing Law...................................................................................... 17
Section 7.05. Severability....................................................................................... 17
Section 7.06. Assignment; Amendments............................................................................. 17
Section 7.07. Enforcement........................................................................................ 18
Section 7.08. Titles and Subtitles............................................................................... 18
Section 7.09. Submission to Jurisdiction; Waivers................................................................ 18
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FORMATION AGREEMENT, dated as of [ ], 2004, among
DREAMWORKS ANIMATION SKG, INC., a Delaware corporation (the
"Company"), DREAMWORKS L.L.C., a Delaware limited liability
company ("DW"), [HOLDCO] LLLP, a Delaware limited liability
limited partnership ("Holdco"), and the stockholders and other
persons party hereto.
WHEREAS, DW, the Company and DreamWorks Animation L.L.C., a Delaware
limited liability company ("DWA LLC"), have entered into a Separation Agreement
dated as of the date hereof, providing for the separation of the animation
business from DW;
WHEREAS, DW has determined to make a distribution-in-kind to its
members (in accordance with Article VIII of the Sixth Amended and Restated
Limited Liability Company Agreement of DW) of its 99% interest in DWA LLC;
WHEREAS, the DWA LLC interests to be distributed must be contributed
to the Company in exchange for Common Stock (as defined below);
WHEREAS, each Contributing Member (as defined below) desires to form
Holdco and to contribute its shares of Common Stock, other than the IPO Sale
Shares (as defined below) and other than as set forth in Section 2.03, to Holdco
in exchange for partnership interests in Holdco;
WHEREAS, the Contributing Members desire to provide for the sale, in
a follow-on secondary offering, of all or a portion of the shares of Common
Stock held by the Contributing Members and the shares of Common Stock
contributed to Holdco by the Contributing Members; and
WHEREAS, the Company, Holdco and certain other parties hereto have
entered into a Registration Rights Agreement, dated as of the date hereof (the
"Registration Rights Agreement"), that, among other things, provides for certain
procedures with respect to the Follow-on Offering (as defined below);
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:
"Agreement" means this Formation Agreement, as it may be amended,
supplemented, restated or modified from time to time.
"Amended 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.
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"Asserted Liability" has the meaning assigned to such term in
Section 6.05(d).
"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.
"Charter" means the Restated Certificate of Incorporation of the
Company, as amended or restated from time to time.
"Claims" has the meaning assigned to such term in Section 6.05(a).
"Claims Notice" has the meaning assigned to such term in Section
6.05(d).
"Class A Stock" means the Company's Class A Common Stock, par value
$0.01 per share.
"Class B Stock" means the Company's Class B Common Stock, par value
$0.01 per share.
"Class C Stock" means the Company's Class C Common Stock, par value
$0.01 per share.
"Class B Stockholder Agreement" means the Stockholder Agreement,
dated as of [ ], 2004, among Holdco, M&J K, The JK Annuity Trust, The MK Annuity
Trust, ▇▇▇▇▇▇▇▇▇▇ 1994 Irrevocable Trust, ▇▇-▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇, as in effect on the date hereof.
"Class T/T Interests" means Class T/T limited liability company
interests in DW.
"Class U Interests" means Class U limited liability company
interests in DW.
"Common Stock" means the Class A Stock, Class B Stock and Class C
Stock.
"Company" has the meaning assigned to such term in the preamble
hereto.
"Contribution" has the meaning assigned to such term in Section
2.02.
"Contributing Members" means M&J K, [The JK Annuity Trust], [The MK
Annuity Trust], ▇▇-▇▇, DW Lips, [Vulcan affiliate], ▇▇▇ Entertainment, L.L.C.,
Universal and Thomson.
"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 IPO.
"▇▇-▇▇" means ▇▇-▇▇, L.P., a Delaware limited partnership.
"DW" has the meaning assigned to such term in the preamble hereto.
"DW Distribution" has the meaning assigned to such term in Section
2.01.
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"DWA LLC" has the meaning assigned to such term in the recitals
hereto.
"DWA LLC Interest" means a limited liability company interest in DWA
LLC.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended, together with the rules and regulations promulgated thereunder.
"Final Allocation" has the meaning assigned to such term in the
Holdco Partnership Agreement as in effect on the Separation Date.
"Follow-on Offering" means either the Initial Follow-on Offering or
the Subsequent Follow-on Offering, as applicable.
"Group" has the meaning assigned to such term in Section 13(d)(3) of
the Exchange Act.
"Holdco" has the meaning assigned to such term in the preamble
hereto.
"Holdco Contribution" has the meaning assigned to such term in
Section 2.03.
"Holdco Obligations" has the meaning assigned to such term in
Section 5.01(b).
"Holdco Partnership Agreement" means the Limited Liability Limited
Partnership Agreement of Holdco, dated as of [ ], 2004, among the Contributing
Members, as in effect on the Separation Date.
"Indemnitee" has the meaning assigned to such term in Section
6.05(d).
"Indemnitor" has the meaning assigned to such term in Section
6.05(d).
"Initial Follow-on Offering" has the meaning assigned to such term
in Section 3.01(a).
"Initial Period" has the meaning assigned to such term in Section
3.01(a).
"IPO" means the initial public offering by the Company and the
selling stockholders identified in the IPO Registration Statement of shares of
Class A Stock pursuant to the IPO Registration Statement.
"IPO Price" means the gross public offering price per share
(calculated before deduction of any underwriting discounts or commissions) in
the IPO.
