EXHIBIT 1.1
EXECUTION COPY
10,000,000 PIERS
SIX FLAGS, INC.
PREFERRED INCOME EQUITY REDEEMABLE SHARES ("PIERS")
UNDERWRITING AGREEMENT
January 17, 2001
Xxxxxx Brothers Inc.
Xxxxx & Company Incorporated
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx
& Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Six Flags, Inc., a Delaware corporation (the "Company"), proposes to
sell to the Underwriters named in Schedule 1 hereto (the "Underwriters"), and
the Underwriters propose, severally and not jointly, to purchase 10,000,000
PIERS (the "Firm Securities") consisting of depositary shares (the "PIERS"),
each representing one one-hundredth of a share of the Company's 7 1/4%
convertible preferred stock (the "Convertible Preferred Stock"). In addition,
the Company proposes to grant to the Underwriters an option to purchase up to an
additional 1,500,000 PIERS on the terms and for the purposes set forth in
Section 2 (the "Option Securities"). The Firm Securities and the Option
Securities, if purchased, are hereinafter collectively called the "Securities".
This is to confirm the agreement concerning the purchase of the Securities from
the Company by the Underwriters.
A prospectus supplement relating to the Securities is to be used in
connection with the offering (the "Offering") of the Securities.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND
CERTAIN OF THE SUBSIDIARIES. The Company, Six Flags Operations Inc. ("SFO")
and Six Flags Theme Parks Inc. ("SFTP") represent, warrant and agree, jointly
and severally, that:
(a) A registration statement on Form S-3 (file number 333-76595)
relating to certain securities to be issued from time to time by the
Company and a prospectus supplement pursuant to Rule 424 of the United
States Securities Act of 1933 (the "Securities Act") specifically relating
to the Securities, the Convertible Preferred Stock and the Company's
Common Stock (the "Common Stock") issuable upon conversion or tender for
purchase of the Convertible Preferred Stock or as dividends on the
Convertible Preferred Stock, have each (i) been prepared by the Company in
conformity in all material respects with the requirements of the
Securities Act (and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) in the case of the Registration Statement, become
effective under the Securities Act. Copies of such registration statement
and prospectus supplement and amendments thereto have been delivered by
the Company to you as the Underwriters. Upon your written request, but not
without your agreement, the Company will also file a Rule 462(b)
Registration Statement in accordance with Rule 462(b). As used in this
Agreement, "Registration Statement" means such registration statement, as
amended at the Effective Time, including any documents incorporated by
reference therein at such time and all information contained in the final
prospectus supplement relating to the Securities filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations in accordance with
Section 5(a) hereof and deemed to be a part of the registration statement
as of the Effective Time pursuant to paragraph (b) of Rule 430A of the
Rules and Regulations and, in the event any Rule 462(b) Registration
Statement becomes effective prior to the First Delivery Date, also means
such registration statement as so amended, unless the context otherwise
requires; "Basic Prospectus" means the related prospectus in the form
first used to confirm sales of the Securities; "Prospectus" means the
Basic Prospectus as supplemented by the prospectus supplement specifically
relating to the Securities in the form first used to confirm sales of the
Securities; "Preliminary Prospectus" means any preliminary form of
Prospectus previously filed with the Commission pursuant to Rule 424;
"Effective Time" means the date and the time as of which the Registration
Statement, the most recent post-effective amendment thereto, if any, or
any Rule 462(b) Registration Statement became or becomes effective;
"Effective Date" means the date of the Effective Time; and "Rule 462(b)
Registration Statement" means any registration statement and any
amendments thereto filed pursuant to Rule 462(b) of the Rules and
Regulations relating to the offering covered by the initial Registration
Statement (file number 333-76595). Reference made herein to any
Preliminary Prospectus or to the Prospectus shall be deemed to refer to
and include any documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the date of such
Preliminary Prospectus or the Prospectus, as the case may be. The
Commission has not issued any order preventing or suspending the use of
any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus, any
further amendments or supplements to the Registration Statement or the
Prospectus and any Rule 462(b) Registration Statement will, when they
become effective or are filed with the Commission, as the case may be,
conform in all material respects to the requirements of the Securities Act
and the Rules and Regulations and do not and will not, as of the
applicable Effective Time (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; PROVIDED that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company by any Underwriter specifically for inclusion
therein.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Securities Exchange Act of 1934 (the "Exchange
Act") and the rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(d) The Company and each of the Six Flags Subsidiaries (as defined
in Section 15) have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation; each of the Six Flags Partnerships (as
defined in Section 15) is validly existing as a limited partnership in
good standing under the laws of their respective jurisdictions of
formation; the Company and each of the Subsidiaries (as defined in Section
15) are duly qualified to do business and are in good standing as foreign
entities in each jurisdiction in which their respective ownership or lease
of property or the conduct of their respective businesses requires, as
applicable, such qualification, except where the failure to so qualify
would not have in the aggregate a material adverse effect on the
consolidated financial position, stockholders' equity (or partners'
equity, as applicable), results of operations, business or prospects of
the Company and the Subsidiaries taken as a whole (a "Material Adverse
Effect") and have all corporate, partnership or equivalent power and
authority, as the case may be, necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged; none
of the subsidiaries (as defined in Rule 405 of the Rules and Regulations)
of the Company (other than the Subsidiaries) is a "significant
subsidiary", as such term is defined in Rule 405 of the Rules and
Regulations; and the assets, liabilities and operations of such other
subsidiaries are immaterial to the assets, liabilities, operations and
prospects of the Company and the Subsidiaries taken as a whole.
(e) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the description
thereof contained in the Prospectus. All of the issued shares of capital
stock of each Six Flags Subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims except for liens, encumbrances, equities or claims
arising under the $1.2 billion credit facility (the "Six Flags Credit
Facility") entered into by SFTP in November 1999, the Co-Venture Parks
Agreements (as defined in Section 15) and the subordinated indemnity
agreement among the Company and certain of its affiliates, SFO and certain
of its affiliates and Time Warner Inc. and certain of its affiliates (the
"Subordinated Indemnity Agreement") dated as of April 1, 1998. 100% of the
partnership interest in the Six Flags Partnerships, except for the 99%
limited partnership interest in Six Flags Over Xxxxxxx XX, L.P. (the
"Georgia Co-Venture Partnership") indirectly held by investors in Six
Flags Fund, Ltd. (L.P.), of which approximately 75% of the units are held
by persons who are not affiliated with the Company, and the 99% limited
partnership interest in Texas Flags, Ltd. (the "Texas Co-Venture
Partnership") indirectly held by investors in Six Flags Fund II, Ltd.
(L.P.), of which approximately 66% of the units are held by persons who
are not affiliated with the Company, are held directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims
except for liens, encumbrances, equities or claims under the Six Flags
Credit Facility and the Co-Venture Parks Agreements (as defined in Section
15) and the Subordinated Indemnity Agreement.
(f) At the First Delivery Date, assuming due execution and delivery
of the depositary receipts relating to the Securities by the Depositary
pursuant to the Deposit Agreement, such depositary receipts will entitle
the holders thereof to the benefits provided therein and in the Deposit
Agreement, subject to applicable (1) bankruptcy, reorganization,
insolvency, fraudulent transfer, moratorium or other laws now or hereafter
in effect relating to creditors' rights generally and (2) general
principles of equity, including principles of commercial reasonableness,
good faith and fair dealings (regardless of whether at law or in equity).
At the First Delivery Date, the unissued shares of Convertible Preferred
Stock to be issued as contemplated by this Agreement and the Deposit
Agreement (as defined below) will be duly and validly authorized and, when
issued and delivered to the Depositary in connection with the issuance and
sale of the Securities to the Underwriters as contemplated by this
Agreement and the Deposit Agreement, against payment therefor will be duly
and validly issued, fully paid and non-assessable. The shares of Common
Stock issuable upon the conversion of the Convertible Preferred Stock,
have been duly and validly authorized and reserved for issuance upon such
conversion and will be validly issued, fully paid and non-assessable.
