EXHIBIT 4.3
STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT is dated as of February 27, 1998, among Four
Media Company, a Delaware corporation (the "Company"), Robert T. Walston
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("Walston"), John H. Donlon ("Donlon"), Gavin W. Schutz ("Schutz"), Robert
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Bailey ("Bailey"), Fleming US Discovery Fund III, L.P. and Fleming US Discovery
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Offshore Fund III, L.P. (collectively, the "Fleming Funds"). The Fleming Funds,
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any Fleming Holder and any Transferee are collectively referred to herein as the
"Investor Group" and, individually, an "Investor".
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W I T N E S S E T H:
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WHEREAS, pursuant to the terms of the Preferred Stock Purchase Agreements,
dated as of February 5, 1998, between the Company and each of the Fleming Funds
(the "Stock Purchase Agreements"), the Fleming Funds have purchased 150,000
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shares of the Company's Series A Convertible Preferred Stock, par value $.01 per
share (the "Series A Preferred Stock");
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WHEREAS, Walston beneficially owns approximately 15% of the outstanding shares
of the Company's Common Stock, par value $.01 per share (the "Common Stock")
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(such shares, along with any shares of Common Stock or other equity securities
of the Company that Walston may subsequently acquire, the "Walston Shares");
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WHEREAS, it is a condition precedent to the Company's and the Fleming Funds'
respective obligations to consummate the transactions contemplated by the Stock
Purchase Agreements that the parties hereto shall have entered into this
Agreement; and
WHEREAS, each of Walston, Donlon, Schutz, Bailey, the Company and the Fleming
Funds desires to enter into this Agreement to regulate certain aspects of their
relationship;
NOW, THEREFORE, in consideration of the arguments and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. Rights of Inclusion (Tag-Along Rights).
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(a) In the event Walston proposes to Transfer any Walston Shares (the
"Transferor Shares") to any Person (the "Buyer"), as a condition to such
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Transfer, Walston shall cause the Buyer to offer (the "Inclusion Offer") to
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purchase from each Investor, at each such Investor's option, up to that number
of Investor Shares determined in accordance with Section 1(b) on the same terms
and conditions as are applicable to the Transferor Shares (including any
consideration to be received by Walston in the form of bonuses, consulting fees,
noncompetition payments, pursuant to employment arrangements or similar
arrangements), except that each Investor shall not be required to provide any
representation, warranty or other undertaking other than with respect to its
ownership of, and authority to Transfer, the Investor Shares owned by it free of
any liens or encumbrances. Walston shall provide prompt written notice to each
Investor (the "Inclusion Notice") setting forth all the terms and conditions of
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the Inclusion Offer, and each
Investor may accept the Inclusion Offer in whole or in part by providing a
written notice of acceptance with respect to Investor Shares owned by it to
Walston within twenty (20) days of delivery of the Inclusion Notice to it (the
"Acceptance Notice").
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(b) Each Investor shall have the right to sell, pursuant to the Inclusion
Offer, Investor Shares representing the same percentage of all Investor Shares
owned by it as the Transferor Shares are of all Walston Shares (such percentage
shall be calculated on the basis that all shares of Series A Preferred Stock
owned by each Investor have been converted into shares of Common Stock at the
current conversion price per share under Section 5 of the Certificate of
Designations); provided, however, that if no Investor elects to exercise such
right, Walston shall nonetheless be entitled to Transfer all of the Transferor
Shares described in the Inclusion Notice. In the event the number of Investor
Shares for which the Investor Group elects to exercise such right, along with
the Transferor Shares and any other shares of the Company to be sold by other
stockholders pursuant to any similar rights granted to such other stockholders,
exceed the number of shares which the Buyer is willing to purchase, the number
of shares to be Transferred to the Buyer by each transferor shall be reduced so
that each transferor is entitled to Transfer the same percentage of its shares
included in its Acceptance Notice as each other transferor. If an Investor
elects to exercise such right, such Investor may, in its sole discretion,
determine the composition of the Investor Shares (i.e., the number of the shares
of Series A Preferred Stock and Common Stock to be included in the Investor
Shares) to be Transferred by it to the Buyer pursuant to the Inclusion Offer. In
the event that any Investor chooses to include any shares of Series A Preferred
Stock in the Investor Shares to be Transferred by it to the Buyer pursuant to
the Inclusion Offer, any such Investor shall, prior to or simultaneously with
such Transfer, convert such shares of Series A Preferred Stock into shares of
Common Stock so that each Investor Transfers only Common Stock to the Buyer.