"IPO Registration Statement" means the registration statement on
Form S-1 (File No. 333-117528) filed under the Securities Act, pursuant to which
the Class A Stock to be issued in the IPO will be registered, together with all
amendments thereto.
"IPO Sale Shares" means, with respect to any Contributing Member,
the number of shares of Class A Stock to be sold in the IPO for the account of
such Contributing Member pursuant to the IPO Registration Statement.
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"JK/DG Trigger Notice" has the meaning assigned to such term in
Section 3.01(a).
"JK/DG Triggered Follow-on Offering" means an Initial Follow-on
Offering initiated by M&J K and ▇▇-▇▇, acting together, pursuant to Section
3.01(a) or converted to such pursuant to Section 3.01(b).
"Liens" has the meaning assigned to such term in Section 6.01.
"Losses" has the meaning assigned to such term in Section 6.05(a).
"M&J K" means M&J K Dream Limited Partnership, a Delaware limited
partnership.
"Member" means each member of DW.
"Minimum Registrable Amount" has the meaning assigned to such term
in Section 3.05.
"Parent" means each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, GE, [others].
"Participating Partner" has the meaning assigned to such term in the
Holdco Partnership Agreement.
"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 IPO.
"Preferred Contributions" has the meaning assigned to such term in
Section 2.01(a).
"Preferred Redemptions" has the meaning assigned to such term in
Section 2.01(a).
"Pricing Period" means the 20 consecutive trading days on The New
York Stock Exchange beginning on the date specified in the Pricing Period
Notice.
"Pricing Period Notice" has the meaning assigned to such term in
Section 3.02(a).
"Pricing Period Price" has the meaning assigned to such term in
Section 3.02(b).
"Proceeding" has the meaning assigned to such term in Section 7.09.
"Registration Rights Agreement" has the meaning assigned to such
term in the recitals hereto.
"Satisfaction Event" has the meaning assigned to such term in the
Holdco Partnership Agreement.
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"Securities Act" means the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"Separation Agreement" means the Separation Agreement, dated as of [
], 2004, among DW, DWA LLC and the Company, as it may be amended, supplemented,
restated or modified from time to time.
"Separation Date" has the meaning assigned to such term in the
Separation Agreement.
"Subsequent Follow-on Offering" has the meaning assigned to such
term in Section 3.03(a).
"Subsequent Period" has the meaning assigned to such term in Section
3.03(a).
"Subsequent Vulcan Trigger Notice" has the meaning assigned to such
term in Section 3.03(a).
"Thomson" means Thomson Inc.
"Universal" means Vivendi Universal Entertainment LLLP.
"Universal/Thomson Period" has the meaning assigned to such term in
Section 4.01(a).
"Universal/Thomson Trigger Notice" has the meaning assigned to such
term in Section 4.01(a).
"Universal/Thomson Triggered Offering" has the meaning assigned to
such term in Section 4.01(a).
"Volume Weighted Average Price" over any period means, with respect
to the Class A Stock, the volume weighted average price per share for the entire
applicable period on the principal national securities market or exchange on
which the Class A Stock is listed or quoted.
"Vulcan" means [ ], a [ ].
"Vulcan Stockholder Agreement" means the Stockholder Agreement,
dated as of [ ], 2004, among the Company, Holdco, M&J K, The JK Annuity Trust,
The MK Annuity Trust, ▇▇▇▇▇▇▇▇▇▇ 1994 Irrevocable Trust, ▇▇-▇▇, Vulcan, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, as it may be amended, supplemented,
restated or modified from time to time.
"Vulcan Trigger Notice" has the meaning assigned to such term in
Section 3.01(a).
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"Vulcan Triggered Follow-on Offering" means an Initial Follow-on
Offering initiated by Vulcan pursuant to Section 3.01(a) unless converted into a
JK/DG Triggered Follow-on Offering pursuant to Section 3.01(b).
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
Distribution and Contribution; Holdco Transactions
Section 2.01. Contributions and Redemptions of Preferred Interests;
Distribution of DWA LLC Interests; Execution of LLC Agreement. (a) On the
Separation Date, immediately after consummation of the transactions contemplated
in Section 2.01 of the Separation Agreement, (x) Thomson shall contribute 50% of
the Class T/T Interests to the Company in exchange for the number of shares of
Common Stock set forth on Schedule 2.02 and (y) Universal shall contribute 50%
of the Class U Interests to the Company in exchange for the number shares of
Common Stock set forth on Schedule 2.02 (the "Preferred Contributions").
Immediately after consummation of the Preferred Contributions, DW shall redeem
such Class T/T Interests and such Class U Interests from the Company in exchange
for [ ] (the "Preferred Redemptions"). DW acknowledges that it intends to treat
the Preferred Redemptions as a liquidating distribution with respect to the
Class T/T Interests and Class U Interests so redeemed and shall report the
Preferred Redemptions as such under Section 732(b) of the Internal Revenue Code.
(b) On the Separation Date, immediately after consummation of the
Preferred Redemptions, DW shall distribute (in accordance with Article VIII of
the Sixth Amended and Restated Limited Liability Company Agreement of DW) all
its right, title and interest in and to the DWA LLC Interests held directly by
DW to the Members listed on Schedule 2.01(b) hereto, in the amounts set forth on
Schedule 2.01(b) (the "DW Distribution").
(c) On the Separation Date, immediately after consummation of the DW
Distribution, the Members shall execute and deliver the Amended LLC Agreement.
