Exhibit 10.5
STOCKHOLDER AGREEMENT
Among
DREAMWORKS ANIMATION SKG, INC.,
[HOLDCO LLLP],
M&J K DREAM LIMITED PARTNERSHIP,
THE JK ANNUITY TRUST,
THE MK ANNUITY TRUST,
XXXXXXXXXX 1994 IRREVOCABLE TRUST,
XX-XX, L.P.,
[VULCAN],
XXXXXXX XXXXXXXXXX,
Xxxxx Xxxxxx
and
Xxxx Xxxxx
Dated As Of [ ], 2004
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
Section 1.01. Certain Defined Terms................................... 2
Section 1.02. Other Definitional Provisions........................... 7
ARTICLE II
Corporate Governance
Section 2.01. Proxy Statement......................................... 7
Section 2.02. Class C Director........................................ 7
Section 2.03. Board Composition....................................... 8
Section 2.04. Certain Actions......................................... 10
ARTICLE III
Transfer of Shares
Section 3.01. Restrictions on Transfer by the Vulcan Stockholders..... 10
Section 3.02. Agreement to Convert.................................... 11
Section 3.03. Permitted Transferees................................... 11
Section 3.04. Notice of Transfer...................................... 11
Section 3.05. Compliance with Transfer Provisions..................... 11
Section 3.06. Legend.................................................. 12
ARTICLE IV
Standstill
Section 4.01. Limitation on Acquisitions.............................. 12
Section 4.02. Other Restrictions...................................... 13
Section 4.03. Exceptions to Standstill................................ 15
ARTICLE V
Term
Section 5.01. Term.................................................... 15
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ARTICLE VI
General Provisions
Section 6.01. Notices................................................. 16
Section 6.02. Counterparts............................................ 17
Section 6.03. Entire Agreement; No Third Party Beneficiaries.......... 17
Section 6.04. Governing Law........................................... 17
Section 6.05. Severability............................................ 17
Section 6.06. Assignment; Amendments.................................. 17
Section 6.07. Enforcement............................................. 18
Section 6.08. Titles and Subtitles.................................... 18
Section 6.09. Submission to Jurisdiction; Waivers..................... 18
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STOCKHOLDER AGREEMENT, dated as of [ ], 2004, among
DREAMWORKS ANIMATION SKG, INC., a Delaware corporation (the
"Company"), [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"), XXXXXXXXXX 1994 IRREVOCABLE TRUST, a [ ] irrevocable
trust (the "1994 Irrevocable Trust"), XX-XX, L.P., a Delaware
limited partnership ("XX-XX"), [VULCAN], a [ ] ("Vulcan"), DW
LIPS, L.P., a Delaware limited liability partnership ("DW
Lips") (solely for purposes of Article IV), XXXXXX XXXXXXXXX
(solely for purposes of Article IV), XXXXXXX XXXXXXXXXX, XXXXX
XXXXXX and XXXX XXXXX.
WHEREAS, DreamWorks L.L.C., a Delaware limited liability company
("DW"), and the Company, together with other parties, have entered into a
Separation Agreement dated as of [ ], 2004, 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 the consummation of the Offering,
Holdco, M&J K and XX-XX 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");
WHEREAS, immediately following the consummation of the Offering,
Vulcan will own all of the Company's issued and outstanding Class C Common
Stock, par value $0.01 per share ("Class C Stock" and, together with the Class A
Stock and the Class B Stock, the "Common Stock"); 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 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:
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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.
"Additional Shares" has the meaning assigned to such term in Section
3.01.
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled By or is Under Common Control With, such specified Person.
"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.
"Class B Stockholder Agreement" means the Stockholder Agreement,
dated as of [ ], 2004, among Holdco, M&J K, the M&J K GRATs, the 1994
Irrevocable Trust, XX-XX, Xxxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx, as it may be
amended, supplemented, restated or modified from time to time.
"Class C Conversion Date" has the meaning assigned to such term in
the Charter as in effect at consummation of the Offering.
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"Class C Director" has the meaning assigned to such term in the
Charter as in effect at consummation of the Offering.
"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.
"DG Designee" has the meaning assigned to such term in Section
2.03(a)(iv).
"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 consummation of the Offering.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
"Family Group" means, (a) with respect to M&J K and the Xxxxxxxxxx
Stockholders, Xxxxxxx Xxxxxxxxxx, any Estate Planning Vehicle that is Controlled
By either Xxxxxxx Xxxxxxxxxx or Xxxxx Xxxxxx and any other Person that is
Controlled By Xxxxxxx Xxxxxxxxxx, in each case, so long as such Person continues
to be so Controlled and (b) with respect to XX-XX and the Geffen Stockholders,
Xxxxx Xxxxxx and any other Person that is Controlled By Xxxxx Xxxxxx, 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], Xxxxxx Xxxxxxxxx, Xxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxx and the Holdco partners party thereto, as
it may be amended, supplemented, restated or modified from time to time.