(g) This Agreement has been duly authorized, executed and delivered
by the Company, SFO and SFTP. At the First Delivery Date, the Deposit
Agreement relating to the Securities (the "Deposit Agreement") will be
duly authorized, executed and delivered by the Company and the Depositary
named therein (the "Depositary").
(h) The execution, delivery and performance of this Agreement and
the Deposit Agreement by the Company and each of the Subsidiaries that are
parties hereto, and the consummation of the transactions contemplated
hereby and thereby, will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which the Company or any of the Subsidiaries is bound or to
which any of the property or assets of the Company or any of the
Subsidiaries is subject, nor will such actions result in any violation of
the provisions of the charter or by-laws or other constitutive documents
of the Company or any of the Subsidiaries or, assuming that all consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state and foreign
securities laws in connection with the purchase and distribution of the
Securities by the Underwriters and the exchange of the Convertible
Preferred Stock for depositary receipts by the Depositary are obtained,
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries or any of their properties or assets except, in each case,
breaches, violations or defaults which, in the aggregate, are not
reasonably likely to have a Material Adverse Effect; and except for the
registration of the Securities, the Convertible Preferred Stock and the
Common Stock issuable upon conversion or tender for purchase of the
Convertible Preferred Stock or as dividends on the Convertible Preferred
Stock, and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable
state and foreign securities laws in connection with the purchase and
distribution of the Securities by the Underwriters and the exchange of the
Convertible Preferred Stock for depositary receipts by the Depositary, no
consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement or the Deposit
Agreement by the Company or any of the Subsidiaries that are parties
hereto and the consummation of the transactions contemplated hereby and
thereby.
(i) Except as disclosed in the Prospectus and as to those rights
which have been duly and validly waived, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Securities Act.
(j) The Company has not sold or issued any shares of capital stock
or options during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act, other than shares of Common
Stock or options for such Common Stock issued in connection with the
Company's acquisition of Enchanted Parks, Inc., pursuant to the Company's
employee benefit plans, qualified stock options plans or other employee
compensation plans or pursuant to outstanding options, rights or warrants,
which, in each case, are disclosed in the Prospectus.
(k) Neither the Company nor any of the Subsidiaries has sustained,
since the date of the latest audited financial statements included in the
Prospectus, any loss or interference with its business from fire,
explosion, flood, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, except losses or interferences which will not, in the
aggregate, have a Material Adverse Effect; and, since such date, there has
not been any change in the capital stock or long-term debt of the Company
or any of the Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity (or partners' equity, as applicable) or results of
operations of the Company and its Subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus.
(l) The historical financial statements (including the related notes
and supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly the
financial condition and results of operations of the entities purported to
be shown thereby at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles in
the United States applied on a consistent basis throughout the periods
involved. The pro forma financial statements included in the Prospectus
have been prepared on a basis consistent with such historical financial
statements, except for the pro forma adjustments specified therein, and
comply in all material respects with Regulation S-X under the Securities
Act, and the pro forma adjustments have been properly applied to
historical amounts in the compilation of such pro forma financial
statements.
(m) KPMG Peat Marwick LLP, who have certified certain consolidated
financial statements of the Company, whose reports appear in the
Prospectus or are incorporated by reference therein and who have delivered
the initial letter
referred to in Section 7(g) hereof, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(n) The Company and each of the Subsidiaries have good and
marketable title to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except for such liens arising under the Six Flags
Credit Facility or contemplated in Section 1(e) hereof, as are described
in the Prospectus or such as would not have a Material Adverse Effect; and
all real property and buildings held under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable
leases, with such exceptions as would not have a Material Adverse Effect.
(o) The Company and each of the Subsidiaries carry, or are covered
by insurance in such amounts and covering such risks (including the risk
of earthquakes) as the Company has reasonably concluded, based on its
experience, is adequate for the conduct of their respective businesses and
the value of their respective properties and as is customary for companies
engaged in similar businesses in similar industries.
(p) The Company and each of the Subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx
registrations, copyrights and licenses necessary for the conduct of their
respective businesses as presently conducted and have no reason to believe
that the conduct of their respective businesses will conflict with, and
have not received any notice of any claim of conflict with, any such
rights of others with such exceptions as would not have a Material Adverse
Effect.
(q) Except as otherwise disclosed in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of
the Subsidiaries is a party or of which any property or assets of the
Company or any of the Subsidiaries is the subject which, if determined
adversely to the Company or any of the Subsidiaries, might reasonably be
expected to have a Material Adverse Effect or are otherwise required to be
disclosed in the Prospectus; and to the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(r) The conditions for use of Form S-3 for the Registration
Statement, as set forth in the General Instructions thereto, have been
satisfied.
(s) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described
in the Prospectus or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations.
(t) No relationship, direct or indirect, exists between or among the
Company or any Subsidiary on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any Subsidiary on
the other hand, which is required to be described or incorporated by
reference in the Prospectus which is not so described or incorporated by
reference.
(u) No labor disturbance by the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent which
might be reasonably expected to have a Material Adverse Effect.
(v) The Company is in compliance in all material respects with all
presently and then applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any material liability; the
Company has not incurred and the Company does not expect to incur material
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension plan"
for which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act,
which might reasonably be expected to cause the loss of such
qualification.
(w) The Company and each of the Subsidiaries are in compliance in
all respects with (i) all presently applicable provisions of the
Occupational Safety and Health Act of 1970, as amended, including all
applicable regulations thereunder and (ii) all presently applicable state
and local laws and regulations relating to the safety of its theme park
and water park operations, with such exceptions as would not have a
Material Adverse Effect.
(x) The Company has filed all federal and all material state and
local income and franchise tax returns required to be filed through the
date hereof, other than those filings being contested in good faith. The
Company has paid all taxes of which it has notice are due thereon, other
than those being contested in good faith and for which adequate reserves
have been provided to the extent required or those currently payable
without penalty or interest; and no tax deficiency has been determined
adversely to the Company or any of the Subsidiaries which has had, nor
does the Company have any knowledge of any
tax deficiency which, if determined adversely to the Company or any of the
Subsidiaries, might be reasonably expected to have, a Material Adverse
Effect.
(y) Since the date as of which information is given in the
Prospectus through the date hereof, and except for dividends paid on the
Company's 7 1/2% Mandatorily Convertible Preferred Stock (the "Mandatorily
Convertible Preferred Stock") and as may otherwise be disclosed in the
Prospectus, the Company has not (i) issued or granted any securities or
(ii) declared or paid any dividend on its capital stock, and neither the
Company nor any of its Subsidiaries has (i) incurred any material
liability or obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business or (ii)
entered into any material transaction not in the ordinary course of
business.
(z) The Company and each of its Subsidiaries (i) make and keep
accurate books and records and (ii) maintain internal accounting controls
sufficient to provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B) transactions
are recorded as necessary to permit preparation of their financial
statements in conformity with generally accepted accounting principles in
the United States and to maintain accountability for their assets, (C)
access to their assets is permitted only in accordance with management's
authorization and (D) the recorded accountability for their assets is
compared with existing assets at reasonable intervals.
(aa) Neither the Company nor any of the Subsidiaries (i) is in
violation of its charter or by-laws (or its partnership agreement, as
applicable), (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject
or (iii) is in violation in any respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its property
or assets may be subject or has failed to obtain any license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its
business, except, in the case of clauses (ii) and (iii), for defaults,
events of default, violations and failures which do not, individually or
in the aggregate, have or would have a Material Adverse Effect.
