EXHIBIT B
PREMIER PARKS INC.
SUBSCRIPTION AGREEMENT
Premier Parks Inc.
00000 Xxxxxxxxx Xxxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Chairman of the Board
Gentlemen:
I. Subscription.
The undersigned (the "Subscriber"), intending to be
legally bound, hereby agrees to purchase from Premier Parks Inc.
(the "Company"), a Delaware corporation, the number of shares
(the "Shares") of Series A 7% Cumulative Convertible Preferred
Stock, par value $1.00 per share (the "Preferred Stock"), of the
Company set forth on the signature page hereof. This
subscription is submitted to the Company in accordance with and
subject to the terms and conditions described in this Agreement,
relating to a placement (the "Placement") to the Subscriber and
certain other purchasers (collectively, the "Purchasers") of up
to 200,000 shares of Preferred Stock (the "Preferred Shares").
The purchase price ("Purchase Price") of the Preferred Shares
shall be $100.00 per Share.
II. Closing.
1. Time and Place. The closing (the "Closing") of
the purchase and sale of the Shares contemplated by this
Agreement shall be held at the offices of Xxxx Marks & Xxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M. New York
time on the Closing Date, as such term is defined in the
Agreement and Plan of Merger, dated as of June 30, 1995, as in
effect on the date hereof (the "Merger Agreement"), among the
Company, a wholly-owned subsidiary of the Company, Premier Parks
Acquisition, Inc., Funtime Parks, Inc. ("Funtime") and certain of
the shareholders of Funtime, Parks, Inc., a true and complete
copy of which has been delivered to the Subscriber by the
Company. Pursuant to an escrow agreement (the "Escrow
Agreement"), between the Company and Xxxx Marks & Xxxxx (the
"Escrow Agent"), a true and complete copy of which has been
delivered to the Subscriber by the Company, the Escrow Agent will
hold funds of the Purchasers (collectively, the "Escrow Funds"),
respectively, representing payment of the Purchase Price. If the
Closing shall not have occurred on or prior to September 30, 1995
or, if the Merger Agreement shall be terminated in accordance
with its terms, the Escrow Agent shall forthwith return the
Escrow Funds to the Purchasers, with accrued interest thereon.
For purposes of this Agreement, "business day" shall mean any day
on which banks are not required or authorized to close in the
City of New York. The Company will give the Subscriber at least
five business days' prior written notice of the Closing Date.
Except as otherwise provided herein or in the Escrow Agreement,
the subscription by the Subscriber shall be irrevocable and shall
survive the death, incapacity or disability of the Subscriber;
provided, however, that, without limiting any other provision set
forth in this Agreement or the Escrow Agreement, the obligations
of the parties at the Closing shall be conditioned upon the
consummation of the Merger, as defined in the Merger Agreement
and the receipt by the Subscriber of the Supplement (as
hereinafter defined) in form and substance reasonably acceptable
to the Subscriber.
2. Delivery by Company. At the Closing, against
receipt of the Purchase Price for the Shares being purchased at
such Closing paid by the Subscriber, and as a condition thereto,
the Company shall deliver to the Subscriber (i) a share cer-
tificate registered in the Subscriber's name and representing
such Shares, which certificate shall bear the legend set forth in
Section 4.7(d) hereof, together with any legends required under
applicable state securities laws, (ii) an opinion of Xxxx Marks &
Xxxxx, addressed to the Subscriber and dated the Closing Date, in
form and substance satisfactory to the Subscriber with respect to
the matters set forth in Exhibit A hereto, and (iii) evidence in
form and substance satisfactory to the Subscriber that the
Company has received any and all opinions of counsel to Funtime
and its Shareholders provided for under the Merger Agreement.
The Company shall pay any and all taxes and governmental fees in
connection with: (a) the issuance, sale or delivery by the
Company to the Subscriber of the Shares, and (b) the execution
and delivery of this Agreement and any other documents or
instruments executed and delivered to the Subscriber at the
Closing. The Company shall hold the Subscriber harmless, without
limitation as to time, against any and all liabilities with
respect to any such taxes and fees, and such obligations shall
survive the transfer of the Shares, or any of them, and the
termination of this Agreement; provided, however, that such
obligations shall not extend to any taxes and governmental fees
due of the Subscriber of any Shares as a consequence of its
transfer of such Shares, or in respect of any income or gains to
such Subscriber. At the Closing, the Company shall deliver to
the Subscriber such additional certificates, instruments, and
other documents in form and substance satisfactory to the
Subscriber as the Subscriber shall have reasonably requested in
connection with the Closing.