(d) On the Separation Date, immediately after consummation of the DW
Distribution, each Member (other than Universal and Thomson) shall execute and
deliver a pledge agreement in favor of the lenders under DW's revolving credit
facility, which pledge agreements shall provide for the pledge of Common Stock
having an aggregate value of $300 million, allocated pro rata among such Members
in proportion to their DreamWorks Participation Percentages (as defined in the
Holdco Partnership Agreement).
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Section 2.02. Contribution of the DWA LLC Interests to the Company;
Issuance of Common Stock by the Company. On the Separation Date, immediately
after consummation of the DW Distribution, each Member (or [the Vulcan
affiliate], in the case of Vulcan) shall contribute all its right, title and
interest in and to the DWA LLC Interests to the Company in exchange for the
number of shares of Class A Stock, Class B Stock or Class C Stock, as
applicable, set forth on Schedule 2.02 (the "Contribution"). The Company hereby
acknowledges that it intends to continue the existence of DWA LLC as a
partnership for Federal income tax purposes.
Section 2.03. Formation of Holdco; Contribution of Common Stock to
Holdco. (a) Immediately prior to the Holdco Contribution (as defined below),
each Contributing Member shall execute and deliver the Holdco Partnership
Agreement, and the Contributing Members shall form Holdco.
(b) On the Separation Date, immediately after the formation of
Holdco, Holdco shall execute and deliver a pledge agreement in favor of the
lenders under DW's revolving credit facility and each Contributing Member shall
contribute all its right, title and interest in and to the Common Stock received
by such Contributing Member in either the Contribution or the Preferred
Contributions, as applicable (other than (w) such Contributing Member's IPO Sale
Shares, (x) in the case of each of M&J K, ▇▇-▇▇ and DW Lips, the respective
number of shares of Class A Stock or Class B Stock set forth on Schedule
2.03(b)(x) to be held in lieu of sale in the IPO, (y) in the case of each
Contributing Member other than Universal and Thomson, the respective number of
shares of Class A Stock or Class B Stock set forth on Schedule 2.03(b)(y) and
(z) in the case of Vulcan, the one share of Class C Stock) to Holdco, and in
exchange therefor shall receive the interests in Holdco set forth in Section
5.01 of the Holdco Partnership Agreement (the "Holdco Contribution").
(c) Each Contributing Member shall, to the extent it has not already
done so, appoint an agent for service of process in the State of Delaware.
(d) Each Continuing Partner (as defined in the Holdco Partnership
Agreement) agrees (for itself and its permitted transferees) that it shall
remain a partner in Holdco for at least six months after the Vulcan GP Date (as
defined in the Holdco Partnership Agreement) and that such Continuing Partner
shall not amend or modify the Holdco Partnership Agreement or take or cause to
be taken any action in each case which would effect the dissolution of Holdco
prior to the end of such six month period (it being understood that
distributions to such Continuing Partners of shares of Common Stock not
constituting Continuing Partner Minimum Ownership Shares (as defined in the
Holdco Partnership Agreement) shall not constitute such actions).
(e) Holdco agrees to convert shares of Class B Stock held by it into
shares of Class A Stock at the time required by the terms of the Holdco
Partnership Agreement.
ARTICLE III
Follow-on Offering
Section 3.01. Initial Follow-on Offering. (a) At any time during the
period beginning on the date that is six months after consummation of the IPO
and prior to May 31,
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2006 (the "Initial Period"), either of (i) M&J K and ▇▇-▇▇, acting together, or
(ii) Vulcan, shall have the right to cause Holdco to effect one Follow-on
Offering (the "Initial Follow-on Offering"), in either case by causing Holdco to
exercise Holdco's demand registration rights pursuant to Section 1.02 of the
Registration Rights Agreement by delivering written notice (the "JK/DG Trigger
Notice" or the "Vulcan Trigger Notice", as applicable) thereof (which notice
shall also specify the number of shares of Class A Stock proposed to be sold in
such Initial Follow-on Offering, which number shall comply with the terms of
Section 3.05) to Holdco during the Initial Period (with a copy of such notice
concurrently delivered to each other Contributing Member). Upon receipt by
Holdco of either a JK/DG Trigger Notice or a Vulcan Trigger Notice, the general
partners of Holdco in their capacity as such shall, within three Business Days
of the date of such receipt, deliver a Demand Notice (as defined in the
Registration Rights Agreement) to the Company requesting that the Company
register such shares of Class A Stock as soon as practicable pursuant to Section
1.02 of the Registration Rights Agreement.
(b) In the event that the Initial Follow-on Offering is a Vulcan
Triggered Follow-on Offering, M&J K and ▇▇-▇▇ shall have the right at any time
at or prior to the pricing of such Initial Follow-on Offering to convert such
Initial Follow-on Offering from a Vulcan Triggered Follow-on Offering to a JK/DG
Triggered Follow-on Offering by delivering written notice of such conversion to
Holdco and Vulcan at or prior to such pricing. Upon receipt by Holdco of such
notice, such Initial Follow-on Offering shall be treated solely as a JK/DG
Triggered Follow-on Offering for all purposes.
