Exhibit 2.1

EXECUTION COPY

 

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AGREEMENT AND PLAN OF MERGER

dated as of April 28, 2016,

among

COMCAST CORPORATION,

COMCAST PARIS NEWCO, INC.

and

DREAMWORKS ANIMATION SKG, INC.

 

 

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TABLE OF CONTENTS

 

 

 

 

 

 

Defined Term	Location of Definition
Acceptable Confidentiality Agreement	4.03(h)
Adverse Recommendation Change	4.03(e)
affiliate	8.03
Agreement	Preamble
Anti-Corruption Laws	8.03
Appraisal Shares	1.07(d)
Authorizations	2.15
Book-Entry Shares	8.03
business day	8.03
Certificate of Merger	1.03
Certificates	1.08(h)(i)
Class A Certificates	1.08(b)
Class A Stock	2.02(a)
Class B Certificates	1.08(h)(i)
Class B Stock	2.02(a)
Class C Stock	2.02(a)
close family member	8.03
Closing	1.02
Closing Date	1.02
Code	8.03
Collective Bargaining Agreement	2.10
Commonly Controlled Entity	2.11(i)(i)
Company	Preamble
Company 401(k) Plan	5.05(d)
Company Balance Sheet	2.06(d)
Company Benefit Agreement	2.11(i)(ii)
Company Benefit Plan	2.11(i)(iii)
Company Board	2.04(b)
Company Board Recommendation	2.04(b)
Company By-laws	2.01
Company Charter	2.01
Company Common Stock	2.02(a)
Company Disclosure Letter	Article II
Company Employee	5.05(a)
Company ESPP	5.04(d)(i)
Company Intellectual Property	2.17(g)(i)
Company Material Adverse Effect	8.03
Company Performance Restricted Stock Unit	5.04(d)(iii)
Company Preferred Stock	2.02(a)
Company Restricted Share	5.04(d)(ii)

Defined Term	Location of Definition
Company Restricted Stock Unit	5.04(d)(iv)
Company SEC Documents	2.06(a)
Company Stock Appreciation Right	5.04(d)(v)
Company Stock Option	5.04(d)(vi)
Company Stock Plans	5.04(d)(vii)
Company Subsidiaries	2.01
Company Takeover Proposal	4.03(h)
Company Termination Fee	5.07(b)
Confidentiality Agreement	5.02
Consent	2.05(b)
Consulting Agreement	Recitals
Continuation Period	5.05(a)
Contract	2.05(a)
control	8.03
DGCL	Recitals
Direct Registration System	8.03
DOJ	5.03(b)
EC Merger Regulation	8.03
Effective Time	1.03
Environmental Law	2.16(b)
ERISA	2.11(c)
European Commission	8.03
Exchange Act	2.05(b)
Exchange Fund	1.08(a)
Existing D&O Policies	5.06(c)
Exploit	2.17(g)(ii)
Exploitation	2.17(g)(ii)
Filed Company SEC Documents	Article II
Films	2.17(g)(iii)
Foreign Merger Control Laws	2.05(b)
FTC	5.03(b)
GAAP	2.06(c)
Government Official	8.03
Governmental Entity	2.05(b)
HSR Act	2.05(b)
Indemnified Party	5.06(a)
Information Statement	5.01(b)
Intellectual Property	2.17(g)(iv)
Intervening Event	4.03(h)
IP Contracts	2.17(g)(v)
IT Assets	2.17(g)(vi)
Judgment	2.05(a)
knowledge	8.03

Defined Term	Location of Definition
Law	2.05(a)
Legal Restraints	6.01(c)
Library Films	2.17(g)(vii)
Liens	2.03(a)
Measurement Date	2.02(b)
Merger	Recitals
Merger Consideration	1.07(c)
Merger Sub	Preamble
Multiemployer Plan	2.10
Non-Owned Intellectual Property	2.17(g)(viii)
Outside Date	7.01(b)(i)
Owned Intellectual Property	2.17(g)(ix)
Parent	Preamble
Parent Material Adverse Effect	8.03
Parent Termination Fee	5.07(d)
Paying Agent	1.08(a)
Permitted Liens	2.12
Person	8.03
Proceeding	2.14
Proxy Statement	5.01(c)
Qualifying Company Takeover Proposal	4.03(c)
Remedial Action	5.03(c)
Representatives	4.03(a)
Required Regulatory Approvals	6.01(b)
SEC	Article II
Section 262	1.07(d)
Securities Act	2.06(b)
Specified Contract	2.13(a)
Stockholder Approval	2.04(a)
Stockholder Consent	5.01(a)
subsidiary	8.03
Superior Company Proposal	4.03(h)
Support Agreement	Recitals
Surviving Corporation	1.01
Surviving Corporation Plans	5.05(a)
Tax Receivable Agreement	8.03
Tax Return	8.03
Taxes	8.03
Trade Secrets	2.17(g)(iv)
Transactions	2.04(a)
Transfer Taxes	5.09
Voting Company Debt	2.02(e)

AGREEMENT AND PLAN OF MERGER dated as of April 28, 2016 (this “Agreement”), among Comcast Corporation, a Pennsylvania corporation (“Parent”), Comcast Paris NewCo, Inc., a Delaware corporation (“Merger Sub”) and a wholly owned subsidiary of Parent, and DreamWorks Animation SKG, Inc., a Delaware corporation (the “Company”).