3. Payment of the Purchase Price by the Subscriber.
No later than two business days prior to the Closing, the
Subscriber shall pay the Purchase Price for the Shares being
purchased at the Closing by means of a bank wire transfer of
immediately available funds to the Escrow Agent to an account, to
be held by the Escrow Agent pursuant to the Escrow Agreement,
designated in the Company's notice of the Closing referred to
above. The Subscriber must complete the information called for
on the signature page hereof relating to such wire transfer.
III. Acceptance of Subscription.
The Subscriber understands and agrees that the Company in
its sole discretion reserves the right to accept or reject this
subscription and any other subscription for the Preferred Shares,
in whole or in part, at any time prior to the Closing, notwith-
standing prior receipt by the Subscriber of oral or written
notice of acceptance. If this subscription is rejected by the
Company in whole or in part, the Company shall promptly return
all funds (or in the case of a partial rejection, the portion of
the funds representing the Purchase Price of the rejected
subscription) received from the Subscriber. If the subscription
is rejected in whole, this Agreement shall thereafter be of no
further force or effect, except as otherwise expressly stated
herein.
IV. Representations, Warranties and Agreements of
Subscriber. The Subscriber hereby acknowledges, represents and
warrants to, and agrees with, the Company, as follows:
A. 1. The Subscriber understands that the offering
and sale of the Preferred Shares is intended to be exempt from
registration under the Securities Act of 1933, as amended (the
"Act"), by virtue of Section 4(2) of the Act and the provisions
of Regulation D promulgated thereunder, and in accordance
therewith and in furtherance thereof, the Subscriber represents
and warrants and agrees as follows:
2. The Subscriber and/or the Subscriber's
adviser(s) (i) has/have received the Company's Preliminary
Confidential Placement Memorandum, dated July 21, 1995, relating
to the issuance by the Company of its Senior Notes (the "Senior
Notes") in connection with the Merger (at the date hereof
referred to as the "Memorandum" and, at Closing, together with a
supplement thereto (the "Supplement") setting forth the principal
terms of the Senior Notes not included in such Preliminary
Memorandum herein referred to as the "Memorandum"), and a copy of
the Certificates of Designation relating to the Preferred Shares
(collectively, the "Certificate"), in all material respects in
the form in which it will be filed with the Secretary of State of
the State of Delaware, (ii) has/have carefully reviewed the
information contained therein, and (iii) has/have had access to
the same kind of information which would have been available in a
registration statement filed by the Company under the Act.
3. The Subscriber acknowledges that the
Subscriber, the Subscriber's attorney, accountant, or adviser(s)
has/have had a reasonable opportunity to inspect all documents,
records and books pertaining to this investment (including,
without limitation, the Memorandum).
4. The Subscriber and/or the Subscriber's
adviser(s) has/have had a reasonable opportunity to ask questions
and receive answers from a person or persons acting on behalf of
the Company concerning the Merger, the issuance of the Senior
Notes and the Placement and all such questions have been answered
to the full satisfaction of the Subscriber.
5. No oral or written information furnished to
the Subscriber or the Subscriber's adviser(s) in connection with
the Placement was in any way inconsistent with the information
stated in the Memorandum.
6. The Subscriber is not subscribing for the
Shares as a result of or subsequent to any advertisement,
article, notice or other communication published in any
newspaper, magazine, or similar media or broadcast over
television or radio, or presented at any seminar or meeting, or
any solicitation of a subscription by any person other than a
representative of the Company.
7. If the Subscriber is a natural person, the
Subscriber has reached the age of majority in the jurisdiction in
which the Subscriber resides; the Subscriber has adequate means
of providing for the Subscriber's current financial needs and
contingencies, is able to bear the substantial economic risks of
an investment in the Shares for an indefinite period of time, has
no need for liquidity in such investment, and, at the present
time, could afford a complete loss of such investment.
8. The Subscriber has such knowledge and
experience in financial, tax and business matters so as to enable
the Subscriber to utilize the information made available to the
Subscriber in connection with the Placement to evaluate the
merits and risks of an investment in the Shares, and to make an
informed investment decision with respect thereto.
9. The Subscriber is not relying on the Company
or any agent of the Company with respect to the tax and other
economic considerations of an investment in the Shares (except as
set forth in the final sentence of Section 2(b) hereof).
10. The Subscriber will not sell or otherwise
transfer the Shares without registration under the Act and
applicable state securities laws, or pursuant to an exemption
therefrom. The Shares have not been registered under the Act or
under the securities laws of any state and, except as set forth
under Section 6 hereof, the Company will be under no obligation
to so register the Shares. The Subscriber represents that the
Subscriber is purchasing the Shares for the Subscriber's own
account, for investment and not with a view to resale or
distribution except in compliance with the Act and applicable
state securities laws.