Section 3.02. Pricing Period. (a) If a Vulcan Triggered Follow-on
Offering is consummated, M&J K and ▇▇-▇▇, acting together, shall, on the date
selected by them during the period beginning on the date of consummation of the
Vulcan Triggered Follow-on Offering (excluding any exercise of an overallotment
option granted to the underwriters of such offering, if any) and ending on May
31, 2006, deliver an irrevocable written notice (the "Pricing Period Notice") to
the other Contributing Members specifying the date of commencement of the
Pricing Period. The Pricing Period shall in no event end later than May 31, 2006
unless there are fewer than 20 trading days between the date of such
consummation of such Vulcan Triggered Follow-on Offering (or any overallotment
option exercise in respect of such offering, if later) and May 31, 2006, in
which case the Pricing Period shall end on the twentieth trading day after the
date of such consummation of such offering or overallotment option, as the case
may be. The Pricing Period Notice shall be delivered pursuant to this Section
3.02(a) at least three trading days prior to the first day of the Pricing
Period. Notwithstanding anything herein to the contrary, in no event shall the
Pricing Period end earlier than the date of consummation of the overallotment
option, if any, relating to such Vulcan Triggered Follow-on Offering.
(b) The "Pricing Period Price" shall be the Volume Weighted Average
Price of the Class A Stock over the Pricing Period.
Section 3.03. Subsequent Follow-on Offering. (a) If an Initial
Follow-on Offering shall not have been consummated on or prior to May 31, 2006,
then at any time during the period from June 1, 2006 to December 1, 2007 (June
1, 2008, in the event that a Universal/Thomson Triggered Offering shall have
been consummated) (the "Subsequent Period"), Vulcan shall have the sole right to
cause Holdco to effect a Follow-on Offering (the "Subsequent Follow-on
Offering") by causing Holdco to exercise Holdco's demand registration
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rights pursuant to Section 1.02 of the Registration Rights Agreement by
delivering written notice (the "Subsequent Vulcan Trigger Notice") thereof
(which notice shall also specify the number of shares of Class A Stock proposed
to be sold in the Subsequent Follow-on Offering, which number shall comply with
the terms of Section 3.05) to Holdco during the Subsequent Period (with a copy
of such notice concurrently delivered to each other Contributing Member). Upon
receipt by Holdco of the Subsequent Vulcan Trigger Notice, the general partners
of Holdco in their capacity as such shall, within three Business Days of the
date of such receipt, deliver a Demand Notice to the Company requesting that the
Company register such shares of Class A Stock as soon as practicable pursuant to
Section 1.02 of the Registration Rights Agreement.
(b) If an Initial Follow-on Offering shall not have been consummated
on or prior to May 31, 2006 and Vulcan shall not have delivered the Subsequent
Vulcan Trigger Notice by December 1, 2007 (June 1, 2008, in the event that a
Universal/Thomson Triggered Offering shall have been consummated) then the
general partners of Holdco, in such capacity, shall have the right, no later
than December 31, 2007 (June 30, 2008, in the event that a Universal/Thomson
Triggered Offering shall have been consummated), to cause Holdco to effect the
Subsequent Follow-on Offering by delivering a Demand Notice to the Company
requesting that the Company register such shares of Class A Stock as soon as
practicable pursuant to Section 1.02 of the Registration Rights Agreement.
Concurrently with such exercise, Holdco shall deliver written notice to each of
the Contributing Members specifying the number of shares of Class A Stock
proposed to be sold in the Subsequent Follow-on Offering.
Section 3.04. Registration Rights. (a) Holdco shall not exercise its
demand or piggyback registration rights pursuant to the Registration Rights
Agreement for any purpose other than (i) effecting the Follow-on Offering that
will result in a Satisfaction Event with respect to each Participating Partner
or (ii) effecting a Universal/Thomson Triggered Offering that will result in a
Satisfaction Event with respect to each of Universal and Thomson, unless each of
M&J K, ▇▇-▇▇ and Vulcan shall have otherwise consented in writing (which
consent, in each case, may be granted or withheld in such party's sole
discretion).
(b) If a Follow-on Offering is a JK/DG Triggered Follow-on Offering,
then M&J K and ▇▇-▇▇, acting together, shall have the sole right to cause Holdco
to exercise its right to revoke or delay its requested registration pursuant to
the Registration Rights Agreement.
(c) If the Follow-on Offering is either a Vulcan Triggered Follow-on
Offering or the Subsequent Follow-on Offering triggered as set forth in Section
3.03(a), then Vulcan shall have the sole right to cause Holdco to exercise its
right to revoke or delay its requested registration pursuant to the Registration
Rights Agreement.
(d) If a Follow-on Offering is the Subsequent Follow-on Offering
triggered as set forth in Section 3.03(b) or a Subsequent Follow-on Offering
that has not been consummated on or prior to December 1, 2007 (June 1, 2008, in
the event that a Universal/Thomson Triggered Offering shall have been
consummated), then Vulcan, M&J K and ▇▇-▇▇, acting together, shall have the sole
right to cause Holdco to exercise its right to revoke or delay its requested
registration pursuant to the Registration Rights Agreement.
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(e) With respect to a Universal/Thomson Triggered Offering,
Universal and Thomson, acting together, shall have the sole right to cause
Holdco to exercise its right to revoke or delay its requested registration
pursuant to the Registration Rights Agreement.