(ab) Neither the Company nor any of the Subsidiaries nor, to its
knowledge, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of the
Subsidiaries, has used any corporate or partnership funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(ac) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or any of
the Subsidiaries (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or the Subsidiaries in violation
of any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which would not have,
or could not be reasonably likely to have, singularly or in the aggregate
with all such violations and remedial actions, a Material Adverse Effect;
there has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical wastes,
solid wastes, hazardous wastes or hazardous substances due to or caused by
the Company or any of the Subsidiaries or with respect to which the
Company or any of the Subsidiaries have knowledge, except for any such
spill, discharge, leak, emission, injection, escape, dumping or release
which would not have or would not be reasonably likely to have, singularly
or in the aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a Material Adverse Effect; and
the terms "hazardous wastes", "toxic wastes", "hazardous substances" and
"medical wastes" shall have the meanings specified in any applicable
local, state, federal and foreign laws or regulations with respect to
environmental protection.
(ad) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act
of 1940 and the rules and regulations of the Commission thereunder.
(ae) At the First Delivery Date, (i) no default or event which, with
notice or lapse of time or both, would constitute such a default shall
have occurred and be continuing, or shall result from the transactions
contemplated hereby to occur prior to, concurrently with or immediately
following the consummation of the Offering, under (A) the indentures
relating to any of the Company's 10% Senior Discount Notes due 2008, the
Company's 9 3/4% Senior Notes due 2007, SFO's 9 3/4% Senior Notes due
2007, the Company's 9 1/4% Senior Notes due 2006 and SFO's 8 7/8% Senior
Notes due 2006, (B) the Six Flags Credit Facility or (C) the Deposit
Agreement.
(af) The statements set forth in the Prospectus under the captions
"Business-Recent and Proposed Acquisitions", "Business-Licenses",
"Description of Indebtedness", "Description of PIERS" and "Description of
Depositary
Arrangements", insofar as they describe the terms of the agreements and
securities referred to therein, are accurate and fairly present the
information required to be shown.
2. PURCHASE OF THE SECURITIES BY THE UNDERWRITERS. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 10,000,000 shares of
the Firm Securities to the several Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Securities set opposite that Underwriter's name in Schedule 1 hereto.
In addition, the Company grants to the Underwriters an option to
purchase up to 1,500,000 shares of Option Securities. Such option is granted
solely for the purpose of covering over-allotments in the sale of Firm
Securities and is exercisable as provided in Section 4 hereof. Shares of Option
Securities shall be purchased severally and not jointly for the account of the
Underwriters in proportion to the number of Firm Securities set opposite the
name of such Underwriters in Schedule 1 hereto.
The price of both the Firm Securities and any Option Securities
shall be $24.21875 per share.
The Company shall not be obligated to deliver any of the Securities
to be delivered on the First Delivery Date or the Second Delivery Date (as
hereinafter defined), as the case may be, except upon payment for all the
Securities to be purchased on such Delivery Date as provided herein.
3. OFFERING OF SECURITIES BY THE UNDERWRITERS. The several
Underwriters propose to offer the Firm Securities for sale upon the terms and
conditions set forth in the Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE SECURITIES. Delivery of and
payment for the Firm Securities shall be made at the office of Weil, Gotshal
& Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New York
City time, on the fourth full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between the Underwriters and the Company. This date and time are sometimes
referred to as the "First Delivery Date." On the First Delivery Date, the
Company shall deliver or cause to be delivered certificates representing the
Firm Securities to the Underwriters for the account of each Underwriter
against payment to or upon the order of the Company of the purchase price by
wire transfer in immediately available funds. Time shall be of the essence
(except that the Company will not be responsible for any delay resulting from
any action or inaction of any Underwriter) and delivery at the time and place
specified pursuant to this Agreement is a further condition of the
obligations of each Underwriter hereunder. Upon delivery, the Firm Securities
shall be registered in such names and in such denominations as the
Underwriters shall request in writing not less than two full business days
prior to the First Delivery Date.
For the purpose of expediting the checking and packaging of the certificates for
the Firm Securities, the Company shall make the certificates representing the
Firm Securities available for inspection by the Underwriters in New York, New
York, not later than 2:00 P.M., New York City time, on the business day prior to
the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 2 may be exercised by written notice
being given to the Company by the Underwriters. Such notice shall set forth the
aggregate number of shares of Option Securities as to which the option is being
exercised, the names in which the shares of Option Securities are to be
registered, the denominations in which the shares of Option Securities are to be
issued and the date and time, as determined by the Underwriters, when the shares
of Option Securities are to be delivered; PROVIDED, HOWEVER, that this date and
time shall not be earlier than the First Delivery Date nor earlier than the
second business day after the date on which the option shall have been exercised
nor later than the fifth business day after the date on which the option shall
have been exercised. The date and time the shares of Option Securities are
delivered are sometimes referred to as the "Second Delivery Date" and the First
Delivery Date and the Second Delivery Date are sometimes each referred to as a
"Delivery Date".
Delivery of and payment for the Option Securities shall be made at
the place specified in the first sentence of the first paragraph of this Section
4 (or at such other place as shall be determined by agreement between the
Underwriters and the Company) at 10:00 A.M., New York City time, on the Second
Delivery Date. On the Second Delivery Date, the Company shall deliver or cause
to be delivered the certificates representing the Option Securities to the
Underwriters for the account of each Underwriter against payment to or upon the
order of the Company of the purchase price by wire transfer in immediately
available funds. Time shall be of the essence (except that the Company will not
be responsible for any delay resulting from any action or inaction of any
Underwriter), and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each Underwriter
hereunder. Upon delivery, the Option Securities shall be registered in such
names and in such denominations as the Underwriters shall request in the
aforesaid written notice. For the purpose of expediting the checking and
packaging of the certificates for the Option Securities, the Company shall make
the certificates representing the Option Securities available for inspection by
the Underwriters in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the Second Delivery Date.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Underwriters
and to file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under
the Securities Act; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus
and to file no Rule 462(b) Registration Statement except as permitted
herein; to advise the Underwriters, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Underwriters with
copies thereof; upon your request, to cause the Rule 462(b) Registration
Statement, properly completed, to be filed with the Commission pursuant to
Rule 462(b) and to provide evidence satisfactory to the Underwriters of
such filing; to advise the Underwriters, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement
or the Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its reasonable best efforts to obtain its
withdrawal;
(b) To furnish reasonably promptly to each of the Underwriters and
to counsel for the Underwriters a conformed copy of the Registration
Statement as originally filed with the Commission, each amendment thereto
and any Rule 462(b) Registration Statement filed with the Commission,
including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission, each amendment thereto (in each case excluding exhibits
other than this Agreement and the computation of per share earnings) and
any Rule 462(b) Registration Statement, (ii) each Preliminary Prospectus,
the Prospectus and any amended or supplemented Prospectus and (iii) any
document incorporated by reference in the Prospectus (excluding exhibits
thereto); and, if the delivery of a Prospectus is required at any time
after the Effective Time in connection with the offering or sale of the
Securities or any other securities relating thereto and if at such time
any events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or
the Exchange Act, to notify the Underwriters and, upon their request, to