WHEREAS, the respective Boards of Directors of Parent, Merger Sub and the Company (in the case of the Company, by the unanimous vote of the independent members thereof) (i) have approved and declared advisable the acquisition of the Company by Parent on the terms and subject to the conditions set forth in this Agreement and (ii) have approved the merger (the “Merger”) of Merger Sub into the Company on the terms and subject to the conditions set forth in this Agreement, whereby, except as expressly provided in Section 1.07, each issued and outstanding share of Class A Stock will be converted into the right to receive $41.00 in cash and each issued and outstanding share of Class B Stock will be converted into the right to receive $41.00 in cash;

WHEREAS, following the execution and delivery of this Agreement, and as a condition and material inducement to Parent to enter into this Agreement, the Company has agreed to use its best efforts to obtain a written consent from certain stockholders of the Company pursuant to which such holders will approve and adopt this Agreement in accordance with Section 251(c) of the General Corporation Law of the State of Delaware (the “DGCL”) as more particularly set forth herein;

WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition to the willingness of Parent and Merger Sub to enter into this Agreement, Parent and Jeffrey Katzenberg have entered into (i) a support agreement (the “Support Agreement”), which shall become effective in accordance with its terms concurrently herewith, and (ii) a consulting agreement (the “Consulting Agreement”), which shall become effective in accordance with its terms at the Effective Time;

WHEREAS, the Company Board, by the unanimous vote of the independent members thereof, has resolved, subject to Section 4.03, to recommend that the holders of Company Common Stock vote in favor of the adoption of this Agreement; and

WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger.

NOW, THEREFORE, the parties hereto agree as follows:

ARTICLE I

merged with and into the Company at the Effective Time.  At the Effective Time, the separate corporate existence of Merger Sub shall cease and the Company shall continue as the surviving corporation (the “Surviving Corporation”).

resignation or removal or until their respective successors are duly elected or appointed and qualified, as the case may be.

Consideration as provided in Section 1.07(c), without interest. The Company shall serve prompt notice to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock, and Parent shall have the right to participate in and direct all negotiations and Proceedings with respect to such demands.  Prior to the Effective Time, the Company shall not, without the prior written consent of Parent, make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing.

Until surrendered as contemplated by this Section 1.08, each Class A Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the amount of cash, without interest, into which the shares of Class A Stock theretofore represented by such Class A Certificate have been converted pursuant to Section 1.07(c).  No interest shall be paid or accrue on the cash payable upon surrender of any Class A Certificate.

diminishes for any reason below the level required for the Paying Agent to promptly pay the Merger Consideration to all holders of Class A Certificates or Book-Entry Shares of Class A Stock, Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a level sufficient for the Paying Agent to make such payments.

ARTICLE II

Except (a) other than in respect of Section 2.02(a) through (f), as disclosed in the reports, schedules, forms, statements and other documents filed by the Company with, or furnished by the Company to, the Securities and Exchange Commission (the “SEC”) and publicly available subsequent to January 1, 2015 and prior to the date of this Agreement (the “Filed Company SEC Documents”) (excluding any exhibits to any Filed Company SEC Documents or any disclosures contained in any part of any Filed Company SEC Document entitled “Risk Factors”, disclosures set forth in any “Forward-Looking Statements” disclaimer or any other disclosures set forth in the Filed Company SEC Documents to the extent they are cautionary, non-specific or predictive in nature; it

being understood that any factual information contained within such headings, disclosures or statements shall not be excluded) or (b) as set forth in the letter, dated as of the date of this Agreement, from the Company to Parent and Merger Sub (which shall be arranged in numbered and lettered sections corresponding to the numbered and lettered sections contained in this Article II, and the disclosure in any section shall be deemed to qualify or apply to other sections in this Article II to the extent that it is reasonably apparent on its face that such disclosure also qualifies or applies to such other sections) (the “Company Disclosure Letter”), the Company represents and warrants to Parent and Merger Sub as follows:

or exchangeable for, securities having the right to vote) on any matters on which holders of Company Common Stock may vote (“Voting Company Debt”).

their adoption.  To the knowledge of the Company, no state takeover statute or similar statute or regulation applies to the Company with respect to this Agreement, the Merger or any other Transaction.

