AMENDMENT NO. 1 TO
STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 to STOCK PURCHASE AGREEMENT ("Amendment No. 1") is
made and entered into as of the 26th day of March, 1998, by and between
PREMIER PARKS INC., a Delaware corporation with offices at 122 E. 42nd
Street, 49th Floor, New York, New York 10168, USA (the "Buyer") and CENTRAG
S.A., a Belgian corporation with registered offices at Xxxxx xxx xxxxxxxxx 0,
0000 Xxxxx, XXXXXX X.X., a Belgian corporation with registered offices at
Xxxxxxxxxx 000, 0000 Xxxxxxxx, and WESTKOI N.V., a Belgian corporation with
registered offices at Xxxxxxxxxx 000, 0000 Xxxxxxxx (collectively, the
"Sellers", or, individually, a "Seller"), with reference to the following
facts:
A. On December 15, 1997 Buyer and the Sellers entered into that certain
Stock Purchase Agreement (the "Agreement").
B. Buyer has requested that certain provisions of the Agreement,
specifically as regards the number of shares of the Company to be purchased
by the Buyer under the Agreement, be amended as set forth herein.
C. The Buyer and the Sellers agree to amend the Agreement as set forth
herein.
D. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties agree as follows:
1. PURCHASE OF SHARES. Paragraph 1 of the Agreement shall be replaced
in its entirety with the following:
At the "Closing" (as defined in Paragraph 11.1), for the consideration
hereinafter provided and in reliance upon the representations and
warranties of the parties set forth herein, Sellers shall sell, assign
and transfer to Buyer, and Buyer shall purchase from Sellers, good,
marketable and unencumbered title in and to such number of shares of
capital stock of the Company set forth opposite such Seller's name on
Schedule I (the "Current Shares"); PROVIDED, HOWEVER, that the number
of shares sold to the Buyer shall be adjusted (and Sellers shall, on a
pro rata basis, sell to Buyer such number of additional or fewer shares
of Common Stock, as the case may be) as necessary such that at the
Closing Buyer shall receive such number of shares as is equal to 49.9%
of the Outstanding Shares (as adjusted the "Shares" and individually, a
"Share"). The Shares shall be transferred to Buyer free and clear of all
liens, claims and encumbrances.
The "Outstanding Shares" shall be all the capital shares of the Company
issued and outstanding as of the "Closing Date" (as defined in Paragraph
11.1).
2. SCHEDULES. Schedule 1, 2.1, 4.1.4, 4.3.1, 4.3.2, 4.5.1, 4.6, 4.7,
4.8, 4.10 and 4.14 to the Agreement shall be replaced in its entirety with
the Schedules attached hereto.
3. PURCHASE PRICE. The parties agree that the Share Price as determined
pursuant to Paragraph 2 of the Agreement shall equal BEF 2385. The Purchase
Price payable to each Seller pursuant to Paragraph 2.2 shall be as follows:
PREMIER COMMON NO. OF PREMIER
CASH VALUE STOCK VALUE SHARES
---------- ---------------- ---------------
Centrag BEF 1,041,216,588 BEF 260,304,147 184,145
Xxxxxx 140,287,608 35,071,902 24,811
Westkoi 87,634,440 21,908,610 15,499
------------- ----------- -------
1,269,138,636 317,284,659 224,455
4. ADDITIONAL CONSIDERATION. (a) The introductory subparagraph to
Paragraph 3 of the Agreement shall be replaced in its entirety with the
following:
As part of the consideration for the transfer of the Shares, following
the Closing each Seller shall have the right to receive (subject to
Paragraph 16.7 hereof and without prejudice to Paragraph 7.4) additional
shares of Premier Common Stock ("Contingent Shares"), based upon the
following formula:
(b) As used in the Agreement (i) the term "Contingent Value Rights"
shall be deemed to be replaced with the term "Contingent Shares" and (ii) the
phrase "holder of Contingent Value Rights" shall be deemed to be replaced
with the phrase "holder of the right to receive Contingent Shares".
5. REPRESENTATIONS. The second sentence of Paragraph 4.2.2 shall be
replaced in its entirety with the following:
The Shares will constitute, at the time of the Closing, 49.9% of the total
number of Outstanding Shares.
6. FEES. Paragraph 6.8 is replaced in its entirety with the following:
Sellers, jointly and severally, shall promptly pay and shall
indemnify and hold harmless the Company, each Subsidiary, and Buyer with
respect to any commission, finder's fee or similar payment claimed by any
Person with this Agreement or any matter related thereto, including the
advisory fees of
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Investco (the "Investco Fee"), which shall be paid by the Sellers and
excluded from Net Debt.