(c) Walston shall have ninety (90) days, commencing on the date of the
Inclusion Notice, in which to Transfer, on behalf of himself and the Investor
Group up to the number of shares covered by the Inclusion Offer (including the
Transferor Shares) to the Buyer. The terms of such Transfer, including, without
limitation, price and form of consideration, shall be as set forth in the
Inclusion Notice. If at the end of such ninety (90) day period Walston has not
completed the Transfer of the Transferor Shares and the Investor Shares (if any)
proposed to be Transferred, Walston may not proceed with such Transfer or any
other Transfer without first giving a new Inclusion Notice pursuant to the
provisions of this Section 1.
(d) If Walston is able to complete the Transfer of the Transferor Shares
and the Investor Shares (if any) proposed to be Transferred within such ninety
(90) day period, at the closing thereof, each Investor shall deliver to the
Buyer a certificate or certificates representing the Investor Shares owned by it
to be Transferred pursuant to the Inclusion Offer, free and clear of all liens
and encumbrances, and the Buyer shall pay to each such Investor the purchase
price for the Investor Shares so Transferred pursuant to this Section 1 and
shall furnish such other evidence of the completion of such Transfer and the
terms thereof as may be reasonably requested by the Investor Group.
(e) The provisions of this Section 1 shall not apply to any Transfer or
proposed Transfer by Walston of Walston Shares which represents twenty-five
percent (25%) or less of the Walston Shares held by Walston on the date hereof
if such Transfer or proposed Transfer by Walston of Walston Shares, together
with all other Transfers by Walston of Walston Shares on or prior to the date of
such Transfer, represent fifty percent (50%) or less of the Walston Shares held
by Walston on the date hereof, with Walston Shares held by Walston on the date
hereof to be appropriately adjusted to reflect any stock split, stock dividend,
recapitalization or similar event; provided, however, that each Transfer of
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Walston Shares that takes place within one year of any other Transfer to the
same Person or any Affiliate of such Person shall be aggregated for purposes of
such twenty-five percent (25%) threshold.
2. Preemptive Rights.
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(a) Subject to Section 2(c) below, the Company hereby grants to each
Investor a right of first refusal to purchase its Pro Rata portion of any
Capital Stock which the Company may, from time to time, propose to issue. If
Capital Stock is issued as part of an issuance of other securities, such right
of first refusal shall extend to such securities as a unit.
(b) In the event the Company proposes to issue Capital Stock, it shall give
each Investor written notice (a "Preemption Notice") of its intention to do so.
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The Preemption Notice shall set forth the anticipated price (which shall be
payable solely in cash) and the general terms upon which the Company proposes to
issue the Capital Stock. Each Investor shall have thirty (30) days from the date
the Preemption Notice is given to agree to purchase all or any portion of its
Pro Rata share of such Capital Stock for the anticipated price and upon the
terms specified in the Preemption Notice by giving written notice to the Company
stating therein the quantity of Capital Stock it wishes to purchase.
(c) The provisions of this Section 2 shall not apply to the following
issuances by the Company: (i) shares of Common Stock issued to employees,
officers, directors or consultants of the Company pursuant to the Company's 1997
Stock Plan, the Company's 1997 Director Option Plan and other similar plans
approved by the Company's Board of Directors after the date hereof; (ii) 615,125
shares of Common Stock to be issued pursuant to certain management stock option
agreements; (iii) shares issued by the Company in connection with any merger,
acquisition, business combination, joint venture, partnership or limited
liability company; and (iv) shares issued in a single transaction for a purchase
price less than $500,000 and a purchase price equal to or greater than the
current Conversion Price (as defined in Section 5 of the Certificate of
Designations); provided, however, that the aggregate purchase price of all such
transactions shall not exceed $1,500,000.
(d) The provisions of this Section 2 shall terminate as to each share of
Series A Preferred Stock upon its conversion into Common Stock.
3. Board Observer Rights; CommitteesERROR! BOOKMARK NOT DEFINED..
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(a) So long as any shares of Series A Preferred Stock are outstanding, the
Fleming Holders (or if no shares of Series A Preferred Stock are held by a
Fleming Holder, any Transferee consented to by the Company (which consent
shall not be unreasonably withheld) (the "Permitted Transferee")), shall have
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the right to have one (1) representative (the "Fleming Observer") attend and
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participate in meetings of the Company's Board of Directors, or any committee
thereof, and the Company shall permit the Fleming Observer to attend and
participate in all such meetings as an observer. The Fleming Observer shall not
have the right to vote on any matter presented to the Board or any committee
thereof. The Company shall give the Fleming Observer written notice of each
meeting of the Board of Directors or any committee thereof and all written
materials and other information given to the Company's directors and committee
members in the same manner and at the same time such notices, materials and
other information are given to the directors and committee members. The Company
shall reimburse the Fleming Observer for travel and other expenses in connection
with such meetings to the same extent that the Company reimburses its directors
and committee members. If the Board of Directors or any committee thereof
proposes to take any action by written consent in lieu of a meeting, the Company
shall give written notice thereof to the Fleming Observer prior to the effective
date of such consent describing the nature and substance of such action.