Parent or Merger Sub (as opposed to any third Person) in the Transactions or (B) that the failure of which to obtain or make would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.

surrender of shares of Company Common Stock by holders of Company Stock Options in order to pay the exercise price of Company Stock Options, (B) the withholding of shares of Company Common Stock to satisfy Tax obligations with respect to Company Stock Options, Company Restricted Stock Units, Company Performance Restricted Stock Units, Company Stock Appreciation Rights, other awards granted pursuant to the Company Stock Plans and the vesting of Company Restricted Shares and (C) the acquisition by the Company of Company Stock Options, Company Restricted Stock Units, Company Performance Restricted Stock Units, Company Stock Appreciation Rights, other awards granted pursuant to the Company Stock Plans and Company Restricted Shares in connection with the forfeiture of such awards, in each case in accordance with the terms of the applicable award;

(other than a Permitted Lien), any properties or assets (other than Intellectual Property) that are material, individually or in the aggregate, to the Company and the Company Subsidiaries, taken as a whole, except sales, leases, licenses or other dispositions of inventory and excess or obsolete properties or assets in the ordinary course of business;

similar Governmental Entity that would reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.  The Company, and each Company Subsidiary, has complied with its obligations under the Collective Bargaining Agreements and any “multiemployer plan” (within the meaning of Section 3(37) of ERISA) (a “Multiemployer Plan”) in which the Company or any Company Subsidiary is a party or by which the Company or any Company Subsidiary is bound, other than failures to comply that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

or has any actual or contingent liability under, any Company Benefit Plan that is subject to Section 302 or Title IV of ERISA or Section 412 of the Code.

or former director, officer, employee or other service provider of the Company or any Company Subsidiary, other than (A) any Multiemployer Plan or (B) any plan, policy, program, arrangement or understanding mandated by applicable Law.

 

expired and were not renewed in the ordinary course of business) or were executed after the date thereof and all such leases are in full force and effect.

Each such Contract described in clauses (i) through (xii) above is referred to herein as a “Specified Contract”.

reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.

enforceable rights to use, the Company Intellectual Property in the manner that the Company and the Company Subsidiaries currently use such Company Intellectual Property to conduct their businesses, except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.  There are no Proceedings that may cause any Owned Intellectual Property to be invalid or unenforceable and the Company has not received any written notice from any Person since January 1, 2015 bringing or threatening to bring such Proceedings.  Neither the Company nor any of the Company Subsidiaries has dedicated to the public domain, or forfeited or abandoned or otherwise allowed to become public domain any material Owned Intellectual Property.  All material registration, maintenance and renewal fees and filings in respect of the Owned Intellectual Property listed in Section 2.17(b) of the Company Disclosure Letter have been paid to and/or filed with the relevant Governmental Entities for the purpose of maintaining such Owned Intellectual Property, other than pursuant to intentional abandonment and similar portfolio maintenance decisions made in the ordinary course of business.  Nothing in this Section 2.17(a) shall be interpreted or construed as a representation or warranty with respect to infringement, misappropriation or violation of Intellectual Property.

or certificate of results and proceeds) or work-made-for-hire provision, except where failure to do so would not be material to the Company and the Company Subsidiaries, taken as a whole.

technology.  To the knowledge of the Company, there have been no material unauthorized use, access, interruption, modification or corruption of any material IT Assets used by the Company or the Company Subsidiaries (or any information or data stored or contained therein or transmitted thereby) since January 1, 2014.

ARTICLE III

Parent and Merger Sub, jointly and severally, represent and warrant to the Company that:

power and authority would not reasonably be expected to, individually or in the aggregate, have a Parent Material Adverse Effect.

the availability of equitable remedies, whether considered in a Proceeding at law or in equity).

other similar fee or commission in connection with the Merger and the other Transactions based upon arrangements made by or on behalf of Parent or any of its affiliates.

ARTICLE IV

partnership, limited liability company, joint venture, association or other business organization or division thereof or any other Person (other than the Company or any Company Subsidiary), if the aggregate amount of consideration paid or transferred by the Company and the Company Subsidiaries would, individually or in the aggregate, exceed $25,000,000;

foregoing or (ii) make any loans, advances or capital contributions to, or investments in, any other Person, other than to or in (A) the Company or any Company Subsidiary or (B) any acquisition not in violation of clause (d) above, and other than extensions of trade credit and advances of expenses to employees, in each case in the ordinary course of business;

ordinary course of prosecution, where a continuation, continuation-in-part, request for continued examination or divisional application (or foreign equivalent of any of the foregoing) is filed, (ii) grant, extend, amend, waive or modify any rights in or to the Company Intellectual Property, other than any grant, extension, amendment, waiver or modification that is not material to the Company and the Company Subsidiaries, taken as a whole, (iii) enter into any IP Contract that is material to the Company and the Company Subsidiaries, taken as a whole, or (iv) amend, terminate, request or agree to a change, fail to exercise a right of renewal or extension, or waive, release or assign any right or claim under any IP Contract, other than any amendment, termination, request, agreement, failure, waiver, release or assignment that is not material to the Company and the Company Subsidiaries, taken as a whole or (v) except as is in the ordinary course on a non-exclusive basis, enter into, amend, supplement, renew or extend any IP Contract between the Company or any of the Company Subsidiaries, on the one hand, and Oriental DreamWorks Holding Limited or any of its subsidiaries, on the other hand, or otherwise grant Oriental DreamWorks Holding Limited or any of its subsidiaries any additional or expanded rights, licenses or sublicenses with respect to any Intellectual Property;

be a breach of this Section 4.03(a) by the Company. The standstill provisions of the Confidentiality Agreement are hereby waived by the Company.