Section 3.05. Size of Follow-on Offering. Subject to Section
3.04(a), the minimum number of shares to be registered on behalf of the
Participating Partners in a Follow-on Offering shall be such number of shares
required to cause a Satisfaction Event with respect to each Participating
Partner upon consummation of such offering (such minimum number of shares being
the "Minimum Registrable Amount"). The Company shall, to the extent practicable,
cause at least the Minimum Registrable Amount of shares of Common Stock to be
sold in an Initial Follow-on Offering in accordance with the terms of the
Registration Rights Agreement. The Company shall also use its commercially
reasonable best efforts to increase the size of a JK/DG Triggered Follow-on
Offering (to the extent requested by Vulcan) beyond the Minimum Registrable
Amount (subject to the restrictions set forth in Section [ ] of the Holdco
Partnership Agreement); provided, that a majority of the joint lead bookrunning
underwriters for such Follow-on Offering agree that such increase will not have
a significant negative effect on pricing of such Follow-on Offering, and so
advise the Company. The Company shall not reduce the size of a Follow-on
Offering below the Minimum Registrable Amount and shall comply with all of its
obligations under the Registration Rights Agreement with respect to a Follow-on
Offering and a Universal/Thomson Triggered Offering.
Section 3.06. Anti-Manipulation. (a) During the period from the date
of this Agreement until the Final Allocation, except pursuant to a Follow-on
Offering, each Contributing Member agrees that it shall not, and each Parent of
a Contributing Member agrees that such Parent shall not and such Parent shall
cause Persons Controlled By such Parent not to, sell or enter into a put
transaction or engage in any similar transaction, including any constructive
sale or put, or hedging, derivative, short sale or other transaction with the
same or similar effect, or enter into any contract, option or other arrangement
in respect thereof, or publicly announce an intention or plan to engage in any
of the foregoing, with respect to any Common Stock, any securities convertible
into or exchangeable for Common Stock or any options, warrants or other rights
to acquire Common Stock; provided, that this Section 3.06(a) shall not prohibit
any such sale or other transaction between or among any Person Controlled By
such Contributing Members.
(b) During the Pricing Period, the Company shall not repurchase,
redeem or otherwise acquire, or enter into a call transaction or engage in any
similar transaction, including any constructive purchase or call, or hedging,
derivative or other transaction with the same or similar effect, or enter into
any contract, option or other arrangement in respect thereof, or publicly
announce an intention to take any of the foregoing actions with respect to any
Common Stock, any securities convertible into or exchangeable for Common Stock
or any options, warrants or other rights to acquire Common Stock; provided, that
this Section 3.06(b) shall not prohibit any such purchase or acquisition
pursuant to an employee or director stock ownership or other benefit plan.
(c) During the period from the date of this Agreement until the
Final Allocation, each Contributing Member agrees that it shall not, and each
Parent of a Contributing Member agrees that such Parent shall not and such
Parent shall cause Persons Controlled By such Parent not to purchase or
otherwise acquire or enter into a call transaction or engage in any similar
11
transaction, including any constructive purchase or call, or hedging, derivative
or other transaction with the same or similar effect, or enter into any
contract, option or other arrangement in respect thereof, or publicly announce
an intention to take any of the foregoing actions with respect to any Common
Stock, any securities convertible into or exchangeable for Common Stock or any
options, warrants or other rights to acquire Common Stock; provided, that this
Section 3.06(c) shall not prohibit any such purchase, acquisition or other
transaction between or among any Person Controlled By ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any receipt of shares or stock options (or option
exercises) pursuant to an employee or director stock ownership or other benefit
plan.
ARTICLE IV
Universal/Thomson Triggered Offering
Section 4.01. Universal/Thomson Triggered Offering. (a) If a
Follow-on Offering shall not have been consummated on or prior to November 30,
2006, then at any time during the period from December 1, 2006 to [February 28,
2007] (the "Universal/Thomson Period"), unless a Subsequent Follow-on Offering
shall have theretofore been triggered and not revoked, Universal and Thomson,
acting together, shall have the right to cause Holdco to effect a registered
offering (the "Universal/Thomson Triggered Offering") by causing Holdco to
exercise Holdco's demand registration rights pursuant to Section 1.02 of the
Registration Rights Agreement by delivering written notice (the
"Universal/Thomson Trigger Notice") thereof (which notice shall also specify the
number of shares of Class A Stock proposed to be sold in the Universal/Thomson
Triggered Offering, which number shall be the estimated number of shares
required to be sold to cause a Satisfaction Event with respect to each of
Universal and Thomson) to Holdco during the Universal/Thomson Period (with a
copy of such notice concurrently delivered to each other Contributing Member).
Upon receipt by Holdco of the Universal/Thomson Trigger Notice, the general
partners of Holdco in their capacity as such shall, within three Business Days
of the date of such receipt, deliver a Demand Notice to the Company requesting
that the Company register such shares of Class A Stock as soon as practicable
pursuant to Section 1.02 of the Registration Rights Agreement. In no event shall
the Universal/Thomson Triggered Offering be larger than that necessary to cause
a Satisfaction Event with respect to each of Universal and Thomson.
(b) Vulcan shall have the right at any time prior to the fifth day
preceding the printing of the "red ▇▇▇▇▇▇▇" prospectuses in respect of such
Universal/Thomson Triggered Offering to convert such Universal/Thomson Triggered
Offering from a Universal/Thomson Triggered Offering to a Subsequent Follow-on
Offering by delivering written notice of such conversion to Holdco and each
Contributing Member at or prior to such pricing. Upon receipt by Holdco of such
notice, such Universal/Thomson Triggered Offering shall be treated solely as a
Subsequent Follow-on Offering for all purposes and the number of shares
registered in such offering shall be the Minimum Registrable Amount.