file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or
effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Underwriters,
be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus, any Prospectus pursuant to
Rule 424 of the Rules and Regulations or any Rule 462(b) Registration
Statement, to furnish a copy thereof to the Underwriters and counsel for
the Underwriters and obtain the consent of the Underwriters to the filing;
(f) As soon as practicable after the Effective Date (it being
understood that the Company shall have until at least 410 days after the
end of the Company's current fiscal quarter), to make generally available
to the Company's security holders and to deliver to the Underwriters an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act and the Rules
and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Underwriters copies of all materials furnished by the
Company to its public shareholders and all public reports and all reports
and financial statements furnished by the Company to the principal
national securities exchange upon which the PIERS may be listed pursuant
to requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Securities for offering
and sale (or obtain an exemption from registration) under the securities
laws of such jurisdictions as the Underwriters may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Securities; provided, however, that the Company
shall not be required to qualify as a foreign corporation or a dealer in
securities or to execute a general consent to service of process in any
jurisdiction in any action other than one arising out of the offering or
sale of the Securities;
(i) For a period of 90 days from the date of the Prospectus, not to,
directly or indirectly, (i) offer for sale, sell, pledge or otherwise
dispose of (or enter into
any transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of) any
shares of Common Stock or any securities convertible into or exchangeable
for or any rights to acquire, Common Stock or any other capital stock
(other than the Securities, the Common Stock issuable upon conversion or
tender for purchase of the Convertible Preferred Stock or as dividends on
the Convertible Preferred Stock or the Mandatorily Convertible Preferred
Stock, the Convertible Preferred Stock, shares issued pursuant to employee
benefit plans, qualified stock option plans or other employee compensation
plans existing on the date hereof or pursuant to currently outstanding
options, warrants or rights or upon the conversion of the Convertible
Preferred Stock or the Mandatorily Convertible Preferred Stock, and other
than shares issued by the Company as consideration to any seller of assets
or stock that the Company or any of the Subsidiaries is acquiring,
provided that any shares so issued to such seller or sellers, in the
aggregate, do not exceed one-fifth of the total equity of the Company
outstanding at the time of the first such issuance, and further provided
that such seller or sellers contemporaneously with any such issuance or
issuances enter into an agreement with the Underwriters in substantially
the same form as the agreement described in this paragraph (i) for the
remainder of the 90 day period) or sell or grant options, rights or
warrants with respect to any shares of Common Stock or securities
convertible into or exchangeable for Common Stock (other than the grant of
options pursuant to option plans existing on the date hereof or as
otherwise disclosed in the Prospectus) or (ii) enter into any swap or
other derivatives transaction that transfers to another, in whole or in
part, any of the economic benefits or risks of ownership of such shares of
Common Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or other securities, in
cash or otherwise, in each case without the prior written consent of
Xxxxxx Brothers Inc.; AND to cause (i) each executive officer and director
of the Company and (ii) Windcrest Partners; to furnish to the
Underwriters, prior to the First Delivery Date, a letter or letters, in
form and substance satisfactory to counsel for the Underwriters, pursuant
to which each such person shall agree, subject to any specified
exceptions, not to, directly or indirectly, (i) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any shares of Common Stock or
any securities convertible into or exchangeable for or any rights to
acquire, Common Stock or any other capital stock or (ii) enter into any
swap or other derivatives transaction that transfers to another, in whole
or in part, any of the economic benefits or risks of ownership of such
shares of Common Stock, whether any such transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, in each case for a period of 90 days
from the date of the Prospectus, without the prior written consent of
Xxxxxx Brothers Inc.;
(j) To take such steps as shall be necessary to ensure that neither
the Company nor any subsidiary shall become an "investment company" within
the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder;
(k) To cause an authorized officer to execute this Agreement on
behalf of the Subsidiaries that are parties hereto; and
(l) To use its reasonable best efforts to list for quotation the
PIERS and the Common Stock issuable upon conversion or tender for purchase
of the Convertible Preferred Stock or as dividends on the Convertible
Preferred Stock, on the New York Stock Exchange, Inc. (the "NYSE").
6. EXPENSES. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Securities and any taxes
payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement
and any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each case, exhibits),
any Preliminary Prospectus, the Prospectus and any amendment or supplement
to the Prospectus or any document incorporated by reference therein, all
as provided in this Agreement; (d) the costs of producing and distributing
this Agreement, the Deposit Agreement and any other related documents in
connection with the offering, purchase, sale and delivery of the
Securities; (e) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. (the "NASD") of
the terms of sale of the Securities; (f) listing or other fees incident to
the inclusion of the PIERS and the Common Stock issuable upon conversion
or tender for purchase of the Convertible Preferred Stock or as dividends
on the Convertible Preferred Stock, for listing on the NYSE; (g) the fees
and expenses, if applicable, of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 5(h)
and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriters); (h)
if one is required pursuant to the rules of the NASD, all fees and
expenses of a qualified independent underwriter; (i) all other costs and
expenses incident to the performance of the obligations of the Company or
any of the Subsidiaries under this Agreement; and (j) all fees and
expenses of the Depositary; PROVIDED that, except as provided in this
Section 6 and in Section 11, the Underwriters shall pay their own costs
and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Securities which they may sell and the expenses of
advertising any offering of the Securities made by the Underwriters.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
and the Subsidiaries that are parties hereto contained herein, to the
performance by the Company and each of the Subsidiaries that is a party hereto
of its obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 5(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated
or threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of Cravath, Swaine &
Xxxxx, counsel for the Underwriters, is material or omits to state a fact
which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Securities,
the Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall
be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(d) Xxxxx X. Xxxxxxxx shall have furnished to the Underwriters his
written opinion, as counsel to the Company, addressed to the Underwriters
and dated such Delivery Date, in form reasonably satisfactory to the
Underwriters, to the effect that:
(i) The Company and each of the Subsidiaries that is a party
hereto have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation; each of the Six Flags Subsidiaries
(other than the Subsidiaries that are parties hereto) have been duly
organized and, to such counsel's knowledge
and without independent verification, are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation; each of the Six Flags Partnerships
have been duly organized and, to such counsel's knowledge and
without independent verification, is validly existing as a limited
partnership in good standing under the laws of its jurisdiction of
formation; and the Company, the Subsidiaries that are a party hereto
and, to such counsel's knowledge and without independent
verification, the Subsidiaries (other than the Subsidiaries that are
parties hereto) are each duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction in which
their respective ownership or lease of property or the conduct of
their respective businesses requires such qualification and have all
corporate, partnership or equivalent power and authority necessary
to own or hold their respective properties and conduct the
businesses in which they are engaged as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company now outstanding (including the shares of the Convertible
Preferred Stock) have been duly and validly authorized and issued,
are fully paid and non-assessable and conform in all material
respects to the description thereof contained in the Prospectus; the
shares of Convertible Preferred Stock to be issued on such Delivery
