EXHIBIT 4(m)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("AGREEMENT") is made
this day of ___________, 1997, by and among Premier Parks Inc., a
Delaware corporation ("BUYER"), Xxxxxx X. Xxxxxxx, Xx. ("XXXXXXX") and The
Xxxxxxx Family Limited Partnership (the "PARTNERSHIP") (Xxxxxxx and the
Partnership are sometimes hereinafter referred to as "SELLERS" or the
"HOLDERS" and individually, as a "SELLER" or a "HOLDER").
Buyer, Stuart Amusement Company, a Massachusetts corporation, and
Sellers have executed and delivered a Stock Purchase Agreement dated as of
December 4, 1996 (the "STOCK PURCHASE AGREEMENT"), pursuant to which Buyer
has agreed to purchase all of the Shares owned by each Seller in accordance
with the terms of the Stock Purchase Agreement.
Pursuant to the Stock Purchase Agreement, the Holders will receive
in payment of 10% of the Net Proceeds the number of shares of Buyer Stock
(the "TRANSACTION SHARES") set forth on Exhibit A hereto in accordance with
the terms of the Stock Purchase Agreement;
Pursuant to the Stock Purchase Agreement, Buyer has agreed to
register the Transaction Shares under the Securities Act of 1933, as amended
(the "SECURITIES ACT");
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS. All capitalized terms used herein but not
otherwise defined shall have the meanings ascribed to them in the Stock
Purchase Agreement.
2. SHELF REGISTRATION. (a) No later than the fifth business day
following the Closing Date, Buyer shall file with the Securities and Exchange
Commission (the "SEC")
a registration statement on Form S-3 (or a successor registration form) (the
"SHELF REGISTRATION STATEMENT") under the Securities Act covering all of the
Transaction Shares (the Transaction Shares being so registered are hereinafter
referred to as the "REGISTERED SECURITIES"). Buyer shall use its reasonable
good faith efforts to have the Registration Statement declared effective as soon
as practicable following the filing date and to keep current the prospectus (the
"PROSPECTUS") included in the Shelf Registration Statement for a period of two
(2) years (the "TERM") from the effective date (the "EFFECTIVE DATE") of the
Shelf Registration Statement.
Notwithstanding anything contained herein to the contrary, the
Holders acknowledge that Buyer may include in the Shelf Registration
Statement any shares of Buyer Stock held by securityholders of Buyer who as
of the filing date thereof shall be entitled to include such shares of Buyer
Stock in the Shelf Registration Statement pursuant to certain agreements
between Buyer and such securityholders.
3. HOLDBACK AGREEMENT. If at any time during the Term Buyer
proposes to register any shares of Buyer Stock in one or more registration
statements under the Securities Act pursuant to an underwritten offering (the
"UNDERWRITTEN OFFERING") and if requested by the managing underwriters of the
Underwritten Offering, each Holder agrees not to effect any public sale or
distribution of Registered Shares pursuant to the Shelf Registration
Statement during the ten-day period prior to, and during the 90-day period
beginning on, the closing date of each such Underwritten Offering, without
the consent of the managing underwriters, to the extent such Holder is timely
notified in writing by Buyer or the managing underwriters. Notwithstanding
the foregoing, the Holders shall have the right
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to sell Registered Shares pursuant to the Shelf Registration Statement without
regard to the provisions of this Section 3 and notwithstanding the occurrence of
any Underwriter Offerings for at least 45 consecutive days during each of the
first and the second six-month periods of each year of the Term and, unless such
a 45-day period shall have previously occurred during any applicable six-month
period, such 45-day period shall be the last 45 days of such six-month period.