approve or recommend, any Company Takeover Proposal or resolve or agree to take any such action (any action described in this clause (i) being referred to herein as an “Adverse Recommendation Change”) or (ii) permit or cause the Company or any Company Subsidiary to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, option agreement, merger agreement, joint venture agreement, partnership agreement or other agreement relating to any Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 4.03), or publicly propose to take any such action.  Notwithstanding anything to the contrary in the foregoing or any other provision of this Agreement, but subject to Section 4.03(f), if the Company Board determines, by the affirmative vote of the majority of the independent members thereof, in good faith, after consultation with outside counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, then (A) the Company Board, by the affirmative vote of the majority of the independent members thereof, may make an Adverse Recommendation Change in response to a Superior Company Proposal or an Intervening Event, and (B) if the Company Board receives a Superior Company Proposal, the Company may terminate this Agreement pursuant to Section 7.01(f) in accordance with Section 7.04(b).

(to the extent Parent desires to negotiate) with respect to any revisions proposed by Parent to the terms of this Agreement and the Transactions.

“Acceptable Confidentiality Agreement” means a customary confidentiality agreement that contains confidentiality provisions that are no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement; provided that such confidentiality agreement may omit a standstill or contain standstill provisions that are less favorable to the Company than those contained in the Confidentiality Agreement.

“Company Takeover Proposal” means any inquiry, proposal or offer from any Person or group relating to (i) any direct or indirect acquisition or purchase, in a single transaction or a series of related transactions, of (A) 20% or more (based on the fair market value thereof, as reasonably determined by the Company Board by the affirmative vote of the majority of the independent members thereof) of the assets (including capital stock of the Company Subsidiaries) of the Company and Company Subsidiaries, taken as a whole, or (B) 20% or more of the aggregate voting power of the capital stock, or of any class of capital stock, of the Company or (ii) any tender offer, exchange offer, merger, consolidation, business combination, recapitalization, liquidation, dissolution, binding share exchange or similar transaction involving the Company that, if consummated, would result in any Person or group (or the shareholders of any Person) owning, directly or indirectly, 20% or more of the aggregate voting power of the capital stock, or of any class of capital stock, of the Company or of the surviving entity or the resulting direct or indirect parent of the Company or such surviving entity, other than, in each case, the Transactions.

“Intervening Event” means an event, fact, circumstance, development or occurrence that (a) was not known to or reasonably foreseeable by the Company Board as of the date of this Agreement and does not relate to a Company Takeover Proposal,

which event or circumstance becomes known to the Company Board prior to the receipt of the Stockholder Approval or (b) was known to or reasonably foreseeable by the Company Board as of the date of this Agreement, but the consequences of which were not.

“Superior Company Proposal” means any bona fide written Company Takeover Proposal that if consummated would result in a Person or group (or the shareholders of any Person) owning, directly or indirectly, (i) 50% or more of the aggregate voting power, and 50% or more of the aggregate number of outstanding common shares, of the capital stock of the Company or of the surviving entity or the resulting direct or indirect parent of the Company or such surviving entity or (ii) 50% or more (based on the fair market value thereof, as reasonably determined by the Company Board by the affirmative vote of the majority of the independent members thereof) of the assets (including capital stock of the Company Subsidiaries) of the Company and Company Subsidiaries, taken as a whole, (A) on terms which the Company Board, by the affirmative vote of the majority of the independent members thereof, determines, in good faith, after consultation with outside counsel and a financial advisor, are more favorable to the holders of Company Common Stock from a financial point of view than the Transactions, taking into account all the terms and conditions of such proposal and this Agreement and (B) that is reasonably capable of being completed, taking into account all financial, regulatory, legal and other aspects of such proposal.

Wherever the term “group” is used in this Section 4.03(h), it is used as defined in Rule 13d-5 under the Exchange Act.