"Geffen Stockholders" means XX-XX and any other Family Group member
of XX-XX 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 Contribution" has the meaning set forth in the Formation
Agreement.
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"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.
"Independent Director" means a Director who qualifies as an
"independent director" of the Company under (a) NYSE Rule 303A(2), as such Rule
may be amended, supplemented or replaced from time to time or (b) if the Class A
Stock is not listed for quotation on the NYSE, any comparable rule or regulation
of the primary securities exchange or quotation system on which the Class A
Stock is listed or quoted.
"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].
"JK Designee" has the meaning assigned to such term in Section
2.03(a)(iii).
"Xxxxxxxxxx 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.
"KG Termination Date" means the first date after the Final
Allocation on which the shares of Common Stock held of record by the Xxxxxxxxxx
Stockholders and the Geffen Stockholders, including shares held of record by
[Holdco] LLLP on behalf of the Xxxxxxxxxx Stockholders and the Geffen
Stockholders, represent less than 32.5% of the total Voting Power of the
outstanding Voting Stock (each as defined in the Charter as in effect at
consummation of the Offering) of the Company.
"NYSE" means The New York Stock Exchange, Inc.
"Original Non-Capital Shares" means the shares of Common Stock held
of record by the Vulcan Stockholders immediately after the Final Allocation,
including shares held of record by [Holdco] LLLP on behalf of the Vulcan
Stockholders, which are in excess of the shares of Common Stock that are
required to reduce Vulcan's Unreturned DreamWorks Capital (as defined in the
Holdco LLLP Agreement) to zero (based on the final valuation of shares in the
Final Allocation).
"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 the
Class B Stockholder Agreement 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
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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) the delivery of a revocable proxy or a written consent
to (A) the Chief Executive Officer or other officer specified 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 pledgor of Pledged
Common Stock, a conversion and Transfer of shares of Pledged Common Stock
pursuant to a foreclosure under the applicable pledge agreement between such
pledgor and the lenders under the Revolving Credit Facility.
"Principal" means either of Xxxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx.
"Principal Holder" means any Person other than DW and Holdco, for so
long as (i) 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 this Agreement
and (ii) such Person is either a Principal or one or more Principals shall
Control such Person.
"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).
"SEC" means the United States Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act or the
Exchange Act.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
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"Separation Date" has the meaning assigned to such term in the
Separation Agreement.
"Xxxxxxxxx Parties" means Xxxxxx Xxxxxxxxx, DW Lips and any Person
Controlled By Xxxxxx Xxxxxxxxx.
"Stockholders" has the meaning assigned to such term in Section
2.03(b).
"Threshold Date" means the first date on which the total number of
outstanding shares of Class B Stock is less than 50% of the number of shares of
Class B Stock outstanding immediately following the Final Allocation (excluding
in each case any conversion of Pledged Common Stock pursuant to a Pledged Share
Event), as such 50% number may be adjusted from time to time to take into
account any stock split, reverse stock split or stock dividend; provided, that
the Threshold Date shall not occur as a result of an Involuntary Conversion
unless the special call right set forth in Section 2.04 of the Class B
Stockholder Agreement is not exercised within the time period provided therein
or the purchase in respect thereof is not consummated within the time period
provided in the Charter as in effect at consummation of the Offering.
"Threshold Number" means, with respect to (i) the Xxxxxxxxxx
Stockholders, 50% of the number of shares of Class B Stock held of record by
them, including shares held of record by [Holdco] LLLP on behalf of the
Xxxxxxxxxx Stockholders (but excluding any conversion of Pledged Common Stock
pursuant to a Pledged Share Event), immediately following the Final Allocation;
and (ii) the Geffen Stockholders, 50% of the number of shares of Class B Stock
held of record by them, including shares held of record by [Holdco] LLLP on
behalf of the Geffen Stockholders (but excluding any conversion of Pledged
Common Stock pursuant to a Pledged Share Event), immediately following the Final
Allocation, in each case, as each such number may be adjusted from time to time
to take into account any stock split, reverse stock split or stock dividend.
"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 Class B 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.
"Vulcan Party" means Xxxx Xxxxx, the Vulcan Stockholders and their
respective Affiliates.
"Vulcan Permitted Transferee" means Xxxx Xxxxx and any Person that
is Controlled By Xxxx Xxxxx, so long as such Person continues to be Controlled
By Xxxx Xxxxx[, or any employee equity plan of Vulcan or any of its Affiliates].