Date as contemplated by this Agreement and the Deposit Agreement
have been duly authorized and, when issued and delivered to the
Depositary in connection with the issuance and sale of the
Securities to the Underwriters as contemplated by this Agreement and
the Deposit Agreement, dated as of January 23, 2001, among the
Company, The Depositary and all Owners and Holders from time to time
of Depositary Receipts issued thereunder (the "Deposit Agreement"),
against payment therefor will be validly issued, fully paid and
non-assessable under the laws of the State of Delaware (the
jurisdiction in which the Company is incorporated), and the shares
of Convertible Preferred Stock will entitle the holders thereof to
the benefits in the certificate of designation therefor; the shares
of Common Stock issuable upon the conversion of the Convertible
Preferred Stock have been duly and validly authorized and reserved
for issuance upon such conversion, and, when issued in accordance
with such certificate of designation, will be validly issued, fully
paid and nonassessable; such Common Stock conforms in all material
respects to the description thereof contained in the Prospectus; to
such counsel's knowledge, all of the issued shares of capital stock
of each Six Flags Subsidiary have been duly and validly authorized
and issued and are fully paid, non-assessable and are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, except for liens, encumbrances,
equities or claims arising under the Six Flags Credit Facility, the
Co-Venture Parks Agreements and the Subordinated Indemnity
Agreement; and 100% of the partnership interest in each of the
Premier Partnerships and each of the Six Flags Partnerships is held
directly or indirectly by the Company, except for the 40% general
partnership interest in Fiesta Partnership held by Fiesta Texas
Theme Park, Ltd., the 99% limited partnership interest in the
Georgia Co-Venture Partnership indirectly held by investors in Six
Flags Fund, Ltd. (L.P.), of which approximately 75% of the units are
held by persons who are not affiliated with the Company, and the 99%
limited partnership interest in the Texas Co-Venture Partnership
indirectly held by investors in Six Flags Funds II, Ltd. (L.P.), of
which approximately 66% of the units are held by persons who are not
affiliated with the Company, free and clear of all liens,
encumbrances, equities or claims, except for liens, encumbrances,
equities or claims arising under the Six Flags Credit Facility and
the Co-Venture Parks Agreements and the Subordinated Indemnity
Agreement;
(iii) There are no preemptive or other rights to subscribe for
or to purchase any shares of the Securities or the Convertible
Preferred Stock pursuant to the Company's charter or by-laws or any
agreement or other instrument known to such counsel;
(iv) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or
any of the Subsidiaries is a party or of which any property or
assets of the Company or any of the Subsidiaries is the subject
which, if determined adversely to the Company or any of the
Subsidiaries, would have a Material Adverse Effect; and, to such
counsel's knowledge, no such proceedings are contemplated by
governmental authorities or by others;
(v) Based solely upon oral confirmation from the staff of the
Commission, the Registration Statement was declared effective under
the Securities Act as of the date and time specified in such
opinion;
(vi) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior
to such Delivery Date (except for the financial statements and notes
thereto and other financial, statistical and accounting data
included therein (or incorporated by reference) as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and the Rules
and Regulations; and the documents incorporated by reference in the
Prospectus (except for the financial statements and notes thereto
and other financial, statistical and accounting data included
therein (or incorporated by reference) as to which such counsel need
express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder;
(vii) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to
the Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described or filed as exhibits to
the Registration Statement or incorporated therein by reference as
permitted by the Rules and Regulations;
(viii) The execution, delivery and performance of this
Agreement by the Company, Six Flags Operations Inc. and Six Flags
Theme Parks Inc. has been duly authorized by all necessary
corporate action on the part of the Company, Six Flags Theme
Parks Inc. and Six Flags Operations Inc.; this Agreement has been
duly executed and delivered by the Company, Six Flags Operations
Inc. and Six Flags Theme Parks Inc.;
(ix) The Deposit Agreement relating to the Securities has
been duly authorized, executed and delivered by the Company, and,
assuming due authorization, execution and delivery thereof by
the Depositary named therein, constitutes a valid and binding
instrument enforceable against the Company in accordance with its
terms (subject to applicable bankruptcy, reorganization, insolvency,
fraudulent transfer, moratorium, and similar laws affecting
creditors' rights and remedies generally and general principles of
equity, including principles of commercial reasonableness, good
faith and fair dealings (regardless of whether at law or in equity)
and except to the extent that rights to contribution and
indemnification thereunder may be limited by Federal or state
securities law or public policy relating thereto); assuming payment
of the purchase price by the Underwriters, each of the Securities
represents a one one-hundredth interest in a validly issued,
outstanding, fully paid and nonassessable share of Convertible
Preferred Stock; and the Securities, when issued under the Deposit
Agreement, assuming due authorization, execution and delivery of the
Deposit Agreement by the Depositary, in accordance with the
provisions of the Deposit Agreement, will be validly issued, and,
assuming due execution and delivery of the Depositary Receipts
representing the Securities by the Depositary pursuant to the
Deposit Agreement, such Depositary Receipts will entitle the holders
thereof to the benefits provided therein and in the Deposit
Agreement;
(x) The issue and sale of the shares of the Securities, the
issue of the shares of Convertible Preferred Stock and the exchange
of the shares of Convertible Preferred Stock for the Securities, in
each case on such Delivery Date by the Company, the issuance of
Common Stock upon the conversion of or as dividends on the
Convertible Preferred Stock and the performance by the Company of
its obligations under this Agreement and the Deposit Agreement will
not conflict with or constitute a default under any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which the
Company or any of the Subsidiaries is a party or by which the
Company or any of the Subsidiaries is bound or to which any of the
property or assets of the Company or any of the Subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the charter or by-laws or other constitutive documents
of the Company or any of the Subsidiaries or, assuming that all
consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable state or
foreign securities laws in connection with the purchase and
distribution of the Securities by the Underwriters, the exchange of
the Convertible Preferred Stock for depositary receipts by the
Depositary and the issuance of Common Stock upon the conversion of
or as dividends on the Convertible Preferred Stock are obtained, any
Federal or New York State statute, the General Corporation Law of
the State of Delaware, or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any of
their properties or assets; and, except for the registration of the
Securities and the Convertible Preferred Stock and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state or foreign
securities laws in connection with the purchase and distribution of
the Securities by the Underwriters and the exchange of the
Convertible Preferred Stock for depositary receipts by the
Depositary, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency
or body is required for the execution, delivery and performance of
this Agreement or the Deposit Agreement by the Company or any of the
Subsidiaries that is a party hereto and the consummation of the
transactions contemplated hereby and thereby;
(xi) No holder of securities of the Company has rights which
have not been duly and validly waived to require the Company to
include such securities with the Securities or the Convertible
Preferred Stock registered pursuant to the Registration Statement;
and
(xii) The statements in the Prospectus under the captions
"Business-Recent and Proposed Acquisitions", "Business-Licenses",
"Description of Indebtedness", "Description of PIERS", "Description
of Depositary Arrangements" and "Description of Common Stock", in
each case insofar as such statements constitute summaries of the
terms of the agreements and securities referred to therein, fairly
present the information called for with respect to such agreements
and securities and fairly summarize the matters referred to therein
in all material respects.
In rendering such opinion, such counsel may state that his opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law
of the State
of Delaware and that such counsel is not admitted in any state other than
New York; and, in respect of matters of fact, may rely upon certificates
of officers of the Company or the Subsidiaries, PROVIDED that such counsel
shall state that it believes that both the Underwriters and it are
justified in relying upon such certificates.