(b) The Fleming Holders or the Permitted Transferee, as the case may be,
shall not exercise their rights with respect to the Fleming Observer provided in
Section 3(a) during such time that the holders of the Series A Preferred Stock
have elected a director to the Company's Board of Directors (or have waived
their right to so elect a director) pursuant to Section 4 of the Company's
Certificate of Designations with respect to the Series A Preferred Stock (the
"Investor Director").
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(c) So long as any shares of Series A Preferred Stock are outstanding, each
of Walston, Donlon, Schutz and Bailey acknowledges that the parties to this
Agreement desire that the Investor Director be appointed to the Compensation and
Audit Committees of the Company's Board of Directors and at each time the
Company's Board of Directors appoints committee members, agrees to use its best
efforts and take any other action necessary or appropriate to ensure such
appointment; provided, however, that the agreements of this paragraph (c) shall
terminate upon the Fleming Holders' or the Permitted Transferee's delivery of a
written notice to each of Walston, Donlon, Schutz and Bailey to the effect that
the Investor Director need not be appointed to the aforesaid committees.
4. Definitions.
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As used herein, the following terms shall have the respective meanings set
forth below:
"Acceptance Notice" shall have the meaning set forth in Section 1(a) hereof.
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"Affiliate" shall have the meaning given it in in Section 3 of the Stock
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Purchase Agreements.
"Bailey" shall have the meaning set forth in the first paragraph hereof.
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"Board" or "Board of Directors" shall have the meaning given it in Section 3
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of the Stock Purchase Agreements.
"Buyer" shall have the meaning set forth in Section 1(a) hereof.
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"Capital Stock" means the Common Stock (including, without limitation, any
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Common Stock issuable upon conversion of the Series A Preferred Stock), Series A
Preferred Stock and any other class of equity security which the Company may
issue and any securities or other rights convertible, exchangeable or
exercisable for or into any Capital Stock.
"Certificate of Designations" shall have the meaning given it in Section 1(a)
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of the Stock Purchase Agreements.
"Common Stock" shall have the meaning set forth in the second WHEREAS clause
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hereof.
"Company" shall have the meaning set forth in the first paragraph hereof.
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"Donlon" shall have the meaning set forth in the first paragraph hereof.
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"Fleming Funds" shall have the meaning set forth in the first paragraph
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hereof.
"Fleming Holders" shall have the meaning given it in Section 3 of the Stock
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Purchase Agreements.
"Fleming Observer" shall have the meaning set forth in Section 3(a) hereof.
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"Fully Diluted Basis" means, with respect to the calculation of the number of
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shares of Capital Stock, as of each date of determination thereof, (i) all
shares of Capital Stock outstanding at the time of determination and (ii) all
shares of Capital Stock issuable upon the exchange, exercise or conversion of
any security or other right (other than any Capital Stock) then outstanding
which is exchangeable, exercisable or convertible into Capital Stock.
"Inclusion Notice" shall have the meaning set forth in Section 1(a) hereof.
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"Inclusion Offer" shall have the meaning set forth in Section 1(a) hereof.
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"Investor" shall have the meaning set forth in the first paragraph hereof.
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"Investor Director" shall have the meaning set forth in Section 3(b) hereof.
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"Investor Group" shall have the meaning set forth in the first paragraph
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hereof.
"Investor Shares" means all Series A Preferred Stock and Common Stock owned by
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the Investor Group.
"Permitted Transferee" shall have the meaning set forth in Section 3(a)
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hereof.
"Person" means an individual, corporation, partnership, firm, association,
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joint venture, trust, unincorporated organization, governmental body, agency,
political subdivision or other entity.
"Preemption Notice" shall have the meaning set forth in Section 2(b) hereof.
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"Pro Rata" means with respect to a stockholder, in proportion to the number of
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shares of Capital Stock on a Fully Diluted Basis owned by such stockholder.
"Schutz" shall have the meaning set forth in the first paragraph hereof.