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"Vulcan Stockholders" means Vulcan and any Vulcan Permitted
Transferee, in each case for so long as such Person shall both hold of record
shares of Common Stock and be a Vulcan Permitted Transferee.
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
Corporate Governance
Section 2.01. Proxy Statement. The Company agrees to use its best
efforts to cause (i) the individuals designated in accordance with Section 2.03
as the JK Designee and the DG Designee and (ii) the individual designated as the
Class C Director in accordance with the Charter to be included in management's
slate of nominees and as such, each such designee shall be included in the proxy
statement prepared by management of the Company in respect of the applicable
annual meeting or other applicable vote or action by written consent with
respect to the election of Directors, whether or not the notice required by
Section 2.03(d) (in respect of the JK Designee and the DG Designee) or by
Section 2.02(c) (in respect of the Class C Director designee) complies with
Section 8 of Article II of the Company's By-laws.
Section 2.02. Class C Director. (a) Commencing on the first date on
which the holder of Class C Stock may elect the Class C Director under the
Charter, each Vulcan Stockholder agrees to vote or act by written consent with
respect to (or cause to be voted or acted upon by written consent) all Class C
Stock then held of record by such Vulcan Stockholder solely in favor of Xxxx
Xxxxx as the Class C Director; provided, however, that if in Xxxx Xxxxx'x
reasonable determination (i) he is not able to serve as the Class C Director or
(ii) serving as the Class C Director would cause him any economic detriment,
then each Vulcan Stockholder agrees to vote or act by written consent with
respect to (or cause to be voted or acted upon by written consent) all Class C
Stock then held of record by such Vulcan Stockholder solely in favor of a
replacement Class C Director and each subsequent Class C Director identified by
the Vulcan Stockholders to the Company in writing. The Vulcan Stockholders agree
to consult with the then Chairman of the Company's Board regarding the identity
and credentials of the replacement Class C Director prior to the election of
such individual as a Board member (it being understood that the Vulcan
Stockholders shall have the sole and exclusive right to select the individual
who will serve as the replacement Class C Director and each subsequent Class C
Director).
(b) Each Class B Holder and the Company agree to take all reasonable
actions (including, to the extent necessary, calling a special meeting of the
Board and/or Company stockholders) in order to ensure that the composition of
the Board is as set forth in Section 2.03(a) (including taking all reasonable
actions to cause any replacement Class C
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Director designated by the Vulcan Stockholders in accordance with Section
2.02(a) and the Charter to fill any vacancy in the office of the Class C
Director as promptly as practicable).
(c) Unless Xxxx Xxxxx will be the Class C Director designee, at
least 60 days before each annual meeting of stockholders of the Company, and at
least five days before any other stockholder vote or action by written consent
with respect to the election of Directors, Vulcan shall notify the Company and
each other party hereto in writing of the individual who will be the Class C
Director designee.
Section 2.03. Board Composition. (a) The Board shall consist of a
number of Directors determined in accordance with the Charter, and shall be
composed as follows:
(i) the Chief Executive Officer of the Company;
(ii) the Class C Director (if any shares of Class C Stock are issued
and outstanding) in accordance with the Charter;
(iii) for so long as the Xxxxxxxxxx Stockholders shall be Principal
Holders, one individual designated for election to the Board by the
Xxxxxxxxxx Stockholders (the "JK Designee"); provided, however, that for
so long as Xxxxxxx Xxxxxxxxxx shall be the Chief Executive Officer of the
Company and a Director, he shall be deemed to be the JK Designee;
(iv) for so long as the Geffen Stockholders shall be Principal
Holders, one individual designated for election to the Board by the Geffen
Stockholders (the "DG Designee"); and
(v) such number of individuals selected by the Nominating and
Corporate Governance Committee (or, in the event of any vacancy in the
office of Director as a result of a vote or action of the Stockholders (as
defined below) pursuant to the second proviso to Section 2.03(b), then as
selected in accordance with the second sentence of Section 2.03(c)) for
nomination to the Board as shall bring the total number of designees and
nominees pursuant to this Section 2.03(a) to the number of Directors that
constitute the "entire Board" (as defined in the Charter, but subject to
any rights of holders of Preferred Stock (as defined in the Charter) to
elect additional Directors under specified circumstances); provided,
however, that at all times following the first anniversary of the listing
of the Class A Stock on a national securities exchange a sufficient number
of the Director-nominees nominated by the Nominating and Corporate
Governance Committee shall qualify as Independent Directors so that a
majority of the Board shall be Independent Directors as required by the
By-laws; provided further, however, that the holder of the Class C Stock
shall not be restricted from nominating, electing or maintaining a Class C
Director who is determined by the Board not to be an Independent Director.