(e) Weil, Gotshal & Xxxxxx LLP shall have furnished to the
Underwriters its written opinion, as counsel to the Company, addressed to
the Underwriters and dated such Delivery Date, in form reasonably
satisfactory to the Underwriters, to the effect that:
(i) The shares of Convertible Preferred Stock to be issued on
such Delivery Date as contemplated by this Agreement and the Deposit
Agreement have been duly authorized and, when issued and delivered
to the Depositary in connection with the issuance and sale of the
Securities to the Underwriters as contemplated by this Agreement and
the Deposit Agreement, dated as of January 23, 2001, among the
Company, The Depositary and all Owners and Holders from time to time
of Depositary Receipts issued thereunder (the "Deposit Agreement"),
against payment therefor will be validly issued, fully paid and
non-assessable under the laws of the State of Delaware (the
jurisdiction in which the Company is incorporated), and the shares
of Convertible Preferred Stock will entitle the holders thereof to
the benefits in the certificate of designation therefor; the shares
of Common Stock issuable upon the conversion of the Convertible
Preferred Stock have been duly and validly authorized and reserved
for issuance upon such conversion, and, when issued in accordance
with such certificate of designation, will be validly issued, fully
paid and nonassessable; such Common Stock conforms in all material
respects to the description thereof contained in the Prospectus;
(ii) There are no preemptive or other rights to subscribe for
or to purchase any shares of the Securities or the Convertible
Preferred Stock pursuant to the Company's charter or by-laws;
(iii) The Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) of the Rules and Regulations
specified in such opinion on the date specified therein and such
counsel is not aware of the issuance of any stop order suspending
the effectiveness of the Registration Statement, and to the
knowledge of such counsel, no proceedings therefor have been
initiated or threatened by the Commission;
(iv) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior
to such Delivery Date (except for the financial statements and notes
thereto and other financial, statistical and accounting data
included therein (or
incorporated by reference) as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations;
(v) The execution, delivery and performance of the
Agreement by the Company, Six Flags Operations Inc. and Six Flags
Theme Parks Inc. has been duly authorized by all necessary
corporate action on the part of the Company, Six Flags Theme
Parks Inc. and Six Flags Operations Inc.; the Agreement has been
duly executed and delivered by the Company, Six Flags Operations
Inc. and Six Flags Theme Parks Inc.;
(vi) The Deposit Agreement relating to the Securities has been
duly authorized, executed and delivered by the Company, and,
assuming due authorization, execution and delivery thereof by the
Depositary named therein, constitutes a valid and binding instrument
enforceable against the Company in accordance with its terms
(subject to applicable bankruptcy, reorganization, insolvency,
fraudulent transfer, moratorium, and similar laws affecting
creditors' rights and remedies generally and general principles of
equity, including principles of commercial reasonableness, good
faith and fair dealings (regardless of whether at law or in equity)
and except to the extent that rights to contribution and
indemnification thereunder may be limited by Federal or state
securities law or public policy relating thereto); assuming payment
of the purchase price by the Underwriters, each of the Securities
represents a one one-hundredth interest in a validly issued,
outstanding, fully paid and nonassessable share of Convertible
Preferred Stock; and the Securities, when issued under the Deposit
Agreement, assuming due authorization, execution and delivery of the
Deposit Agreement by the Depositary, in accordance with the
provisions of the Deposit Agreement, will be validly issued, and,
assuming due execution and delivery of the Depositary Receipts
representing the Securities by the Depositary pursuant to the
Deposit Agreement, such Depositary Receipts will entitle the holders
thereof to the benefits provided therein and in the Deposit
Agreement;
(vii) The issue and sale of the shares of the Securities, the
issue of the shares of Convertible Preferred Stock and the exchange
of the shares of Convertible Preferred Stock for the Securities, in
each case on such Delivery Date by the Company, the issuance of
Common Stock upon the conversion of or as dividends on the
Convertible Preferred Stock and the performance by the Company of
its obligations under this Agreement and the Deposit Agreement will
not conflict with or constitute a default under (i) the indentures
(the "Indentures") relating to any of the Company's 10% Senior
Discount Notes due 2008, the Company's 9 3/4% Senior Notes due 2007,
SFO's 9 3/4% Senior Notes due 2007, the Company's 9 1/4% Senior
Notes due 2006 and SFO's 8 7/8% Senior Notes due 2006 or (ii) the
credit agreement relating to the Six Flags Credit Facility; and
(viii) The statements in the Prospectus under the captions
"Business-Recent and Proposed Acquisitions", "Business-Licenses",
"Description of Indebtedness", "Description of PIERS", "Description
of Depositary Arrangements" and "Description of Common Stock", in
each case insofar as such statements constitute summaries of the
terms of the agreements and securities referred to therein, fairly
present the information called for with respect to such agreements
and securities and fairly summarize the matters referred to therein
in all material respects.
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law
of the State of Delaware and that such counsel is not admitted in any
state other than New York; and, in respect of matters of fact, may rely
upon certificates of officers of the Company or the Subsidiaries, PROVIDED
that such counsel shall state that it believes that both the Underwriters
and it are justified in relying upon such certificates. Such counsel shall
also have furnished to the Underwriters a written statement, addressed to
the Underwriters and dated such Delivery Date, to the effect that such
counsel has participated in conferences with directors, officers and other
representatives of the Company and representatives of the independent
public accountants for the Company, at which conferences the contents of
the Registration Statement and the Prospectus and related matters were
discussed, and, although we have not independently verified and are not
passing upon and assume no responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement and
Prospectus (except to the extent specified in the foregoing opinion), no
facts have come to our attention which lead us to believe that the
Registration Statement, as of the Effective Date, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements contained therein
not misleading or that the Prospectus, on January 18, 2000 or on the date
hereof, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading (it being
understood that we express no view with respect to the Incorporated
Documents, or the financial statements and related notes, the financial
statement schedules and the other financial, statistical and accounting
data included or incorporated by reference in the Registration Statement
or Prospectus).
(f) The Underwriters shall have received from Cravath, Swaine &
Xxxxx, counsel for the Underwriters, such opinion or opinions and such
statement or statements, dated such Delivery Date, with respect to the
issuance and sale of the
Securities, the Registration Statement, the Prospectus and other related
matters as the Underwriters may reasonably require, and the Company and
the Subsidiaries shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such
matters.
(g) At the time of execution of this Agreement, the Underwriters
shall have received from KPMG Peat Marwick LLP a letter, in form and
substance satisfactory to the Underwriters, addressed to the Underwriters
and dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission and (ii)
stating, as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more
than five days prior to the date hereof), the conclusions and findings of
such firm with respect to the financial information and other matters
ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(h) With respect to the letter of KPMG Peat Marwick LLP referred to
in the preceding paragraph and delivered to the Underwriters concurrently
with the execution of this Agreement (the "initial letter"), the Company
shall have furnished to the Underwriters a letter from KPMG Peat Marwick
LLP (the "bring-down letter") addressed to the Underwriters and dated such
Delivery Date (i) confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating with respect
to matters involving changes or developments since the respective dates as
of which specified financial information is given in the Prospectus, as of
a date not more than five days prior to the date of the bring-down letter,
the conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set forth
in the initial letter.
(i) The Company shall have furnished to the Underwriters a
certificate, dated such Delivery Date, of its Chairman of the Board, its
President or a Vice President and its Chief Financial Officer stating
that:
(i) The representations, warranties and agreements of the
Company and each of the Subsidiaries that are parties hereto are
true and correct as of such Delivery Date; the Company and each of
the Subsidiaries that is a party hereto have complied in all
material respects with all their agreements contained herein; and
the conditions set forth in Sections 7(a) and 7(j) have been
fulfilled; and
(ii) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion (A) the Registration
Statement, as of the Effective Date, and the Prospectus, as of such
Delivery Date, did not include any untrue statement of a material
fact and did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and (B) since the Effective Date no event has occurred which should
have been set forth in a supplement or amendment to the Registration
Statement or the Prospectus.
(j) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus there shall not
have been any change in the capital stock (or partners' equity, as
applicable) or long-term debt of the Company or any of the Subsidiaries or
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity (or partners' equity, as applicable) or results of
operations of the Company and its Subsidiaries, taken as a whole,
otherwise, in each case, than as set forth or contemplated in the
Prospectus, the effect of which, in any such case, is, in the judgment of
the Underwriters, so material (to the Company and its Subsidiaries, taken
as a whole) and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities being
delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the Company's
debt securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) of the Rules and Regulations, (ii) the PIERS shall have
been rated "Caa" or higher by Xxxxx'x Investor Service and "B-" or higher
by Standard & Poor's Corporation and (iii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities.
(l) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the NYSE or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the Company on
any exchange or in the over-the-counter market, shall have been suspended
or minimum prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities, (iii) the United
States shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of a majority in interest of
the several Underwriters, impracticable or inadvisable to proceed with the
public offering or delivery of the Securities being delivered on such
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(m) The Six Flags Credit Facility shall be in effect and
available for borrowing.
(n) No default or event which, with notice or lapse of time or both,
would constitute such a default shall have occurred and be continuing, or
would result from the transactions contemplated hereby to occur prior to,
concurrently with or immediately following the consummation of the
Offering, under (i) the Indentures, (ii) the credit agreement relating to
the Six Flags Credit Facility or (iii) the Deposit Agreement (other than a
default by any party to the Deposit Agreement other than the Company or
any of the Subsidiaries).
(o) The Deposit Agreement shall have been entered into by the
parties thereto with the provisions described in the Prospectus.
(p) An authorized officer shall have executed this Agreement on
behalf of each of the Subsidiaries that are parties hereto.