ARTICLE V

Transactions (such information statement, including any amendment or supplement thereto, the “Information Statement”), (ii) the notice of action by written consent required by Section 228(e) of the DGCL and (iii) the notice of availability of appraisal rights and related disclosure required by Section 262 of the DGCL. Each of the Company and Parent shall furnish all information concerning such Person to the other as may be reasonably requested in connection with the preparation, filing and distribution of the Information Statement. The Company shall promptly notify Parent upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Information Statement and shall provide Parent with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Each of the Company and Parent shall use commercially reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect to the Information Statement. Notwithstanding the foregoing, prior to filing or mailing the Information Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide Parent a reasonable opportunity to review and comment on such document or response and (ii) shall include in such document or response all comments reasonably proposed by Parent. If, at any time prior to the date that is 20 days after the Information Statement is first mailed to the Company’s stockholders, any information relating to the Company, Parent or any of their respective affiliates, officers or directors should be discovered by the Company or Parent which is required to be set forth in an amendment or supplement to the Information Statement, so that the Information Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other parties hereto, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company.

reasonable best efforts to obtain the approval of this Agreement by the stockholders of the Company.

any of the Transactions, including avoiding the entry of and seeking to have any stay, injunction, temporary restraining order or other restraint entered by any court or other Governmental Entity lifted, vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and the Company Board shall (A) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any Transaction or this Agreement and (B) if any state takeover statute or similar statute or regulation becomes applicable to any Transaction or this Agreement, take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Transactions and this Agreement.

to requests or objections made by any Governmental Entity and (5) furnish the other party with copies of all filings, submissions, correspondence and communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective Representatives, on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement, the Merger and the other Transactions and (D) comply with any inquiry or request from the FTC, the DOJ, the European Commission or any other Governmental Entity as promptly as reasonably practicable.  Any information provided by a party in response to a request for additional information from the FTC, the DOJ, the European Commission or any other Governmental Entity shall be in substantial compliance with the requirements of the HSR Act, the EC Merger Regulation or the other applicable Foreign Merger Control Law, as the case may be.  Notwithstanding anything to the contrary contained in this Agreement, but subject to Parent’s obligations set forth in this Section 5.03, Parent shall have the right, following consultation with the Company and after giving due consideration to its views and acting reasonably and in good faith, to direct all matters with any Governmental Entity consistent with its obligations hereunder and Parent shall have the principal responsibility for devising and implementing the strategy for obtaining any necessary antitrust or competition clearances.

Plans) shall adopt such resolutions and take such other actions as may be required to effect the following:

Appreciation Rights and Company Restricted Shares, as applicable, who remain employees of Parent or one of its subsidiaries (including the Surviving Corporation) at the time of such payment and (ii) Parent shall cause the Paying Agent to pay, in accordance with the applicable provisions of Section 1.08, all amounts payable pursuant to Section 5.04(a) to the former holders of Company Stock Options, Company Restricted Stock Units, Company Performance Restricted Stock Units, Company Stock Appreciation Rights and Company Restricted Shares, as applicable, who are not eligible to be paid through the Surviving Corporation’s or Parent’s payroll systems; provided, however, that, to the extent any such amounts relate to a Company Stock Option, Company Restricted Stock Unit, Company Performance Restricted Stock Unit or Company Stock Appreciation Rights that constitutes nonqualified deferred compensation subject to Section 409A of the Code, such amounts shall be paid at the earliest time following the Effective Time that is permitted under the terms of the applicable agreement or Company Stock Plan relating to such Company Stock Option, Company Restricted Stock Unit, Company Performance Restricted Stock Unit or Company Stock Appreciation Rights that will not trigger a tax or penalty under Section 409A of the Code.  For the avoidance of doubt, Parent shall provide to the Paying Agent, immediately after the Effective Time, cash necessary to pay the amounts payable pursuant to Section 5.04(a) to the former holders of Company Stock Options, Company Restricted Stock Units, Company Performance Restricted Stock Units, Company Stock Appreciation Rights and Company Restricted Shares, as applicable, who are not eligible to be paid through the Surviving Corporation’s or Parent’s payroll systems (and such cash shall constitute part of the Exchange Fund).

Subsidiary, to the extent service with the predecessor employer is recognized by the Company or such Company Subsidiary) shall be treated as service with Parent or any of their respective Subsidiaries; provided, however, that such service need not be recognized to the extent that such recognition would result in any duplication of benefits for the same period of service.

program or any plan or arrangement of Parent or any of its subsidiaries.  Nothing herein shall be construed as an amendment to any Company Benefit Plan, Company Benefit Agreement or plan, program, policy, agreement, arrangement or understanding of Parent.

Indemnified Party could seek indemnification hereunder; provided that, absent an actual or potential conflict of interest, in which case such Indemnified Party shall control and appoint its own lead counsel at Parent’s or the Surviving Corporation’s expense, as applicable, Parent and the Surviving Corporation shall be entitled to control and appoint lead counsel for such defense.  Parent’s and the Surviving Corporation’s obligations under this Section 5.06(b) shall continue in full force and effect for the six-year period beginning upon the Effective Time; provided, however, that all rights to indemnification in respect of any Proceeding asserted or made within such period shall continue until the final disposition of such Proceeding.

Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (B) transfers or conveys all or a substantial portion of its properties and other assets to any Person or (ii) Parent or any of its successors or assigns dissolves the Surviving Corporation, then, and in each such case, Parent shall cause proper provision to be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 5.06.

then the Company shall pay to Parent a fee of $152,000,000 (the “Company Termination Fee”); provided that, in the case of Section 5.07(b)(iii)(C)(y), only 50% of the Company Termination Fee shall be payable upon the Company’s entry into such definitive

agreement, and the remaining 50% of the Company Termination Fee shall become payable if and only if the transactions contemplated by such definitive agreement are subsequently consummated.  For purposes of this Section 5.07(b), the term “Company Takeover Proposal” shall have the meaning assigned to such term in Section 4.03(h), except that all references to (x) “20%” in clause (i)(A) of such definition shall be deemed references to “50%” and (y) “20% or more of the aggregate voting power of the capital stock, or of any class of capital stock, of the Company” in clause (i)(B) and clause (ii) of such definition shall be deemed references to “50% or more of the aggregate voting power, and 50% or more of the aggregate number of outstanding common shares, of the capital stock of the Company.”  Any fee due under this Section 5.07(b) shall be paid by wire transfer of same-day funds to an account designated by Parent as follows:  (1) in the case of Section 5.07(b)(i), the Company Termination Fee shall be paid prior to or simultaneously with such termination of this Agreement, (2) in the case of Section 5.07(b)(ii), the Company Termination Fee shall be paid within two business days after the date of such termination of this Agreement, (3) in the case of Section 5.07(b)(iii)(C)(x), the Company Termination Fee shall be paid within two business days after the date of the consummation of the transactions contemplated by such Company Takeover Proposal and (4) in the case of Section 5.07(b)(iii)(C)(y), 50% of the Company Termination Fee shall be paid within two business days after the execution of such definitive agreement and the remaining 50% of the Company Termination Fee, if payable pursuant to the proviso to the first sentence of Section 5.07(b), shall be paid within two business days after the consummation of the transactions contemplated by such definitive agreement.  The parties hereto acknowledge and agree that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion, whether or not the Company Termination Fee may be payable under more than one provision of this Agreement at the same or at different times and the occurrence of different events.

date of such termination), then Parent shall pay to the Company a fee of $200,000,000 (the “Parent Termination Fee”).  Any fee due under this Section 5.07(d) shall be paid by wire transfer of same-day funds to an account designated by the Company no later than two business days after the date of the termination of this Agreement.  The parties hereto acknowledge and agree that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion.

initial press release to be issued with respect to the Transactions shall be in the form heretofore agreed to by the parties.

ARTICLE VI

though made on the Closing Date (except to the extent such representation or warranty expressly relates to a specified date, in which case on and as of such specified date), except, in the case of this clause (iii), where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Parent shall have received a certificate signed on behalf of the Company by an executive officer thereof to such effect.

Section 6.02 to be satisfied if such failure was caused by the failure of Parent or Merger Sub to perform any of its obligations under this Agreement, to act in good faith or to use its reasonable best efforts to consummate the Merger and the other Transactions, as required by and subject to Section 5.03.  The Company may not rely on the failure of any condition set forth in Section 6.01 or Section 6.03 to be satisfied if such failure was caused by its failure to perform any of its obligations under this Agreement, to act in good faith or to use its reasonable best efforts to consummate the Merger and the other Transactions, as required by and subject to Section 5.03.

ARTICLE VII

not then in material breach of any representation, warranty or covenant contained in this Agreement);

The party desiring to terminate this Agreement pursuant to this Section 7.01 (other than pursuant to Section 7.01(a)) shall give written notice of such termination to the other party in accordance with Section 8.02.

party with any of the agreements or conditions contained in this Agreement (treating Parent and Merger Sub as one party for this purpose).  Notwithstanding the foregoing, (A) after the receipt of the Stockholder Approval, there shall be made no amendment to this Agreement that by Law requires further approval by the stockholders of the Company without such approval having been obtained and (B) no amendment shall be made to this Agreement after the Effective Time.

ARTICLE VIII

the respective parties at the following addresses (or at such other address for a party as shall be specified by like notice):

 

 

 

 

An “affiliate” of any Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person.  As used herein, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or other interests, by contract or otherwise.

“Anti-Corruption Laws” means the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and all other applicable anti-corruption laws.

“Book-Entry Shares” means shares of Company Common Stock held in the Direct Registration System.

A “business day” means any day on which the principal offices of the SEC in Washington, D.C., are open to accept filings or, in the case of determining a date when any payment is due, any day on which banks are not required or authorized by Law to close in New York, New York.

“Code” means the Internal Revenue Code of 1986.