7. REGISTRATION. A new paragraph 7.5 shall be added as follows:
7.5 REGISTRATION. (a) Buyer agrees to the reasonable efforts to:
i) prepare and file with the Commission a registration statement
(the "Resale Registration Statement") on any appropriate form under the
Securities Act with respect to the shares of Premier Common Stock sold to the
Sellers at the Closing pursuant to the Agreement (the "Registrable Shares")
and use its reasonable efforts to cause such Resale Registration Statement to
become effective by June 23, 1998 (such date the "Target Date");
ii) prepare and file with the United States Securities and Exchange
Commission or any other federal agency at the time administering the
Securities Act (as defined herein) (the "Commission") such amendments,
post-effective amendments, and supplements to such Resale Registration
Statement and the prospectus used in connection therewith as may be necessary
to keep such Resale Registration Statement effective for a period of not less
than 90 days.
iii) furnish to each Seller such number of copies of such Resale
Registration Statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary
prospectus), any documents incorporated by reference therein, and such other
documents as such Seller may reasonably request in order to facilitate the
disposition of the Registrable Shares owned by such Seller (it being
understood that the Company consents to the use of the prospectus and any
amendment or supplement thereto by each Seller, in connection with the
offering and sale of the Registrable Shares covered by the prospectus or any
amendment or supplement thereto);
iv) use its reasonable efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as the Sellers reasonably requests; use its reasonable efforts
to keep each such registration or qualification (or exemption therefrom)
effective during the period which Registration Statement is required to be
kept effective; and to any and all other acts and things which may be
reasonably necessary to enable each Seller to consummate the disposition of
the Registrable Shares owned by such Seller in such jurisdictions (PROVIDED,
HOWEVER, that the Company will not be required to (A) qualify generally to do
business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph or (B) consent to general service of
process in any such jurisdiction);
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v) promptly notify each Seller and (if requested by any such
Seller) confirm such notice in writing (A) when a prospectus or any
prospectus supplement or post-effective amendment has been filed and, with
respect to the Resale Registration Statement or any post-effective amendment;
when the same has become effective, (B) of the issuance by any state
securities commission or other regulatory authority of any order suspending
the qualification or exemption from qualification of any of the Registrable
Shares under state securities or "blue sky" laws or the initiation of any
proceedings for that purpose, and (C) of the happening of any event which
makes any statement made in the Resale Registration Statement or related
prospectus untrue or which requires the making of any changes in such
registration statement, prospectus or documents so that they will not contain
any untrue statements, of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein nor
misleading, and except to the extent that a Suspension Notice (as defined in
Paragraph 7.5(b)) is than in effect, as promptly as practicable thereafter,
prepare and file with the Commission and furnish a supplement or amendment to
such prospectus so that, as thereafter deliverable to the purchasers of such
Registrable Shares, such prospectus will not contain any untrue statement of
a material fact or omit a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
vi) if requested by any Seller promptly incorporate in a prospectus
supplement or post-effective amendment such information as any Seller
reasonably requests to be included therein;
vii) as promptly as practicable after filing with the Commission of
any document which is incorporated by reference into the Resale Registration
Statement (in the form in which it was incorporated), deliver a copy of each
such document to each of the Sellers;
viii) cooperate with the Sellers to facilitate the timely preparation
and delivery of certificates (which shall not bear any restrictive legends
unless required under applicable law) representing securities sold under the
Resale Registration Statement, and enable such securities to be in such
denominations and registered in such names as the Sellers may request and
keep available and make available to the Company's transfer agent prior to
the effectiveness of such Resale Registration Statement a supply of such
certificates;
ix) during the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents required to
be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the United States Securities Exchange Act of 1934, as amended (the
"Securities Exchange Act");
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x) advise each Seller, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the
Commission suspending the effectiveness of the Resale Registration
Statement or the initiation or threatening of any proceeding for such
purpose and promptly use its reasonable efforts to prevent the
issuance of any stop order or to obtain its withdrawal at the earliest
possible moment if such stop order should be issued.