12
ARTICLE V
Additional Agreements; Further Assurances
Section 5.01. Certain Holdco Expenses. (a) DW shall pay or reimburse
(i) all reasonable out-of-pocket third party expenses incurred by the Tax
Matters Partner (as defined in the Holdco Partnership Agreement) under the
Holdco Partnership Agreement while acting in such capacity and (ii) all
reasonable out-of-pocket third party expenses incurred by the General Partners
(as defined in the Holdco Partnership Agreement) under the Holdco Partnership
Agreement in performing their duties as the General Partners, in each case to
the extent arising from events occurring prior to the Final Allocation. In
addition, prior to the Final Allocation, DW shall make available to Holdco and
the General Partners any personnel reasonably necessary to assist such Persons
in the performance of such duties. Notwithstanding anything to the contrary in
this Agreement, none of DW, M&J K, The JK Annuity Trust, the MK Annuity Trust,
▇▇▇▇▇▇▇▇▇▇ 1994 Trust, ▇▇-▇▇, DW Lips, Vulcan, [Vulcan Affiliate], ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇, or any of their
respective Affiliates, shall be entitled to any other fee or compensation (other
than applicable indemnity payments) from Holdco, DW, any Member or any partner
of Holdco for any actions taken on behalf of, or services rendered to, Holdco
pursuant to this Agreement or the Holdco Partnership Agreement.
(b) DW hereby fully, absolutely, irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, (i) the due and
punctual payment of each payment required to be made by Holdco under Section
10.03 of the Holdco Partnership Agreement, when and as due, and (ii) the due and
punctual performance and observance of, and compliance with, all covenants,
agreements, obligations and liabilities of Holdco under Section 10.03 of the
Holdco Partnership Agreement, in each case to the extent arising from events
occurring prior to the Final Allocation (all such obligations referred to the in
the preceding clauses (i) and (ii) being collectively referred to as the "Holdco
Obligations"). DW further agrees that the Holdco Obligations may be extended,
amended, modified or renewed, in whole or in part, in each case to the extent
arising from events occurring prior to the Final Allocation, without notice to
or further assent from DW and that DW will remain bound by the guarantee set
forth in this Section 5.01(b) notwithstanding any extension, amendment,
modification or renewal of any Holdco Obligation.
Section 5.02. Further Assurances. (a) In addition to the actions
specifically provided for elsewhere in this Agreement, each of the parties
hereto shall use its reasonable best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things reasonably necessary, proper
or advisable under applicable laws, regulations and agreements to consummate and
make effective the transactions contemplated by this Agreement.
(b) Without limiting the foregoing, each party hereto shall
cooperate with each other party, and without any further consideration, to
execute and deliver, or use its reasonable best efforts to cause to be executed
and delivered, all instruments, including instruments of contribution, exchange
and transfer and to take all such other actions as such party may reasonably be
requested to take by any such other party hereto from time to time, consistent
with the terms of this Agreement, in order to effectuate the provisions and
purposes of this Agreement.
13
ARTICLE VI
Representations and Warranties; Indemnification
Section 6.01. Representations and Warranties of Each Party. Each of
the parties hereto hereby represents and warrants, severally and not jointly, to
each of the other parties hereto as of the date hereof as follows:
(i) Such party (other than in the case of a natural person) is duly
organized or formed, validly existing and in good standing under the laws
of its jurisdiction of incorporation or formation, is qualified to do
business in each jurisdiction where such qualification is required (except
for such qualifications the absence of which, individually or in the
aggregate, would not reasonably be expected to have a material adverse
effect on the ability of such party to perform its obligations under this
Agreement and, to the extent a party thereto, the Registration Rights
Agreement, the Holdco Partnership Agreement, the Class B Stockholder
Agreement, the Vulcan Stockholder Agreement, the LLC Agreement and the
Separation Agreement) and has the requisite power and authority to enter
into this Agreement and, to the extent a party thereto, the Registration
Rights Agreement, the Holdco Partnership Agreement, the LLC Agreement and
the Separation Agreement and to consummate the transactions contemplated
hereby and thereby.
(ii) To the extent such party is making a Preferred Contribution
pursuant to Section 2.01(a), a Contribution pursuant to Section 2.02 or a
Holdco Contribution pursuant to Section 2.03, such party will have good
and valid title to the interests or shares, as applicable, to be
contributed, free and clear of all liens, security interests, charges,
options, claims, restrictions or encumbrances of any kind (collectively,
"Liens"), and upon the applicable contribution, good and valid title to
such interests or shares will pass to the Company or Holdco, as
applicable, free and clear of any Liens, other than Liens arising from
actions of the Company or Holdco, as applicable.
(iii) The execution and delivery of each of this Agreement and, to
the extent a party thereto, the Registration Rights Agreement, the Holdco
Partnership Agreement, the LLC Agreement and the Separation Agreement and
the consummation of the transactions contemplated hereby and thereby have,
other than in the case of a natural person, been duly authorized by all
necessary action on the part of such party. Each of this Agreement and, to
the extent a party thereto, the Registration Rights Agreement, the Holdco
Partnership Agreement, the Class B Stockholder Agreement, the Vulcan
Stockholder Agreement, the LLC Agreement and the Separation Agreement has
been duly executed and delivered by such party and constitutes a legal,
valid and binding obligation of such party, enforceable against such party
in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
and other similar laws of general application affecting enforcement of
creditors' rights generally and (ii) the availability of the remedy of
specific performance or injunctive or other forms of equitable relief may
be subject to equitable defenses and would be subject to the discretion of
the court before which any proceeding therefor may be brought. The
14
spousal consents being executed by the persons listed on Exhibit A hereto
are enforceable against such persons in accordance with their terms.