(b) Each of Holdco, the Xxxxxxxxxx Stockholders, the Geffen
Stockholders and the Vulcan Stockholders (collectively, the "Stockholders")
agrees to vote or act by written consent with respect to (or cause to be voted
or acted upon by written consent) all shares of Common Stock then held of record
by such Stockholder (x) in favor of the election to the Board
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of those individuals designated or nominated in accordance with Section 2.03(a)
and (y) against the election to the Board of any individual not designated or
nominated in accordance with Section 2.03(a); provided, however, that at the
written request of any of the Xxxxxxxxxx Stockholders or the Geffen Stockholders
with respect to a Director designated by such Stockholder pursuant to Section
2.03(a)(iii) or Section 2.03(a)(iv), each other Stockholder hereby agrees to
vote or act by written consent with respect to (or cause to be voted or acted
upon by written consent) all shares of Common Stock then held of record by such
Stockholder in favor of the removal from office of such Director at any meeting
or upon any action by written consent called or taken for the purpose of
removing such Director from office (and, except as further provided below or in
Section 2.03(e), otherwise shall not vote or act by written consent to cause the
removal of the JK Designee or DG Designee, as applicable, without cause);
provided further, however, that at any time, if the Principal Holder or
Principal Holders that hold of record shares of Common Stock representing a
majority of the total voting power of the Common Stock held of record by the
Principal Holders at such time shall so direct in writing, each Stockholder
hereby agrees to vote or act by written consent with respect to (or cause to be
voted or acted upon by written consent) all shares of Common Stock then held of
record by such Stockholder in favor of the removal from office of the applicable
Director or Directors as so directed by such Principal Holders (other than,
except for cause, the Class C Director) at any meeting or upon any action by
written consent called or taken for the purpose of removing such Director or
Directors from office and otherwise shall not vote or act by written consent to
remove or cause the removal of any Director or Directors (except for cause).
(c) In the event of any vacancy in the office of Director of the DG
Designee or the JK Designee, each Stockholder agrees to vote or act by written
consent with respect to (or cause to be voted or acted upon by written consent)
all shares of Common Stock then held of record by such Stockholder in favor of
the election to the Board of an individual designated in writing by the Geffen
Stockholders or the Xxxxxxxxxx Stockholders, as applicable, and against the
election to the Board of any individual not designated by the Geffen
Stockholders or the Xxxxxxxxxx Stockholders, as applicable. In the event of any
vacancy in the office of Director as a result of a vote or action of the
Stockholders pursuant to the second proviso to Section 2.03(b) above (other than
a vacancy in the office of the Class C Director, which vacancy shall be filled
by the holder of the Class C Stock in accordance with the Charter), each
Stockholder agrees to vote or act by written consent with respect to (or cause
to be voted or acted upon by written consent) all shares of Common Stock then
held of record by such Stockholder (x) for the filling of such vacancy as the
Principal Holder or Principal Holders that hold of record shares of Common Stock
representing a majority of the total voting power of the Common Stock held of
record by the Principal Holders at such time shall so direct in writing, but
following the composition requirements set forth in Section 2.03(a) and in the
case of the filling of vacancies in offices described in Section 2.03(a)(v),
after consultation with the Class C Director (if any shares of Class C Stock are
issued and outstanding) and (y) against the election to the Board of any
individual not so named.
(d) At least 60 days before each annual meeting of stockholders of
the Company, and at least 5 days before any other stockholder vote or action by
written consent with respect to the election of Directors, the Geffen
Stockholders (and the Xxxxxxxxxx Stockholders if Xxxxxxx Xxxxxxxxxx shall not
then be the Chief Executive Officer of the Company) shall notify the Company and
each other Stockholder in writing of such
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Stockholder's designee, if any, pursuant to Section 2.03(a)(iii) or Section
2.03(a)(iv), as applicable.
(e) If the Class C Conversion Date shall have occurred, the Vulcan
Stockholders shall use their best efforts to cause the Class C Director to
resign from the Board as promptly as possible and in any event no later than the
second day after the Class C Conversion Date. If, at any time, all of the
Xxxxxxxxxx Stockholders or all of the Geffen Stockholders cease to be Principal
Holders (any such holder, a "Non-Controlled Holder"), such Non-Controlled
Holders shall use their best efforts to cause the JK Designee or the DG
Designee, as applicable, to resign from the Board as promptly as possible and in
any event no later than the second day after such applicable Stockholder first
ceases to be a Principal Holder; provided, however, that if the Xxxxxxxxxx
Stockholders shall fail to be Principal Holders at a time when Xxxxxxx
Xxxxxxxxxx is deemed to be the JK Designee by virtue of his role as Chief
Executive Officer of the Company and a Director, the Xxxxxxxxxx Stockholders
shall not be required to comply with the provisions of this Section 2.03(e).