(q) The PIERS shall have been approved for listing, subject to
official notice of issuance, on the NYSE. The Common Stock issuable upon
conversion or tender for purchase of the Convertible Preferred Stock or as
dividends on the Convertible Preferred Stock, shall have been duly listed
for quotation on the NYSE.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and scope reasonably satisfactory to
counsel for the Underwriters.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the
Subsidiaries that are parties hereto, jointly and severally, shall indemnify and
hold harmless each Underwriter (including any Underwriter in its role as
qualified independent underwriter pursuant to the rules of the NASD), its
officers and employees and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of the Securities), to which that Underwriter,
officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary Prospectus,
the Registration Statement or the Prospectus or in any amendment or supplement
thereto or (B) in any blue sky application or other document prepared or
executed by the Company (or based upon any written information furnished by the
Company) specifically for the purpose of qualifying any or all of the Securities
under the securities laws of any jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), (ii) the
omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Securities or the Offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (PROVIDED that the Company and the
Subsidiaries that are parties hereto shall not be liable under this clause (iii)
to the extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be taken
by such Underwriter through its gross negligence or willful misconduct), and
shall reimburse each Underwriter and each such officer, employee or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by that Underwriter, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; PROVIDED, HOWEVER,
that the Company and the Subsidiaries that are parties hereto shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any such
amendment or supplement, or in any Blue Sky Application, in reliance upon and in
conformity with written information concerning any Underwriter furnished to the
Company by any Underwriter specifically for inclusion therein; and PROVIDED
FURTHER that with respect to any such untrue statement or omission made in the
Preliminary Prospectus, the indemnity agreement contained in this Section 8(a)
shall not enure to the benefit of the Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased the Securities
concerned if, to the extent that such sale was an initial sale by such
Underwriter and any such loss, claim, damage or liability of such Underwriter is
a result of the fact that both (A) a copy of the Prospectus was not sent or
given to such person at or prior to the written confirmation of the sale of such
Securities to such person, and (B) the untrue statement or omission in the
Preliminary Prospectus was corrected in the Prospectus unless, in either case,
such failure to deliver the Prospectus was a result of noncompliance by the
Company with Section 5(c). The foregoing indemnity agreement is in addition to
any liability which the Company or any of the Subsidiaries that are parties
hereto may otherwise have to any Underwriter or to any officer, employee or
controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company and the Subsidiaries that are parties hereto, each of
their respective officers and employees, each of their respective directors, and
each person, if any, who controls the Company or any Subsidiary that is a party
hereto within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or any Subsidiary that is a party hereto or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information concerning
such Underwriter furnished to the Company by that Underwriter specifically for
inclusion therein, and shall reimburse the Company, any such Subsidiary and any
such director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company, any such Subsidiary or any such director,
officer or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred. The foregoing indemnity agreement is in addition to
any liability which any Underwriter may otherwise have to the Company, any such
Subsidiary, or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, PROVIDED FURTHER, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
the Underwriters shall have the
right, upon written notice to the Company, to employ counsel to represent
jointly the Underwriters and their respective officers, employees and
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Underwriters against the Company
and the Subsidiaries that are parties hereto under this Section 8 if, in the
reasonable judgment of the Underwriters, it is advisable for the Underwriters,
officers, employees and controlling persons to be jointly represented by
separate counsel, and in that event the reasonable fees and expenses of such
separate counsel shall be paid, jointly and severally, by the Company and the
Subsidiaries that are parties hereto. It is understood that the indemnifying
party or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(c) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Subsidiaries that are parties hereto on the one
hand and the Underwriters on the other from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Subsidiaries that are parties hereto on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company and the Subsidiaries that are parties hereto on the one
hand and the Underwriters on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Securities purchased under this Agreement (before deducting expenses)
received by the Company on the one hand,
and the total underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Securities purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the offering
of the shares of the Securities under this Agreement, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. For purposes of the preceding two
sentences, the net proceeds deemed to be received by the Company shall be deemed
to be also for the benefit of the Subsidiaries that are parties hereto and
information supplied by the Company shall also be deemed to have been supplied
by the Subsidiaries that are parties hereto. The Company, the Subsidiaries that
are parties hereto and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section shall
be deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public was offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 8(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company and the
Subsidiaries that are parties hereto acknowledge that the statements with
respect to the public offering of the Securities by the Underwriters set forth
in the first paragraph and the last sentence on the cover page of the prospectus
supplement specifically relating to the Securities, the Convertible Preferred
Stock and the Common Stock, and the statements under the caption "Underwriting"
in the prospectus supplement specifically relating to the Securities, the
Convertible Preferred Stock and the Common Stock, constitute the only
information concerning such Underwriters furnished in writing to the Company by
or on behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
9. DEFAULTING UNDERWRITERS. If, on either Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting
Underwriter shall be obligated to purchase the Securities which the defaulting
Underwriter agreed but failed to purchase on such Delivery Date; PROVIDED,
HOWEVER, that the remaining non-defaulting Underwriter shall not be obligated to
purchase any of the Securities on such Delivery Date if the total number of
shares of the Securities which the defaulting Underwriter agreed but failed to
purchase on such date exceeds 9.09% of the total number of shares of the
Securities to be purchased on such Delivery Date, and the remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the number of shares of the Securities which it agreed to purchase on such
Delivery Date pursuant to the terms of Section 2. If the foregoing maximums are
exceeded, the remaining non-defaulting Underwriter, or those other underwriters
satisfactory to the non-defaulting Underwriter who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Securities to be purchased on such Delivery
Date. If the remaining Underwriter or other underwriters satisfactory to the
remaining Underwriter do not elect to purchase the shares which the defaulting
Underwriter agreed but failed to purchase on such Delivery Date, this Agreement
(or, with respect to the Second Delivery Date, the obligation of the
Underwriters to purchase, and of the Company to sell, the Option Securities)
shall terminate without liability on the part of the non-defaulting Underwriter
or the Company, except that the Company will continue to be liable for the
payment of expenses to the extent set forth in Section 6. As used in this
Agreement, the term "Underwriter" includes, for all purposes of this Agreement
unless the context requires otherwise, any party not listed in Schedule 1 hereto
who, pursuant to this Section 9, purchases Securities which a defaulting
Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by its default. If
other underwriters are obligated or agree to purchase the Securities of a
defaulting or withdrawing Underwriter, either the non-defaulting Underwriter or
the Company may postpone the Delivery Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Company or
counsel for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
10. TERMINATION. The obligations of the Underwriters hereunder may
be terminated by the Underwriters by notice given to and received by the Company
prior to delivery of and payment for the Firm Securities if, prior to that time,
any of the events described in Section 7(j), 7(k) or 7(l) shall have occurred or
if the Underwriters shall decline to purchase the Securities for any reason
permitted under this Agreement.
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company shall
fail to tender the Securities for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, (other than by reason of any events described in Section 7(l)
except for the suspension of trading or minimum prices
of the securities of the Company), the Company will reimburse the Underwriters
for all reasonable out-of-pocket expenses (including fees and disbursements of
counsel) incurred by the Underwriters in connection with this Agreement and the
proposed purchase of the Securities, and promptly following demand the Company
shall pay the full amount thereof to the Underwriters. If this Agreement is
terminated pursuant to Section 9 by reason of the default of one or more
Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
12. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: 000-000-0000), with a copy, in the case of any notice
pursuant to Section 8(c), to the Director of Litigation, Office of the
General Counsel, Xxxxxx Brothers Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company or any of the Subsidiaries, shall be
delivered or sent by mail, telex or facsimile transmission to 000 Xxxx
00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx X.