(iv) The execution, delivery and performance of this Agreement and,
to the extent a party thereto, the Registration Rights Agreement, the
Holdco Partnership Agreement, the Class B Stockholder Agreement, the
Vulcan Stockholder Agreement, the LLC Agreement and the Separation
Agreement and the consummation of the transactions contemplated hereby and
thereby and compliance with the terms hereof and thereof shall not
conflict with or result in a breach or violation of (i) other than in the
case of a natural person, such party's articles or certificate of
incorporation (or similar constitutive document) or by-laws or (ii) any
material contract, agreement or instrument to which such party or any of
its subsidiaries is a party or by which any of them are bound, or license,
judgment, order, decree, statute, law, rule or regulation, domestic or
foreign, applicable to such party or any of its subsidiaries or their
respective properties or assets.
(v) In the case of each Member, such party is an "accredited
investor" within the meaning of Rule 501(a) of Regulation D under the
Securities Act.
Section 6.02. Tax Representation. Each Person receiving DWA LLC
Interests in the DW Distribution represents that (i) it will treat the DW
Distribution as other than in liquidation of its interest in DW and (ii) its
interest in the DWA LLC Interests immediately following the DW Distribution will
have a tax basis determined under Section 732(a) of the Internal Revenue Code.
Section 6.03. Representation and Warranty of the Company. The
Company hereby represents and warrants to each of the other parties hereto as of
the date hereof that the Common Stock to be issued as consideration for the
Contribution and the Preferred Contributions will have been duly authorized and,
when issued and delivered in accordance with this Agreement, will be validly
issued, fully paid and nonassessable.
Section 6.04. Survival. The representations and warranties in this
Article V shall survive the consummation of the transactions contemplated in
this Agreement and shall not terminate.
Section 6.05. Indemnification. (a) Each party shall indemnify,
defend and hold harmless each other party (and each such other party's
directors, officers, employees, affiliates, successors and assigns) from and
against all actions, suits, claims, complaints, demands, litigation or legal,
administrative or arbitral proceedings or investigations (collectively,
"Claims"), losses, liabilities, damages, deficiencies, judgments, assessments,
fines, settlements, costs or expenses (including interest, penalties and
reasonable fees, expenses and disbursements of attorneys, experts, personnel and
consultants incurred by the indemnified party in any action or proceeding
between the indemnifying party and the indemnified party or between the
indemnified party and any third party, or otherwise) (collectively, "Losses") to
the extent resulting from any breach of any representation or warranty of such
party contained in Section 6.01.
15
(b) Each Person receiving DWA LLC Interests in the DW Distribution
shall indemnify, defend and hold harmless DW and the other Members (and their
respective directors, officers, employees, affiliates, successors and assigns)
from and against all Claims and Losses, including any effect resulting from the
application of Section 743(b)(2) of the Internal Revenue Code, to the extent
resulting from any breach by such Person of the representation contained in
Section 6.02.
(c) The Company shall indemnify, defend and hold harmless each other
party (and each such other party's directors, officers, employees, affiliates,
successors and assigns) from and against all Claims and Losses to the extent
resulting from any breach of the representation and warranty of the Company
contained in Section 6.03.
(d) The Person making a claim under this Section 6.05 is referred to
as the "Indemnitee" and the party subject to providing indemnification in
respect of such claim is referred to as the "Indemnitor". All claims by any
Indemnitee under this Section 6.05 shall be asserted and resolved as follows:
Promptly after receipt by the Indemnitee of notice of any Claim or
circumstances which, with the lapse of time, would or might give rise to a
Claim or Loss or the commencement (or threatened commencement) of a Claim
or any action, proceeding or investigation that may result in a Loss
(including a claim of a Loss that does not involve a third-party claim)
(an "Asserted Liability"), the Indemnitee shall give notice thereof (the
"Claims Notice") to the Indemnitor; provided, that failure to give a
Claims Notice in the context of a third-party claim shall in no way
diminish the Indemnitor's obligations hereunder, except to the extent such
failure is finally determined by a court of competent jurisdiction to have
actually and materially prejudiced the Indemnitor. The Claims Notice shall
describe the Asserted Liability in reasonable detail and shall indicate
the amount (estimated, if necessary and to the extent feasible) of the
Loss that has been or may be suffered by the Indemnitee.
(e) The Indemnitor may elect to defend (and, unless the Indemnitor
has specified any reservations or exceptions, to seek to settle or compromise,
so long as such settlement or compromise contains an unconditional release of
each Indemnitee, whether or not a party to the applicable third party claim), at
its own expense and by its own counsel reasonably acceptable to the Indemnitee,
any Asserted Liability arising from a third-party claim. If the Indemnitor
elects to compromise or defend such Asserted Liability, it shall within 30 days
(or sooner, if the nature of the Asserted Liability so requires) notify the
Indemnitee of its intent to do so, and the Indemnitee shall cooperate, at the
expense of the Indemnitor, in the compromise of, or defense against, such
Asserted Liability. Should the Indemnitor make such election, the Indemnitor
shall not be liable to the Indemnitee for legal expenses subsequently incurred
by the Indemnitee in connection with the compromise of, or defense against, such
Asserted Liability. If the Indemnitor elects not to compromise or defend the
Asserted Liability, fails to notify the Indemnitee of its election as herein
provided or contests its obligation to indemnify under this Agreement, the
Indemnitee may pay, compromise or defend such Asserted Liability.