(f) Actions taken by the Principals and their Family Groups, Xxxx
Xxxxx and the Vulcan Stockholders 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.
Section 2.04. Certain Actions. Prior to the Final Allocation,
without the consent of each Stockholder, neither the Company nor any Stockholder
will take or cause to be taken any action that would require the consent or
approval of the holders of Class A Stock voting separately as a class pursuant
to Section 4(b) of Article IV of the Charter.
ARTICLE III
Transfer of Shares
Section 3.01. Restrictions on Transfer by the Vulcan Stockholders.
In the event that any Vulcan Party shall, directly or indirectly, acquire or
agree to acquire by purchase or otherwise ownership of any additional shares
("Additional Shares") of Common Stock or other voting securities of the Company
other than shares of Common Stock (including Pledged Common Stock) owned by any
Vulcan Party, including shares held by Holdco on behalf of any Vulcan Party,
immediately after the Final Allocation, then without the prior written consent
of the Company, each of the Vulcan Stockholders agrees not to Transfer (other
than to the Company or to any Class B Holder) any Additional Shares or Original
Non-Capital Shares if the ultimate purchaser would (to such Vulcan Party's
knowledge after reasonable due inquiry) Beneficially Own more than 5% of the
then issued and outstanding Common Stock, after giving effect to such Transfer;
provided, that any Vulcan Stockholder shall be permitted to Transfer Additional
Shares or Original Non-Capital Shares to (i) a "qualified institutional buyer"
as defined in Rule 144A under the Securities Act of 1933, as amended, if, after
giving effect to such Transfer, such "qualified institutional buyer" represents
to such Vulcan Stockholder that it would be eligible to report its ownership of
Common Stock on Schedule 13G pursuant to Rule 13d-1 under Section 13 of the
Exchange Act (or any successor provision thereto) and (ii) any Person
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who, upon consummation of such Transfer, enters into (and agrees not to transfer
such Common Stock except to permitted transferees that enter into) a "standstill
agreement" with the Company and the Class B Holders on the terms set forth in
Article IV (or less restrictive terms that are agreed to by the Company). As a
condition to any Transfer of any Common Stock by a Vulcan Stockholder to a
Person Controlled by Xxxx Xxxxx, such Vulcan Stockholder shall cause such
transferee to comply with Section 3.03.
Section 3.02. Agreement to Convert. Each Class B Holder (other than
Holdco) agrees that from and after the Threshold Date, on the first date (the
"Specified Date") that such Class B Holder (together with its applicable Family
Group) ceases to hold of record at least such Class B Holder's Threshold Number
of shares of Class B Stock, such Class B Holder (together with its applicable
Family Group) (x) shall Transfer any shares of Class B Stock held of record by
such Class B Holder to any other Class B Holder who (together with its
applicable Family Group) at such time continues to hold of record at least such
other Class B Holder's Threshold Number of shares of Class B Stock and who
exercises its right of first offer, in accordance with the right of first offer
provisions of the Class B Stockholder Agreement, and (y) following compliance
with the right of first offer provisions of the Class B Stockholder Agreement,
shall immediately convert all remaining shares of Class B Stock held of record
by it (and its applicable Family Group) to Class A Stock in accordance with the
Charter; provided, however, that if any applicable Class B Holder (or Family
Group member) shall fail to surrender such Class B shares for conversion as so
required by the close of business on the Business Day following such compliance,
the Company on behalf of such holder (or Family Group member) shall cause such
conversion to occur as of such date, and each party hereto consents to treating
such Class B shares as having been surrendered for conversion in accordance with
Section 2(f) of Article IV of the Charter as of such date.
Section 3.03. Permitted Transferees. Any Vulcan Permitted Transferee
and 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 Vulcan Permitted
Transferee or Family Group member, and as a condition thereto, the transferring
holder agrees to cause such Vulcan Permitted Transferee or Family Group member,
as applicable, to agree in writing with the Company to be bound by the terms and
conditions of this Agreement. To the extent a Vulcan Permitted Transferee or
Family Group member that holds of record Common Stock ceases to qualify as a
Vulcan Permitted Transferee or Family Group member, such Person 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 3.01 of
this Agreement and Section 2.01 of the Class B Stockholder Agreement, to the
extent applicable to a Transfer of Common Stock.
Section 3.04. Notice of Transfer. To the extent any party hereto
proposes to Transfer any Common Stock, such party shall, prior to consummation
of such Transfer, deliver notice thereof to the Company stating the number (and
class) of shares to be Transferred, the identity of the transferee and the
manner of Transfer.
Section 3.05. Compliance with Transfer Provisions. Any Transfer or
attempted Transfer of Common Stock in violation of any provision of this
Agreement or the Class B Stockholder Agreement shall be void, and the Company
shall not record such Transfer on its
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books or treat any purported transferee of such Common Stock as the owner of
such Common Stock for any purpose.