“Company Material Adverse Effect” means any change, event, effect or occurrence that (i) has had, or would reasonably be expected to have, a material adverse effect on the business, assets, financial condition or results of operations of the Company and the Company Subsidiaries, taken as a whole; provided, however, that none of the following shall be deemed either alone or in combination to constitute, and none of the following shall be taken into account in determining whether there has been, a Company Material Adverse Effect: any change, event, effect or occurrence to the extent resulting from or arising in connection with (A) general conditions in the industries in which the Company and the Company Subsidiaries operate, (B) general economic or regulatory, legislative or political conditions or securities, credit, financial or other capital markets conditions (including changes generally in prevailing interest rates, currency exchange rates, credit markets and price levels or trading volumes), in each case in the United States or elsewhere in the world, (C) any change or prospective change in applicable Law or GAAP (or interpretation or enforcement thereof), (D) geopolitical conditions, the outbreak or escalation of hostilities, any acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism, (E) any hurricane, tornado, flood, volcano, earthquake, pandemic or other natural or man-made disaster, (F) the failure, in and of itself, of the Company to meet any internal or published

projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics before, on or after the date of this Agreement, or changes or prospective changes in the market price or trading volume of Company Common Stock or the credit rating of the Company (it being understood that the underlying facts giving rise or contributing to such failure or change may be taken into account in determining whether there has been a Company Material Adverse Effect if such facts are not otherwise excluded under this definition), (G) the announcement, pendency or consummation of any of the Transactions, including any Proceeding in respect of this Agreement or any of the Transactions, actions specifically required by covenants contained in this Agreement (excluding the Company operating in the ordinary course of business) and any loss of or change in relationship with any current customer, supplier, distributor, vendor, joint venture partner or other business partner, or departure of any employee or officer, of the Company or any of the Company Subsidiaries to the extent resulting from or arising in connection with such announcement, pendency or consummation (it being understood that this clause (G) shall not apply with respect to a representation or warranty contained in this Agreement to the extent that the purpose of such representation or warranty is to address the consequences resulting from the execution and delivery of this Agreement or the consummation of the Transactions or the performance of obligations under this Agreement), (H) any action taken by the Company or any of the Company Subsidiaries at Parent’s written request and (I) the identity of, or any facts or circumstances relating to, Parent, Merger Sub or their respective affiliates, except, in the case of clause (A), (B), (C), (D) or (E), to the extent that the Company and the Company Subsidiaries, taken as a whole, are materially disproportionately affected thereby as compared with other participants in the industries in which the Company and the Company Subsidiaries operate (in which case the incremental disproportionate impact or impacts may be taken into account in determining whether there has been a Company Material Adverse Effect); or (ii) prevents or materially delays the consummation by the Company of the Merger and the other Transactions or the ability of the Company to perform its obligations under this Agreement in any material respect.

“Direct Registration System” means the service that provides for electronic direct registration of securities in a record holder’s name on the Company’s transfer books and allows shares to be transferred between record holders electronically.

“EC Merger Regulation” means the Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings (published in the Official Journal of the European Union on January 29, 2004 at L 24/1).

“European Commission” means the Commission of the European Union.

“Government Official” means any public or elected official or officer or employee (regardless of rank), in each case, acting on behalf of a national, provincial or local government, including a department, agency, instrumentality, state-owned or state–controlled company, public international organization (such as the United Nations or World Bank) or non-U.S. political party, non-U.S. party official or any non-U.S. candidate for political office.

“knowledge” of any Person means, with respect to any matter in question, the actual knowledge, after reasonable inquiry, of such Person’s executive officers.

“Parent Material Adverse Effect” means any change, effect, event or occurrence that prevents or materially delays (a) the consummation by Parent or Merger Sub of the Merger and the other Transactions or (b) the ability of Parent or Merger Sub to perform its obligations under this Agreement in any material respect.

A “Person” means any individual, firm, corporation, partnership, company, limited liability company, trust, joint venture, association, Governmental Entity or other entity.

A “subsidiary” of any Person means another Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such first Person.

“Tax Receivable Agreement” means that certain Tax Receivable Agreement dated as of October 27, 2004, by and among the Company and DW Investment II, Inc., a Washington subchapter S corporation.

“Tax Return” means all Tax returns, declarations, statements, reports, schedules, forms and information returns (including any amendments thereto) relating to Taxes.

“Taxes” means all taxes, imposts, levies or other like assessments or charges in the nature of taxes imposed by a Governmental Entity, together with all interest, penalties and additions imposed with respect to such amounts.

definition of or reference to any Contract, instrument or other document or any Law herein shall be construed as referring to such Contract, instrument or other document or Law as from time to time amended, supplemented or otherwise modified, but only to the extent, in the case of any material amendment, supplement or other modification to any Contract, instrument or other document listed in the Company Disclosure Letter, that such amendment, supplement or other modification is also listed in the appropriate schedule, (ii) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns, (iii) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof and (iv) all references herein to Articles, Sections and Exhibits shall be construed to refer to Articles and Sections of, and Exhibits to, this Agreement.  This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.