(b) Each Seller agrees by acquisition of any Registrable Shares that,
upon receipt of any notice (a "Suspension Notice") from the Ccompany of the
happening of any event of the kind described in Paragraph 7.5(a)(v)(C),
such Seller will forthwith discontinue disposition of Registrable Shares
until such Seller's receipt of the copies of the supplemented or amended
prospectus contemplated by Paragraph 7.5(a)(v)(C), or until it is advised
in writing (the "Advice") by the Company that the use of the prospectus
may be resumed, and has received copies of any additional or supplemental
filings which are incorporated by reference in the prospectus, and, if so
directed by the Company, such Seller will deliver to the Company all copies
of the prospectus covering such Registrable Shares current at the time of
receipt of such notice. In the event the Company shall give any such
Suspension Notice, (i) the Company shall use reasonable efforts and take
such actions as are reasonably necessary to render the Advice as promptly
as practicable and (ii) the time period regarding the effectiveness of
registration statements set forth in Paragraph 7.5(ii) hereof shall be
extended by the number of days during the period from and including the
date of the giving of the Suspension Notice to and including the date
when each Seller shall have received the copies of the supplemented or
amended prospectus or the Advice.
(c) All expenses incident to the Buyer's performance of or
compliance with this Agreement including, without limitation, all
registration and filing fees, all fees and expenses associated with
filings required to be made with the National Association of Securities
Dealers, Inc. ("NASD") as may be required by the rules and regulations
of the NASD, fees and expenses of compliance with securities or "blue
sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualifications of the Registrable Securities),
printing expenses (including expenses of printing certificates for the
Registrable Shares in a form eligible for deposit with Depositary Trust
Company), messenger and delivery expenses, the Company's internal
expenses (including without limitation all salaries and expenses of its
officers and employees performing legal or accounting duties), the fees
and expenses incurred in connection with any listing of the Registrable
Shares, fees and expenses of counsel for the Company and its independent
certified public accountants (including the expenses of any special audit
or "cold comfort" letters required by or incident to such performance),
securities acts liability insurance (if the Company elects to obtain such
insurance), the fees and
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expenses of any special experts retained by the Company in connection
with such registration, fees and expenses of other persons retained by
the Company (all such expenses being herein called "Registration
Expenses") will be borne by the Buyer whether or not the Resale
Registration Statement becomes effective; PROVIDED that in no event
shall Registration Expenses included (i) any underwriting discounts,
commissions, or fees attributable to the sale of the Registrable
Shares, (ii) any fees or expenses of any counsel, accountants, or other
persons retained or employed by the Sellers or (iii) printing expenses
for printing prospectuses.
(d) In connection with the Resale Registration Statement, each
Seller will furnish to the Buyer in writing such information and affidavits
as the Buyer reasonably requests for use in connection with, and
verification of matters contained in, the Resale Registration Statement.
8. OTHER LEGAL MATTERS. The reference in Paragraph 9.3 to "and its
Subsidiaries" is deleted.
9. OWNERSHIP OF SHARES. Paragraph 9.6 of the Agreement shall be
replaced in its entirety with the following:
Upon consummation of the Closing, Buyer shall acquire full, exclusive
and unconditional ownership of the Shares, which Shares shall constitute
49.9% of the total number of Outstanding Shares, as calculated on a
fully-diluted basis taking into account all options, warrants,
subscription and other rights outstanding for the purchase of capital
shares or founder shares of the Company and any securities which allow
the holders thereof voting rights or any rights to share in the profits
of the Company.
10. DELIVERIES AT CLOSING. Subparagraph 11.2.2(c) is deleted and the
last sentence of the first paragraph of Paragraph 11.2 is replace in its
entirety by the following:
Buyer and each of the Sellers shall sign and date such entries and
declaration of transfer in the Company's Shareholders' Registry as
appropriate to effect the transfer of the Shares from Sellers to Buyer.
11. LOCKUP AGREEMENT. Paragraph 12.8 shall be amended to replace the
reference to "until the later of June 6, 1998 or 41 days after the issuance
of shares of Premier Common Stock" with "until June 23, 1998."
12. CONSULTING AGREEMENTS. A new Paragraph 12.11 is added as follows:
12.11 CONSULTING AGREEMENTS. Following the completion of the Takeover
Bid, Buyer shall cause the Company and Messrs. Xxxx Xxxxx, Xxxxxxx Xxxxx
and Xxxx Xxxxx or with one or more companies controlled by the same
intend to
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enter into consulting agreements each with a fixed term of three
years and with aggregate annual consideration for all such agreements of
BEF 15,000,000* and on such terms as are agreed by the parties thereto.
13. SELLER'S INDEMNIFICATION. Paragraph 14.1 is replaced in its
entirety with the following:
Subject to the further provisions of this Article 14, Sellers shall each
severally (in proportion to the number of Shares sold by each Seller at
Closing) indemnify, defend and hold harmless Buyer, Premier and their
respective officers and directors (and, in the case of clause (ii), the
Company and its Subsidiaries) against any and all losses, liabilities,
claims, damages, costs and expenses (collectively the "Damages"), insofar
as such Damages (or actions in respect thereof) are based upon or arise
out of (i) any breach or non-fulfillment of any warranty, representation,
covenant or agreement made herein by Sellers, (ii) the litigation between
Xx. Xxxxxxx, Xxxxxx Primaire d'Assurance Maladie xx Xxxx and Avenir
Land S.A. referred to on Schedule 4.10 to the Agreement (the "Xxxxxxx
Litigation"), (iii) any untrue statement or alleged untrue statement of
a material fact contained in the Resale Registration Statement (or any
prospectus contained therein or used in connection therewith), or any
amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, but only to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission is contained in any information or affidavit furnished in
writing by such Seller or any of such Seller's employees, officers,
directors, agents or affiliates specifically for inclusion in, or
verification of matters set forth in the Resale Registration Statement
(or prospectus contained therein or use in connection therewith) or (iv)
any failure by the Sellers to deliver a copy of the Resale Registration
Statement or prospectus or amendment or supplement thereto. The
indemnification obligations provided for in this Paragraph shall be such
party's sole remedy with respect to the breach of any warranty,
representation, covenant or agreement made by Sellers in this Agreement
and such indemnification shall be the sole responsibility of each Seller
(in proportion to the number of Shares sold by each Seller at Closing),
and, without prejudice to Paragraph 14.3.4, they shall not have any right
to recover any portion of their liability from the Company or any
Subsidiary, whether by right of indemnification, contribution or
otherwise; PROVIDED, HOWEVER, that the foregoing shall not apply to
limit the rights of Buyer pursuant to Paragraph 16.15 (Specific
Performance).
14. BUYER'S INDEMNIFICATION. Paragraph 14.2 is replaced in its
entirety with the following:
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Subject to the further provisions of this Article 14, Buyer shall
indemnify and hold harmless Sellers and their respective officers
and directors against all Damages insofar as such Damages (or
actions in respect thereof) are based upon or arise out of (i)
any breach of any warrant, representation, covenant or agreement
made herein by Buyer or (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Resale Registration
Statement (or any prospectus contained therein or used in connection
therewith), or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading,
except to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission is contained in any
information or affidavit furnished in writing by such Seller or
any of such Seller's employees, officers, directors, agents or
affiliates, specifically for inclusion in, or verification of
matters set forth in the Resale Registration Statement (or prospectus
contained therein or use in connection therewith).
15. XXXXXXX LITIGATION. A new Paragraph 14.4.9 is added as follows:
14.4.9 The limitations set forth in Paragraphs 14.4.1, 14.4.2, 14.4.3
and 14.4.8 are expressly made inapplicable to the Sellers'
indemnification pursuant to Paragraph 14.1(ii). Sellers shall not be
liable for indemnification obligation with respect to the Xxxxxxx
Litigation pursuant to Paragraph 14.1(ii) unless and until the
aggregate Damages incurred by the indemnified parties from
the Xxxxxxx Litigation exceeds FRF 6.5 million, in which case Sellers
shall be liable for indemnification to the full extent of such excess.
Subject to the terms of Paragraph 14.3.2 Sellers and Buyer agree that
with respect to the Xxxxxxx Litigation that Sellers have elected to
defend the Xxxxxxx Litigation, such defense to be directed by Xxxx Xxxxx.
16. COUNTERPARTS. This Amendment No. 1 may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. DUE DILIGENCE. Buyer acknowledges that, prior to the Closing, it
has received, together with its counsel and advisors, access to all documents
and information marked for such purposes by the parties or their
representatives and has also received certain information through meetings
and discussions with the Company's staff and advisors and through appropriate
searches of the public record.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment
No. 1 as of the date first above written.
BUYER:
PREMIER PARKS INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SELLERS:
CENTRAG S.A.
By: /s/ X. Xxxxx
---------------------------------
Name: X. Xxxxx
-------------------------------
Title:
------------------------------
XXXXXX X.X.
By: /s/ Luc Florizoone
---------------------------------
Name: Luc Florizoone
-------------------------------
Title:
------------------------------
WESTKOI N.V.
By: /s/ Luc Florizoone
---------------------------------
Name: Luc Florizoone
-------------------------------
Title:
------------------------------
IN WITNESS WHEREOF, the parties have duly executed this Amendment
No. 1 as of the date first above written.
BUYER:
PREMIER PARKS INC.
By: /s/ Xxxxx X. [illegible]
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SELLERS:
CENTRAG S.A.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXXXX N.V.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
WESTKOI N.V.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SCHEDULE I
Shares
------
Centrag S.A. 545,711 shares
Xxxxxx X.X. 73,526 shares
Westkoi S.A. 45,938 shares
Total 665,167 shares