Section 3.06. Legend. (a) During the term of this Agreement, each
certificate evidencing Class C Stock held of record or Beneficially Owned by a
Vulcan Stockholder and each certificate evidencing Class B Stock held of record
or Beneficially Owned by a Class B Holder shall bear the following legend (and,
in the case of Class B Stock, the legend set forth in Section 2.08 of the Class
B Stockholder Agreement):
"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 DREAMWORKS
ANIMATION SKG, INC., [HOLDCO] LLLP, M&J K DREAM LIMITED PARTNERSHIP,
THE JK ANNUITY TRUST, THE MK ANNUITY TRUST, XXXXXXXXXX 1994
IRREVOCABLE TRUST, XX-XX, L.P., [VULCAN], XXXXXXX XXXXXXXXXX, XXXXX
XXXXXX AND XXXX XXXXX. A COPY OF SUCH STOCKHOLDER AGREEMENT IS ON
FILE AT THE PRINCIPAL OFFICE OF DREAMWORKS ANIMATION SKG, INC. AT
Grandview Building, 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000."
(b) Upon a Person ceasing to have rights and obligations under this
Agreement pursuant to the terms hereof or upon termination of this Agreement (or
the Class B Stockholder Agreement, as applicable), such Person may surrender to
the Company any certificates held of record by such Person and bearing the
legend set forth in Section 3.06(a) (or in Section 2.08 of the Class B
Stockholder Agreement, as applicable), and upon surrender of such certificates,
the Company shall reissue such certificates without such legend.
ARTICLE IV
Standstill
Section 4.01. Limitation on Acquisitions. Each of Xxxx Xxxxx and
each Vulcan Stockholder covenants and agrees with the Company and each Principal
Holder that they shall not, and shall cause each of their respective Affiliates
(other than any such Affiliate that is listed on a national securities exchange)
not to, prior to the earlier of (i) the fifth anniversary of the date of this
Agreement and (ii) the KG Termination Date, directly or indirectly, acquire, or
agree to acquire, by purchase or otherwise (including by purchasing or otherwise
acquiring or entering into a call transaction or engaging in any similar
transaction, including any constructive purchase or call or hedging, derivative
or other transaction with the same or similar effect), ownership of any
additional shares of Common Stock or other voting securities of the Company
(except such shares of Common Stock (including shares of Pledged Common Stock)
received pursuant to the Formation Agreement or the Holdco LLLP Agreement or by
way of stock dividends, stock reclassifications or other distributions made to
holders of Common Stock generally); provided, that Xxxx Xxxxx and the Vulcan
Stockholders shall be permitted to acquire, or agree to acquire, by purchase or
otherwise (including by purchasing or otherwise acquiring or entering into a
call transaction or engaging in any similar transaction, including any
constructive purchase or call or
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hedging, derivative or other transaction with the same or similar effect),
Beneficial Ownership of additional shares of Common Stock or other voting
securities of the Company so long as the percentage of the aggregate number of
shares of Common Stock and other voting securities of the Company owned by Xxxx
Xxxxx, the Vulcan Stockholders and their respective Affiliates (other than any
such Affiliate that is listed on a national securities exchange) does not exceed
the greater of (x) 33% of the outstanding shares of Common Stock and other
voting securities of the Company and (y) such percentage of the number of such
outstanding shares of Common Stock or other voting securities owned by all of
the Class B Holders in the aggregate, it being understood that in no event shall
Xxxx Xxxxx or any Vulcan Stockholder be in breach of this Section 4.01 or be
required to sell or otherwise dispose of any shares of Common Stock or other
voting securities of the Company solely because of a decrease in the percentage
described in clause (y) above. Each of Xxxx Xxxxx and each Vulcan Stockholder
covenants and agrees with the Company and each Principal Holder that they shall
not cause any of their respective Affiliates that are listed on a national
securities exchange to take any of the actions prohibited by this Section 4.01
and will not vote any securities of any such Affiliate in favor of the taking of
such actions (in each case, as if this Section 4.01 applied to such Affiliates);
provided, that the foregoing shall not in any way restrict Xxxx Xxxxx or any
Vulcan Stockholders, in their capacity as a director or board committee member
of such Affiliate, from exercising their fiduciary duties or from taking any
action in such capacity (including voting in their capacity as a director or
board committee member) that they deem to be in the best interest of such
Affiliate.