4. REGISTRATION PROCEDURES. In connection with the registration
of the Registered Securities, Buyer shall:
(a) before filing the Shelf Registration Statement or a
Prospectus or any amendments or supplements thereto (excluding documents
incorporated by reference), furnish to the Holders, if any, copies of all
such documents proposed to be filed. Buyer shall not file the Shelf
Registration Statement or amendment or supplement thereto or Prospectus to
which the Holders of a majority of the Registered Securities covered in the
Shelf Registration Statement shall reasonably object;
(b) prepare and file with the SEC such amendments or
supplements to the Prospectus and such post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the Prospectus current for
the Term, and otherwise comply with the provisions of the Securities Act
applicable to it in connection with the offer and sale of the Registered
Securities pursuant to the Shelf Registration Statement during the Term in
accordance with the intended methods of disposition by the Holders set forth
in the Shelf Registration Statement;
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(c) notify the Holders of Registered Securities being
registered promptly, and (if requested by any such person) confirm such
advice in writing (1) when the Shelf Registration Statement, the Prospectus
or any supplement or amendment thereto has been filed, and, with respect to
the Shelf Registration Statement or any post-effective amendment thereto,
when the same has become effective, (2) of any request by the SEC for
amendments or supplements to the Shelf Registration Statement or the
Prospectus or for additional information, (3) of the issuance by the SEC of
any stop order suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that purpose, (4) of the
receipt by Buyer of any notification with respect to the suspension of the
qualification of the Registered Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, and (5) of
the happening of any event which makes any statement made in the Shelf
Registration Statement, the Prospectus or any document incorporated therein
by reference untrue in any material respect or which requires the making of
any changes in the Shelf Registration Statement, the Prospectus or any
document incorporated therein by reference in order to make the statements
therein not misleading in any material respect;
(d) use reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of the Shelf Registration Statement at the
earliest possible moment;
(e) if requested by the Holders of a majority of the Registered
Securities being registered, incorporate in the Shelf Registration Statement,
the Prospectus or any supplement or amendment thereto such information as
such Holders agree should be
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included therein relating to the distribution of the Registered Securities;
and make all required filings of the Shelf Registration Statement,
Prospectus, amendment or supplement as soon as practicable following the
notification of the matters to be incorporated therein;
(f) furnish to each Holder of the Registered Securities, without
charge, at least one signed copy of the Shelf Registration Statement and any
amendment thereto, including financial statements and schedules and all
documents incorporated therein by reference;
(g) deliver to each Holder of Registered Securities, without
charge, as many copies of the Prospectus and any amendment or supplement
thereto as such persons may reasonably request; Buyer consents to the use of
the Prospectus or any amendment or supplement thereto by each of the Holders
in connection with the offering and sale of the Registered Securities covered
by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registered Securities, use
reasonable efforts to register or qualify, and to cooperate with the Holders
and their respective counsel in connection with the registration or
qualification of, such Registered Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holder
reasonably requests in writing; PROVIDED that Buyer will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process in any such jurisdiction where it is not then so subject;
(i) upon the occurrence of any event contemplated by Section
(4)(c) above, prepare a post-effective amendment to the Shelf Registration
Statement and/or a
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supplement to the Prospectus and/or an amendment to any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registered Securities, the Prospectus will
not contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading;
(j) use its best efforts to list the Registered Securities on
the securities exchange on which Buyer Stock is then listed, if any.
Buyer may require each Holder to furnish to Buyer such
information regarding the distribution of the Registered Securities as Buyer
may from time to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from
Buyer of the happening of any event of the kind described in Section 4(c)
hereof, such Holder will forthwith discontinue disposition of Registered
Securities pursuant to the Shelf Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated
by Section 4(i) hereof, or until it is advised in writing by Buyer 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 Buyer, each Holder will deliver to Buyer
all copies, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registered Securities at the time
of receipt of such notice.
5. REGISTRATION EXPENSES. Except as otherwise provided below, all
expenses incident to Buyer's performance of or compliance with this Agreement,
including,
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without limitation, all registration and filing fees, including with respect to
filings required to be made with the National Association of Securities Dealers,
fees and expenses of compliance with state securities or blue sky laws, printing
expenses, mailing and delivery expenses, and fees and disbursements of counsel
for Buyer will be borne by Buyer. Buyer shall not be liable for, and the
Holders shall bear the entire cost of, any discounts, commissions, selling fees
of or other payments to, underwriters, selling brokers or similar persons
relating to the distribution of the Registered Securities and the fees and
expenses of counsel for such Holder. Buyer shall not be liable for any stock
transfer taxes in connection with any resale of Registered Securities by a
Holder.
6. INDEMNIFICATION. (a) Buyer will indemnify and hold each Holder
and each officer, director or partner thereof, and each person who controls
any such Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934 (the "1934 ACT") (each such
Holder, and each such controlling person being referred to as an "INDEMNIFIED
PERSON") harmless from and against any and all losses, claims, damages,
liabilities and expenses arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Shelf
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances
under which they were made, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue statement
or omission or allegation thereof based upon information furnished in writing
to Buyer by such Indemnified Person
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expressly for use therein. Notwithstanding the foregoing, Buyer shall not be
obligated to so indemnify any such Holder or controlling person with respect to
any such loss, claim, damage, liability or expense arising out of (i) the
failure by such Holder to comply with the prospectus delivery requirements under
the Securities Act and the rules and regulations promulgated thereunder or (ii)
the failure by such Holder to comply with the provisions of the last paragraph
of Section 4 hereof.
(b) If any action or proceeding (including any governmental
investigation) shall be brought, threatened or asserted against any
Indemnified Person in respect of which indemnity may be sought from Buyer,
such Indemnified Person shall promptly notify Buyer in writing, and Buyer
shall assume the defense thereof, including employment of counsel and the
payment of all expenses related thereto. Any such Indemnified Person shall
have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) Buyer has
agreed to pay such fees and expenses; or (ii) Buyer shall have failed to
assume the defense of such action or proceeding and employ counsel in such
action or proceeding; or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include both such Indemnified
Person and Buyer, and such Indemnified Person shall have been advised by
counsel that there is reasonable likelihood that a conflict of interest will
exist between such Indemnified Person and Buyer (in which case, if such
Indemnified Person notifies Buyer in writing that it elects to employ
separate counsel at the expense of Buyer, Buyer, will not have the right to
assume the defense of such action or proceeding on behalf of such Indemnified
Person); provided,
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however, that Buyer will not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings arising out of the same general allegations or circumstances be
liable for the fees and expenses of more than one separate firm of attorneys at
any time for all such Indemnified Persons, which firm shall be designated in
writing by a majority in interest of such Indemnified Persons. Buyer shall not
be liable for any default judgment caused by any Indemnified Person or
settlement of any such action or proceeding or confession of judgment without
its prior written consent, but if settled with its written consent, or if there
be a final judgment (other than such default judgment) for the plaintiff in any
such action or proceeding, Buyer agrees to indemnify and hold harmless such
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. If Buyer agrees to a settlement of an action or
proceeding against an Indemnified Person which does not involve any finding or
admission of liability or wrongdoing on the part of the Indemnified Person and
stands ready, willing and able to pay such settlement and the Indemnified Person
refuses to settle, then the Indemnified Person shall continue the defense at its
own expense and Buyer shall be responsible to indemnify only the lesser of the
amount of the settlement accepted by Buyer or the cost of the final disposition
of the claim.
(c) Each Holder agrees to indemnify and hold harmless Buyer, its
directors and officers, and each person, if any, who controls Buyer within the
meaning of either Section 15 of the Securities Act or Section 20 of the 1934
Act, to the same extent as the indemnity from Buyer to each Indemnified Person
set forth in Section 6(a), but only with respect to (i) untrue statements,
alleged untrue statements, omissions or alleged omissions
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relating to such Holder or an Indemnified Person who is such by reason of such
person's relationship to such Holder, furnished in writing by such Holder or
such person to Buyer expressly for use in the Shelf Registration Statement or
the Prospectus, or any amendment or supplement thereto, (ii) any failure by such
Holder to comply with the prospectus delivery requirements under the Securities
Act and the rules and regulations thereunder and (iii) any failure by such
Holder to comply with the provisions of the last paragraph of Section 4 hereof.
In case any action or proceeding shall be brought against Buyer or its officers
or directors or any such controlling person in respect of which indemnity may be
sought against a Holder under the provisions of this Section 6(c), such Holder
shall have the rights and duties given to Buyer and each of Buyer or its
directors or its officers or its controlling persons shall have the rights and
duties given to each Holder and other Indemnified Persons, under the terms of
Section 6(b) above. In no event shall the obligation of the Holder hereunder be
greater than the dollar amount of the proceeds received by such Holder upon the
sale of the Registered Securities giving rise to such indemnification
obligations.
(d) If the indemnification provided for under Section 6(a) or
Section 6(c) hereof is unavailable to an indemnified party thereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative benefits to Buyer, on the one hand, and the Holders, on the other,
of the transactions contemplated by the Shelf Registration Statement, the
relative fault of Buyer, on the one hand, and of the Holders, on the other,
in connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of Buyer, on the one hand, and
of the Holders, on
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the other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by Buyer or by such Holders and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. Notwithstanding the
provisions of this paragraph (d), no Holder shall be required to contribute any
amount in excess of the amount by which the net proceeds from the sale of its
shares exceeds the amount of any damages it has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Subsection 11(f) of the Securities Act) shall be entitled to contribution
from any person who is not guilty of such fraudulent misrepresentation.
7. NOTIFICATION OF SALE. Each Holder agrees to notify Buyer in
writing of any sale of Registered Securities made by such Holder during the
Term pursuant to the Shelf Registration Statement promptly following such
sale.
8. TERMINATION OF REGISTRATION RIGHTS. The provisions of this
Agreement (other than Section 6 with respect to any claim for indemnification
thereunder), and the rights and obligations of the parties hereunder, will
terminate on the earlier of (i) the expiration of the Term or (ii) the sale
by the Holders of all of the Registered Securities pursuant to the Shelf
Registration Statement. Claims for indemnification may be made at any
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time prior to the expiration of the statutes of limitation applicable to the
claims for which indemnification is sought.
9. OTHER AGREEMENTS. Promptly following the filing thereof with
the SEC, Buyer shall deliver to each of the Holders a copy of each of Buyer's
reports, documents and other filings made pursuant to Section 13 or 15(d) of
the 1934 Act.
10. MISCELLANEOUS. (a) This Agreement constitutes the entire
agreement between the parties relating to its subject matter and merges and
supersedes and terminates all prior written and oral agreements (other than
the Stock Purchase Agreement), and all contemporaneous oral agreements,
between the parties. This Agreement may not be changed in any respect except
by a writing duly executed by the party to be charged.
(b) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to
conflict of laws principles applied in the State of New York.
(c) This Agreement shall be binding upon and shall inure to
the benefit of the parties and to their respective successors and assigns.
(d) The headings of the Sections of this Agreement are for
convenience of reference only, are not part of this Agreement and shall not be
used in its interpretation.
(e) No provision of this Agreement that is held to be
unenforceable by a court of competent jurisdiction shall in any way
invalidate any other provision of this Agreement, all of which shall remain
in full force and effect.
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(f) The rights and obligations of Buyer and the Holders under
this Agreement may not be assigned or delegated without the prior written
consent of the other party.
(g) This Agreement may be executed in counterparts, each of which
shall constitute an original document and all of which together shall constitute
one and the same document.
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IN WITNESS WHEREOF, the parties have hereunto executed this
Agreement as of the day and year first above written.
PREMIER PARKS INC.
By:
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Name:
Title:
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Xxxxxx X. Xxxxxxx, Xx.
The Xxxxxxx Family Limited Partnership
By:
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Xxxxxx X. Xxxxxxx, Xx., President
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