Company Stock Plans to the extent necessary to receive the amounts to which such holders are entitled thereunder.

with such remedy), this being in addition to any other remedy to which they are entitled at law or in equity.  The right to specific enforcement shall include the right of the Company to cause Parent and Merger Sub to cause the Merger and the other Transactions to be consummated on the terms and subject to the conditions set forth in this Agreement.  The parties further agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, nor to assert that a remedy of monetary damages would provide an adequate remedy.  Each of the parties acknowledges and agrees that the right of specific enforcement is an integral part of the transactions contemplated by this Agreement and without such right, none of the parties would have entered into this Agreement.  If, prior to the Outside Date, any party brings any Proceeding, in each case in accordance with Section 8.10(b), to enforce specifically the performance of the terms and provisions hereof by any other party, the Outside Date shall automatically be extended by (i) the amount of time during which such Proceeding is pending, plus 20 business days, or (ii) such other time period established by the court presiding over such Proceeding, as the case may be.

expressly or otherwise, that such party would not, in the event of any Proceeding, seek to enforce the foregoing waiver and (b) acknowledges that it and the other parties hereto have been induced to enter into this Agreement by, among other things, the mutual waiver and certifications in this Section 8.11.

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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have duly executed this Agreement, all as of the date first written above.

 

 

 

 

 

Exhibit A

[Form of Stockholder Written Consent]

WRITTEN CONSENT

OF CERTAIN STOCKHOLDERS OF

DREAMWORKS ANIMATION SKG, INC.

Pursuant to Section 228 of the General Corporation Law of the State of Delaware (the “DGCL”) and the Restated Certificate of Incorporation and the Amended and Restated By-laws of DreamWorks Animation SKG, Inc., a Delaware corporation (the “Company”), the undersigned, the holders of [●] shares of Class A common stock of the Company, par value $0.01 per share (“Class A Stock”), and [●] shares of Class B common stock of the Company, par value $0.01 per share (“Class B Stock” and, together with the Class A Stock, the “Company Common Stock”), constituting approximately [●]% of the voting power of the outstanding shares of the Company Common Stock, do hereby irrevocably consent as follows, and deliver this consent to the corporate secretary of the Company as the officer specified by the Company to receive it on behalf of the Company:

WHEREAS, the Board of Directors of the Company (the “Board”), by the unanimous vote of the independent members thereof, has (i) approved and declared advisable (A) the Agreement and Plan of Merger, dated as of April 28, 2016, among the Company, Comcast Corporation, a Pennsylvania corporation (“Parent”), and Comcast Paris MergerSub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), which is attached hereto as Exhibit A (the “Merger Agreement”), pursuant to which, among other things, Merger Sub will be merged with and into the Company and the Company will become a wholly owned subsidiary of Parent (the “Merger”), (B) the Merger and (C) the other transactions contemplated by the Merger Agreement (the “Transactions”), in the case of each of clauses (B) and (C), on the terms and subject to the conditions set forth in the Merger Agreement, (ii) determined that the Merger and the other Transactions, on the terms and subject to the conditions set forth in the Merger Agreement, are fair to, and in the best interests of, the

Company and its stockholders and (iii) subject to Section 4.03 of the Merger Agreement, recommended that the Company’s stockholders vote in favor of adopting the Merger Agreement;

WHEREAS, the Merger Agreement was executed by the parties thereto on April 28, 2016;

WHEREAS, the Merger Agreement provides that each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (as defined in the Merger Agreement) (other than (1) shares of Company Common Stock owned by the Company, any Company Subsidiary, Parent, Merger Sub or any other subsidiary of Parent and (2) shares that are held by any Person who is entitled to demand and properly demands appraisal in respect of such shares pursuant to, and complies in all respects with, Section 262 of DGCL) shall be cancelled and shall be converted automatically into the right to receive the Merger Consideration (as defined in the Merger Agreement);

WHEREAS, the undersigned have received a copy of the Merger Agreement and the exhibits and attachments thereto and have reviewed the Merger Agreement and such other information as they believed necessary to make an informed decision concerning their vote on the adoption of the Merger Agreement, and the undersigned have had the opportunity to consult with their own legal, tax and/or financial advisor(s) regarding the consequences to them of the Merger, the Merger Agreement and the execution of this Written Consent; and

WHEREAS, the undersigned desire to waive any rights to appraisal of the fair value of such stockholder’s shares of Company Common Stock and rights to dissent from the Merger that the undersigned may have, whether pursuant to the DGCL or otherwise.

NOW, THEREFORE, BE IT RESOLVED, that the Merger Agreement and the transactions and agreements contemplated thereby, including the Merger, be, and the same hereby are, adopted and approved in all respects.

FURTHER RESOLVED, that each of the undersigned hereby irrevocably waives any rights to appraisal of the fair value of such stockholder’s shares of Company Common Stock and any rights to dissent from the Merger that the undersigned may have, whether pursuant to the DGCL or otherwise.

Each of the undersigned hereby waives compliance with any and all notice requirements imposed by the Restated Certificate of Incorporation of the Company, the Company’s Amended and Restated By-laws, the DGCL and any other applicable law. This Written Consent is effective upon execution and may be executed in counterparts, each of which

shall be deemed an original, but all of which together shall constitute one and the same instrument.

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IN WITNESS WHEREOF, each of the undersigned has executed this written consent on the date first set forth under its name below.