Section 4.02. Other Restrictions. Each of Xxxx Xxxxx and each Vulcan
Stockholder covenants and agrees with the Company that they shall not, and shall
cause each of their Affiliates (other than any such Affiliate that is listed on
a national securities exchange) not to, and each of Xxxxxx Xxxxxxxxx and DW Lips
covenants and agrees with the Company that they shall not, and shall cause each
Xxxxxxxxx Party not to, prior to the earlier of (i) the fifth anniversary of the
date of this Agreement and (ii) the KG Termination Date, directly or indirectly,
alone or in concert with others, unless specifically requested in writing by a
Principal Holder or by a resolution of a majority of the Directors or pursuant
to a transaction (x) in which the Company has entered into a definitive
agreement or (y) the Board has recommended in favor of, take any of the actions
set forth below (or take any action that would require the Company to make an
announcement regarding any of the following):
(a) effect, seek, offer, engage in, propose (whether publicly or
otherwise) or cause or participate in, or assist any other Person to effect,
seek, engage in, offer or propose (whether publicly or otherwise) or participate
in:
(i) any tender or exchange offer, merger, consolidation, share
exchange, business combination, recapitalization, restructuring,
liquidation, dissolution or other extraordinary transaction involving the
Company or any of its subsidiaries or any material portion of its or their
business or any purchase of all or any substantial part of the assets of
the Company or any of its subsidiaries or any material portion of its or
their business; or
(ii) any "solicitation" of "proxies" (as such terms are used in the
proxy rules of the SEC but without regard to the exclusion set forth in
Section 14a-1(1)(2)(iv) from the definition of "solicitation") with
respect to the Company or any of its Affiliates or any
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action resulting in Xxxx Xxxxx, Vulcan, any Affiliate of Xxxx Xxxxx or
Vulcan or such other Person becoming a "participant" in any "election
contest" (as such terms are used in the proxy rules of the SEC) with
respect to the Company or any of its subsidiaries;
(b) propose any matter for submission to a vote of stockholders of
the Company or call or seek to call a meeting of the stockholders of the
Company;
(c) seek election to, seek to place a representative on or seek the
removal of any Director, except the Class C Director pursuant to the Charter;
provided, however, that nothing in this Section 4.02(c) shall restrict the
manner in which a Vulcan Stockholder may vote its shares of Common Stock;
(d) grant any proxy with respect to any Common Stock (other than to
a Principal Holder, the Chief Executive Officer of the Company or a bona fide
financial institution in connection with a bona fide recourse borrowing);
(e) execute any written consent with respect to any Common Stock
other than in respect of the election or removal of the Class C Director or at
the request of a Principal Holder or the Chief Executive Officer of the Company;
(f) form, join or participate in a Group with respect to any Common
Stock or deposit any Common Stock in a voting trust or subject any Common Stock
to any arrangement or agreement with respect to the voting of such Common Stock
or other agreement having similar effect (in each case except with the Class B
Holders);
(g) except pursuant to the Charter as it relates to the Class C
Director, take any other action to seek to affect the control of the management
or Board of the Company or any of its Affiliates, including publicly suggesting
or announcing its willingness to engage in or have another Person engage in a
transaction that could reasonably be expected to result in a transaction of the
type described in Section 4.02(a)(i); provided, however, that nothing in this
Section 4.02(g) shall restrict the manner in which a Vulcan Stockholder may vote
its shares of Common Stock;
(h) enter into any discussions, negotiations, arrangements or
understandings with any Person with respect to any of the foregoing, or advise,
assist, encourage or seek to persuade others to take any action with respect to
any of the foregoing (in each case except with the Class B Holders);
(i) disclose to any Person, or otherwise induce, encourage, discuss
or facilitate, any intention, plan or arrangement inconsistent with the
foregoing or with the restrictions on transfer set forth in Article III or which
would result in the Company or any of its Affiliates or any Class B Holder or
any Affiliates of any Class B Holder being required to make any such disclosure
in any filing with a governmental entity or being required to make a public
announcement with respect thereto;
(j) bring any action or otherwise act to contest the validity of
this Article IV (including this Section 4.02) or seek a release from the
restrictions contained in this Article IV; or
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(k) request the Company or any of its Affiliates, directors,
officers, employees, representatives, advisors or agents, or any party hereto,
directly or indirectly, to amend or waive this Article IV, the Charter or the
Restated By-laws (or similar constituent documents) of the Company or any of its
Affiliates (except for such amendments and waivers relating to the rights,
powers or preferences of the Class C Stock or the Class C Director).
Each of Xxxx Xxxxx and each Vulcan Stockholder covenants and agrees
with the Company that they shall not cause any of their respective Affiliates
that are listed on a national securities exchange to take any of the actions
prohibited by this Section 4.02 and will not vote any securities of any such
Affiliate in favor of the taking of such actions (in each case, as if this
Section 4.01 applied to such Affiliates). Notwithstanding the foregoing, nothing
in this Section 4.02 shall in any way restrict the Class C Director, in his
capacity as a Director or Board committee member, from exercising his or her
fiduciary duties and taking any action in such capacity (including voting in his
capacity as a Director or Board committee member) that he deems to be in the
best interest of the Company.
Section 4.03. Exceptions to Standstill. Notwithstanding Section 4.01
or Section 4.02, none of Xxxx Xxxxx nor any Vulcan Stockholder nor any Xxxxxxxxx
Party (with respect to the restrictions set forth in Section 4.02) shall be
subject to any of the restrictions set forth therein if (a) the Company shall
have entered into a definitive agreement providing for, or, in the case of
clause (ii) below, the Board of Directors of the Company shall have recommended
in favor of, (i) any direct or indirect acquisition or purchase by any Person or
Group of a majority of the Common Stock of the Company, (ii) any tender offer or
exchange offer that if consummated would result in any Person or Group acquiring
a majority of the Common Stock of the Company or (iii) any merger,
consolidation, share exchange or other business combination involving the
Company which, if consummated, would result in the stockholders of the Company
immediately prior to the consummation of such transaction ceasing to own at
least a majority of the equity interests in the surviving entity (or any direct
or indirect parent of such surviving entity); (b) any Person or Group (other
than the Company, any Class B Holder, any Vulcan Party or any Group that
includes a Vulcan Party) acquires 25% or more of the number of then outstanding
shares of Common Stock or other voting securities of the Company having the
right to vote generally in the election of Directors; (c) any Class B Holder,
Principal, Family Group Member or any of their respective Affiliates commences
(x) a "going private" transaction subject to Rule 13e-3 under Section 13(e) of
the Exchange Act involving the Company or any of its material subsidiaries or
(y) a transaction of the type contemplated in clause (a) above; or (d) the KG
Termination Date shall have occurred.
ARTICLE V
Term
Section 5.01. Term. This Agreement shall become effective on the
Separation Date and shall continue in effect until the later of (i) such time as
all outstanding shares of Class B Stock shall have been converted to Class A
Stock and (ii) the fifth anniversary hereof; provided, however, that this
Agreement shall terminate as to each of Xxxx Xxxxx and each Vulcan Stockholder
at such time, following the Final Allocation, as the Vulcan Stockholders shall
cease to Beneficially Own in the aggregate at least 5% of the issued and
outstanding Common Stock.
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ARTICLE VI
General Provisions
Section 6.01. 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
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxxx, General Counsel
with a copy to:
Cravath, Swaine & Xxxxx LLP
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxx
(ii) if to Vulcan, to:
Vulcan Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention:
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx
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(iii) if to any other party hereto, to the address of such party
specified on the signature page hereto.
Section 6.02. 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.
Section 6.03. 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 Class B 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 6.04. 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 6.05. 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 6.06. Assignment; Amendments. (a) Except as provided in
Section 3.03, 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 or waiver of this Agreement shall be effective
unless it shall be in writing and signed by the Company and each of the parties
hereto; provided, that the Xxxxxxxxx Parties shall only be permitted to consent
to amendments to Sections 4.02 and 4.03.
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Section 6.07. Enforcement. (a) Each of the Company and 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 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 of the Company and 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 of the
Company and each party hereto hereby waives (i) any and all defenses they 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 6.08. 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 6.09. 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 6.01 herein; 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.
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IN WITNESS WHEREOF, the Company, Holdco, M&J K, the M&J K GRATs, the
1994 Irrevocable Trust, XX-XX, Vulcan, Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxxx and Xxxx
Xxxxx have duly executed this Stockholder Agreement as of the date first written
above.
DREAMWORKS ANIMATION SKG, INC.,
By
-------------------------------------
Name:
Title:
[holdco LLLP],
By
-------------------------------------
Name:
Title:
Address:
M&J K DREAM LIMITED PARTNERSHIP,
By M&J K DREAM CORP.,
General Partner
By
---------------------------------
Name: Xxxxxxx Xxxxxxxxxx
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:
XXXXXXXXXX 1994 IRREVOCABLE TRUST,
By
---------------------------------
Name:
Title: Trustee
Address:
XX-XX, L.P.,
By XX-XX, INC.,
General Partner
By
------------------------------
Name: Xxxxx Xxxxxx
Title: President
Address:
[VULCAN],
by
---------------------------------
Name:
Title:
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XXXXXXX XXXXXXXXXX
--------------------------------
Address:
XXXXX XXXXXX
--------------------------------
Address:
XXXX XXXXX
--------------------------------
Address:
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ONLY AS TO SECTIONS 4.02 AND 4.03:
DW LIPS, L.P.,
By DW SUBS, INC.,
General Partner
By
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
Address:
XXXXXX XXXXXXXXX
--------------------------------
Address:
22