Notwithstanding the foregoing, neither the Indemnitor nor the Indemnitee may
settle or compromise any Asserted Liability over the objection of the other;
provided, that consent to settlement or compromise shall not be unreasonably
withheld in the case of a settlement or
16
compromise which involves only monetary relief which the Indemnitor has agreed
to pay and which includes a full and unconditional release of the Indemnitee. In
any event, the Indemnitee and the Indemnitor may participate, at their own
expense, in the defense of such Asserted Liability. If the Indemnitor chooses to
defend any Asserted Liability, the Indemnitee shall make available to the
Indemnitor any books, records or other documents within its control that are
necessary or appropriate for such defense, and, if the Indemnitee chooses to
defend any Asserted Liability, the Indemnitor shall make available to the
Indemnitee any books, records or other documents within its control that are
necessary or appropriate for such defense.
ARTICLE VII
General Provisions
Section 7.01. 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 as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:
(i) if to the Company, to:
DreamWorks Animation SKG, Inc.
Grandview Building
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel
with a copy to:
Cravath, Swaine & ▇▇▇▇▇ LLP
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
(ii) if to any other party hereto, to the address of such party
specified on the signature page hereto.
Section 7.02. 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 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.
17
Section 7.03. 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.
(b) This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, other than as set
forth in Section 6.05, 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 7.04. 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 7.05. 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 7.06. Assignment; Amendments. (a) 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[; provided, that each of M&J K and ▇▇-▇▇ shall be permitted to assign its
rights, interests and obligations hereunder to any other Person to whom M&J K or
▇▇-▇▇, as applicable, transfers any Class B Stock in the form of Class B Stock
in accordance with the Class B Stockholder Agreement and the Vulcan Stockholder
Agreement (and, upon such assignment, all references herein to M&J K or ▇▇-▇▇,
as applicable, shall be deemed to be references to such assignee)]. 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
and assigns.
(b) No amendment to this Agreement shall be effective unless it
shall be in writing and signed by each of the Company, DW, Holdco, M&J K, ▇▇-▇▇,
Vulcan and Contributing Members (including M&J K, ▇▇-▇▇ and Vulcan) owning at
least a majority-in-interest of the Interests (as defined in the Holdco
Partnership Agreement) then outstanding (based on their Participation
Percentages (as defined in the Holdco Partnership Agreement)); provided, that no
amendment shall affect a party hereto disproportionately when compared to the
other parties hereto without the consent of such party; and provided further,
that no amendment to the provisions relating to a Universal/Thomson Triggered
Offering shall be effective without the consent of each of Universal and
Thomson.
Section 7.07. Enforcement. (a) Each party hereto acknowledges that
the other parties would not have an adequate remedy at law for money damages in
the event that any of
18
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
party hereto, 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 potential breach
and enforcing specifically the terms and provisions hereof, and each party
hereto 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 7.08. 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 7.09. 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 address set forth for
notices in Section 7.01 herein; provided, 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.
19
IN WITNESS HEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first written above.
DREAMWORKS ANIMATION SKG, INC.,
by ______________________________________
Name:
Title:
Address:
DREAMWORKS L.L.C.,
by ______________________________________
Name:
Title:
Address:
[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:
20
THE JK ANNUITY TRUST,
by ______________________________________
Name:
Title:
Address:
THE MK ANNUITY TRUST,
by ______________________________________
Name:
Title:
Address:
▇▇▇▇▇▇▇▇▇▇ 1994 IRREVOCABLE TRUST,
by ______________________________________
Name:
Title:
Address:
▇▇-▇▇, L.P.,
By ▇▇-▇▇, INC.,
General Partner
by _______________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
Address:
21
DW LIPS, L.P.,
By DW SUBS. INC.,
General Partner
by _______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
Address:
[VULCAN],
by ______________________________________
Name:
Title:
Address:
▇▇▇ ENTERTAINMENT, L.L.C.,
by ______________________________________
Name:
Title:
Address:
CHEMICAL INVESTMENTs, INC.,
by ______________________________________
Name:
Title:
Address:
22
MICROSOFT CORPORATION,
by ______________________________________
Name:
Title:
Address:
ZIFF INVESTORS PARTNERSHIP, L.P. IiA,
By Ziff Investment Management, LLC,
General Partner
by ______________________________
Name:
Title:
Address:
OSTIN MUSIC LLC,
by ______________________________________
Name:
Title:
Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
______________________________________
Address:
23
▇▇▇▇▇▇▇ ▇▇▇▇▇,
______________________________________
Address:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
______________________________________
Address:
VIVENDI UNIVERSAL ENTERTAINMENT LLLP,
by ______________________________________
Name:
Title:
Address:
THOMSON INC.,
by ______________________________________
Name:
Title:
Address:
24
KADOKAWA ENTERTAINMENT U.S. INC.,
by ______________________________________
Name:
Title:
Address:
[GE],
by ______________________________________
Name:
Title:
Address:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
______________________________________
Address:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
______________________________________
Address:
▇▇▇▇▇ ▇▇▇▇▇▇,
______________________________________
Address:
25
▇▇▇▇ ▇▇▇▇▇,
______________________________________
Address: