EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("AGREEMENT") is made this 7th day of
November, 1997, by and among PREMIER PARKS INC., a Delaware corporation
("BUYER") and the persons listed on the signature page of this Registration
Rights Agreement (collectively, the "HOLDERS" and individually, a "HOLDER").
Buyer, Kentucky Kingdom, Inc. (the "COMPANY") and certain other parties have
executed and delivered a Stock Purchase Agreement dated as of September 26, 1997
(the "STOCK PURCHASE AGREEMENT"), pursuant to which Buyer has agreed to purchase
all of the Interests in the LLC in accordance with the terms of the Stock
Purchase Agreement.
Pursuant to the Stock Purchase Agreement, Buyer has issued to the Holders
the number of shares of Buyer Stock (the "TRANSACTION SHARES") set forth on
Exhibit A hereto.
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 tenth 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 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.
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
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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;
(c) notify the Holders of Registered Securities being registered
promptly, and (if requested by any such person) confirm such advice in
writing (i) 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, (ii) of any request by the SEC for
amendments or supplements to the Shelf Registration Statement or the
Prospectus or for additional information, (iii) 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, (iv) 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 (v) 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
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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 in writing 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 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, if in writing requested by any such person, at least one 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 lawful 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
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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)(v) above, prepare a post-effective amendment to the Shelf
Registration Statement and/or a 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)(iii), (iv)
or (v) 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
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that the use of the Prospectus may be resumed, and if requested 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, 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 Holders. 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
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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 to Buyer by such Indemnified Person 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
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such Indemnified Person shall have been advised by counsel that there is
a conflict of interest 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, 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.
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(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 relating to such Holder or an Indemnified Person who is such by
reason of such person's relationship to such Holder, furnished 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.
(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
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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 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. 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 time prior to the expiration of the statutes of limitation applicable
to the claims for which indemnification is sought.
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9. OTHER AGREEMENTS. Promptly following the filing thereof with the
SEC, Buyer shall deliver to each of the Holders, if so requested, 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 the Transaction Documents), 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 Commonwealth of Kentucky, without regard to
conflict of laws principles applied in the Commonwealth of Kentucky.
(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.
(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.
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(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.
(h) Notices hereunder shall be delivered in accordance with
Section 8.1 of the Stock Purchase Agreement.
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IN WITNESS WHEREOF, the parties have hereunto executed this Agreement as of
the day and year first above written.
BUYER
PREMIER PARKS INC.
By:
-----------------------------------------
Xxxxx X. Xxxxxxxxxx
Chief Financial Officer
HOLDERS
XXXX-XXXXXXXX ENTERPRISES, LLC
By:
-----------------------------------------
Xxxxxx X. Xxxx
Administrative Member
KENTUCKY KINGDOM, INC.
By:
-----------------------------------------
Xxxxxx X. Xxxx
President
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EXHIBIT A
Holder Number of Shares
------- -----------------
Xxxx-Xxxxxxxx Enterprises, LLC ..................... 50,561
Kentucky Kingdom, Inc. ............................. 71,110