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"Series A Preferred Stock" shall have the meaning set forth in the first
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WHEREAS clause hereof.
"Stock Purchase Agreements" shall have the meaning set forth in the first
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WHEREAS clause hereof.
"Transfer" means, with respect to any security, any direct or indirect sale,
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transfer, assignment, hypothecation, pledge or any other disposition of such
security or any interest therein.
"Transferee" shall have the meaning given it in Section 3 of the Stock
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Purchase Agreements.
"Transferor Shares" shall have the meaning set forth in Section 1(a) hereof.
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"Walston" shall have the meaning set forth in the first paragraph hereof.
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Walston Shares" shall have the meaning set forth in the second WHEREAS clause
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hereof.
Miscellaneous.
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(a) In the event of a breach by any party to this Agreement of its
obligations under this Agreement, any party injured by such breach, in addition
to being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The parties agree that the provisions of this Agreement shall be
specifically enforceable, it being agreed by the parties that the remedy at law,
including monetary
damages, for breach of any such provision will be inadequate compensation for
any loss and that any defense in any action for specific performance that a
remedy at law would be adequate is waived.
(b) Except as otherwise provided herein, no modification, amendment or
waiver of any provision of this Agreement will be effective against any party
hereto unless such modification, amendment or waiver is approved in writing by
all parties hereto. The failure of any party to enforce any of the provisions of
this Agreement will in no way be construed as a waiver of such provisions and
will not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
(c) All covenants and agreements in this Agreement by or on behalf of any
of the parties hereto will bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
(d) All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
or by facsimile transmission or sent by nationally recognized overnight courier
service to the parties at the following addresses or facsimile numbers:
(i) If to an Investor, to:
the address indicated on Schedule 1 to the Stock Purchase
Agreements.
with a copy to:
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Facsimile No.: (212) 309-6273
Attn: David W. Pollak, Esq.
(ii) If to the Company, to:
Four Media Company
2813 West Alameda Avenue
Burbank, CA 91505
Facsimile No.: 818-540-7143
Attn: Robert T. Walston
with a copy to:
Greenberg Glusker Fields Claman & Machtinger LLP
1900 Avenue of the Stars, Suite 2100
Los Angeles, CA 90067
Facsimile No.: (310) 553-0687
Attn: Jill A. Cossman, Esq.
(iii) If to Walston, to:
(iv) If to Donlon, to:
(v) If to Schutz, to:
(vi) If to Bailey, to:
All such notices, requests and other communications will (x) if delivered
personally to the address as provided in this Section 5(d), be deemed given upon
delivery, (y) if delivered by facsimile transmission to the facsimile number as
provided in this Section 5(d), be deemed given upon receipt and (z) if delivered
by nationally recognized overnight courier service in the manner described above
to the address as provided in this Section 5(d), be deemed given on the business
day following the day it was sent (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom a
copy of such notice is to be delivered pursuant to this Section 5(d)). Any
party from time to time may change its address, facsimile number or other
information for the purpose of notices to that party by giving notice specifying
such change to the other parties hereto.
(e) The headings used in this Agreement have been inserted for convenience
of reference only and do not define or limit the provisions hereof.
(f) If any provision of this Agreement is held to be illegal, invalid or
unenforceable, and if the rights or obligations of any party hereto under this
Agreement will not be materially and adversely affected thereby, (i) such
provision will be fully severable, (ii) this Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (iii) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom and (iv) in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible.
(g) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to a contract executed and
performed in such State without giving effect to the conflicts of laws
principles thereof.
(h) This Agreement may be executed in any number of counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Stockholders'
Agreement as of the date first written above.
FOUR MEDIA COMPANY
By: /s/ Robert T. Walston
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Name: Robert T. Walston
Title: CEO
/s/ Robert T. Walston
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Robert T. Walston
/s/ John H. Donlon
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John H. Donlon
/s/ Gavin W. Schutz
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Gavin W. Schutz
/s/ Robert Bailey
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Robert Bailey
FLEMING US DISCOVERY FUND III, L.P.
By: FLEMING US DISCOVERY PARTNERS, L.P.,
its general partner
By: FLEMING US DISCOVERY, LLC,
its general partner
By: /s/ Robert L. Burr
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Robert L. Burr, member
FLEMING US DISCOVERY OFFSHORE FUND III, L.P.
By: FLEMING US DISCOVERY PARTNERS, L.P.,
its general partner
By: FLEMING US DISCOVERY, LLC,
its general partner
By: /s/ Robert L. Burr
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Robert L. Burr, member