Xxxxx (Fax: 000-000-0000);
PROVIDED, HOWEVER, that any notice to a Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex , which address
will be supplied to any other party hereto by the Underwriters upon request. Any
such statements, requests, notices or agreements shall take effect at the time
of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by Xxxxxx Brothers Inc. on behalf of the Underwriters.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, the
Subsidiaries that are parties hereto and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (A) the representations, warranties, indemnities and
agreements of the Company and the applicable Subsidiaries contained in this
Agreement shall also be deemed to be for the benefit of the officers and
employees of each Underwriter and the person or persons, if any, who control any
Underwriter within the meaning of Section 15 of the Securities Act and (B) the
indemnity agreement of the Underwriters contained in Section 8(b) of this
Agreement shall be deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company, the applicable Subsidiaries and the
Underwriters contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Securities and shall remain in full force and effect, regardless
of any investigation made by or on behalf of any of them or any person
controlling any of them.
15. DEFINITION OF THE TERMS "BUSINESS DAY","SIX FLAGS
SUBSIDIARY", "SIX FLAGS PARTNERSHIP" AND "SUBSIDIARY" AND "CO-VENTURE PARKS
AGREEMENTS". For purposes of this Agreement, (a) "business day" means any
day on which the NYSE is open for trading, (b) "Six Flags Subsidiary" means
each of SFO, SFTP, Enchanted Parks, Inc., Premier Operations, Walibi, GP
Holdings, Inc., a Delaware corporation, Funtime Parks, Inc., an Ohio
corporation, Funtime, Inc., an Ohio corporation, Wyandot Lake, Inc., an Ohio
corporation, Darien Lake Theme Park and Camping Resort, Inc., a New York
corporation, Tierco Maryland, Inc., a Delaware corporation, Tierco Water
Park, Inc., an Oklahoma corporation, Frontier City Properties, Inc., an
Oklahoma corporation, Stuart Amusement Company, a Massachusetts corporation,
Premier Waterworld Concord Inc., a California corporation, Premier Waterworld
Sacramento Inc., a California corporation, Premier Parks of Colorado Inc., a
Colorado corporation, Great Escape Holding Inc., a New York corporation,
Great Escape LLC, a New York limited liability company, Great Escape Theme
Park LLC, a New York limited liability company, Riverside Park Enterprises,
Inc., a Massachusetts corporation, Riverside Park Food Services, Inc., a
Massachusetts corporation, KKI, LLC, a Delaware limited liability company,
Park Management Corp., a California corporation, Indiana Parks, Inc., an
Indiana corporation, Aurora Campground, Inc., an Ohio corporation, Ohio
Campgrounds Inc., an Ohio corporation, Premier International Holdings, Inc.,
a Delaware corporation, PP Data Services Inc., a Texas corporation, Six Flags
Over Georgia, Inc., a Delaware corporation, Premier Parks Holdings Inc., a
Delaware corporation, SF Splashtown GP Inc., a Delaware corporation, SF
Splashtown Inc., a Delaware corporation, MWM Holdings Inc., a Delaware
corporation, Ohio Hotel LLC, a Delaware limited liability company, SFOT II
Holdings, LLC, a Delaware limited liability company, SFT Holdings, Inc., a
Delaware corporation, SFG Holdings, Inc., a Delaware corporation, Fiesta
Texas, Inc., a Delaware corporation, Walibi Holding LLC, a Delaware limited
liability company, Reino Aventura S.A. de C.V., a Mexican corporation, Ventas
y Servicios al Consumdior S.A. de C.V., a Mexican corporation, MWM Ancillary
Services s.l., a Spanish corporation, Movie World Holding GmbH, a German
corporation, Movie World GP GmbH, a German corporation, Immoflor S.P.R.L., a
Belgian corporation, Gespark S.P.R.L., a Belgian corporation, Historium S.A.,
a Belgian corporation, Cofilo S.A.R.L., a French corporation, Bellewaerde
N.V., a Belgian corporation, Parc Xxxxxxx S.A.R.L., a French corporation,
Flevo Attractiepark B.V., a Netherlands corporation, Andis B.V., a
Netherlands corporation, Avenir Land S.A.R.L., a French corporation, Parc
Agen S.A.R.L., a French corporation, SFTP, SFTP Inc., a Delaware corporation,
SFOG II, Inc., a Delaware corporation ("SFOG II"), SFOG II Employee, Inc., a
Delaware corporation ("SFOG II Employee"), Six Flags Over Texas, Inc., a
Delaware corporation ("Six Flags Over Texas"), SFOT Employee, Inc., a
Delaware corporation ("SFOT Employee Inc."),
SFTP San Antonio GP, Inc., a Delaware corporation, SFTP San Antonio, Inc., a
Delaware corporation, and, with respect to references to Six Flags Subsidiaries
which are a party to this Agreement, also includes Six Flags San Antonio, L.P.,
a Delaware limited partnership ("Six Flags San Antonio") and SF Partnership, a
Delaware limited partnership ("SF Partnership"), (c) "Six Flags Partnership"
means each of Frontier City Partners, Limited Partnership, an Oklahoma limited
partnership, Elitch Gardens, L.P., a Colorado limited partnership, Movie World
GmbH & Co. KG, a German limited partnership, Six Flags Splashtown L.P., a
Delaware limited partnership, Fiesta Partnership, the Georgia Co-Venture
Partnership, the Texas Co-Venture Partnership, Six Flags San Antonio and SF
Partnership, (d) "Subsidiary" means each of the Six Flags Subsidiaries and the
Six Flags Partnerships and "Co-Venture Parks Agreements" means (i) the Overall
Agreement, dated as of February 15, 1997, among Six Flags Fund, Ltd. (L.P.),
Xxxxxx Family Trust, SFG, Inc., SFG-I, LLC, SFG-II, LLC, Six Flags Over Georgia,
Ltd., SFOG II, Inc., SFOG II Employee, Inc., SFOG Acquisition A, Inc., SFOG
Acquisition B, L.L.C., Six Flags Over Georgia, Inc., Six Flags Services of
Georgia, Inc., SFTP and SFEC and the Related Agreements (as defined therein),
(ii) the Overall Agreement, dated as of November 24, 1997, among Six Flags Over
Texas Fund, Ltd., Flags' Directors, L.L.C., FD-II, L.L.C., Texas Flags, Ltd.,
SFOT Employee, Inc., SFOT Acquisition I, Inc., SFOT Acquisition II, Inc., Six
Flags Over Texas, Inc., SFTP and SFEC and the Related Agreements (as defined
therein), and (iii) the Lppease Agreement with Option to Purchase, dated as of
March 9, 1996, among Fiesta Texas Theme Park, Ltd., a Texas Limited Partnership,
San Antonio Theme Park, L.P., and Six Flags San Antonio, L.P. and the
Transaction Documents (as defined therein), in each case, as the same may be
modified or amended from time to time.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the
meaning or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement among the Company and
the Underwriters, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
Six Flags, Inc.
By_________________________________
Name: Xxxxxx X. Xxxxx
Title: Chairman of the Board and
Chief Executive Officer
Six Flags Operations Inc.
By_________________________________
Name: Xxxxxx X. Xxxxx
Title: Chairman of the Board and
Chief Executive Officer
Six Flags Theme Parks Inc.
By_________________________________
Name: Xxxxxx X. Xxxxx
Title: Chairman of the Board and
Chief Executive Officer
Accepted:
Xxxxxx Brothers Inc.
Xxxxx & Company Incorporated
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx
& Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
By Xxxxxx Brothers Inc.
By ____________________________
Authorized Representative
SCHEDULE 1
NUMBER
UNDERWRITERS OF FIRM SHARES
------------ ---------------
Xxxxxx Brothers Inc............................... 7,000,000
Xxxxx & Company Incorporated...................... 750,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated...................................... 750,000
Xxxxxx Xxxxxxx & Co. Incorporated................. 750,000
Xxxxxxx Xxxxx Barney Inc.......................... 750,000
----------
.............................................Total 10,000,000
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