11. The Subscriber recognizes that investment in
the Shares involves substantial risks, including the risk of loss
of the entire amount of such investment, and has taken full
cognizance of and understands all of the risks related to the
purchase of the Shares.
B. The Subscriber is an "accredited investor" as that
term is defined in Regulation D under the Act inasmuch as the
Subscriber meets the requirements of one or more of the
subparagraphs listed in Exhibit B hereto as of the date of this
Agreement, and if there is any material change in such status
prior to the Closing, the Subscriber will promptly notify the
Company in writing.
C. The Subscriber's overall commitment to investments
which are not readily marketable is reasonable in relation to the
Subscriber's net worth.
D. The Subscriber hereby agrees to provide such
information and to execute and deliver such documents as may
reasonably be necessary to comply with any and all laws to which
the Company is subject, including without limitation, such
additional information as the Company may deem appropriate with
respect to the Subscriber's suitability.
E. The execution, delivery and performance of this
Agreement by the Subscriber (i) will not constitute a default
under or conflict with any agreement or instrument to which the
Subscriber is a party or by which it or its assets are bound,
(ii) will not conflict with or violate any order, judgment,
decree, statute, ordinance or regulation applicable to the
Subscriber (including, without limitation, any applicable laws
relating to permissible legal investments) and (iii) do not
require the consent of any person or entity. This Agreement has
been duly authorized, executed and delivered by the Subscriber
and constitutes the valid and binding agreement of the Subscriber
enforceable against it in accordance with its terms, except as
may be limited by bankruptcy, insolvency or other laws affecting
generally the enforceability of creditors' rights and by
limitations on the availability of equitable remedies.
F. The Subscriber has not retained, or otherwise
entered into any agreement or understanding with, any broker or
finder in connection with the purchase of Shares by the
Subscriber, and the Company will not incur any liability for any
fee, commission or other compensation on account of any such
retention, agreement or understanding by the Subscriber.
G. The Subscriber acknowledges:
1. In making an investment decision, the
Subscriber has relied on the Subscriber's own examination of the
Company and the terms of the Placement, including the merits and
risks involved. The Shares have not been recommended by any
federal or state securities commission or regulatory authority.
Furthermore, the foregoing authorities have not confirmed the
accuracy or determined the adequacy of the Memorandum or this
Agreement. Any representation to the contrary is a criminal
offense.
2. The Subscriber, if executing this Agreement
in a representative or fiduciary capacity, has full power and
authority to execute and deliver this Agreement in such capacity
and on behalf of the subscribing individual, xxxx, partnership,
trust, estate, corporation, or other entity for whom the
Subscriber is executing this Agreement, and such individual,
xxxx, partnership, trust, estate, corporation, or other entity
has full right and power to enter into this Agreement and make an
investment in the Shares.
3. The representations, warranties and
agreements of the Subscriber contained herein shall be true and
correct in all material respects on and as of the Closing as if
made on and as of such date and shall survive the execution and
delivery of this Agreement and the purchase of the Shares.
4. The Subscriber understands that the
certificate representing the Shares, the certificates
representing the shares of Preferred Stock issuable as dividends
on the Preferred Shares (the "Dividend Shares") and the
certificates representing the shares (the "Conversion Shares") of
the Company's common stock, par value $.01 per share ("Common
Stock") into which the Preferred Shares are convertible, shall
bear a legend in substantially the following form, together with
any legend required by applicable state securities law, and the
Subscriber shall not transfer any or all of the Shares, the
Dividend Shares, the Conversion Shares or any interest therein,
except in accordance with the terms of such legends:
"The securities represented by this certificate have not
been registered under the Securities Act of 1933, as amended
(the "Act") or applicable state securities laws, and may be
offered, sold or otherwise transferred only if so registered
under the Act and applicable state securities laws or if the
holder has delivered to the Company an opinion of counsel,
which counsel and opinion shall be satisfactory to the
Company, that an exemption from such registration is
available."
V. Representations and Warranties of the Company.
The Company represents and warrants to the Subscriber as
follows:
1. Each of the Company and Tierco Maryland, Inc.,
Frontier City Properties, Inc., Tierco Water Park, Inc. and
Frontier City Partners Limited Partnership (individually, a
"Subsidiary" and collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation or other
business entity in good standing under the laws of its
jurisdiction of organization. The Subsidiaries own and operate
the themed amusement and water parks described in the Memorandum
as owned by them. Each of the Company and its Subsidiaries is
duly qualified and in good standing in each jurisdiction in which
the character or location of its properties or the nature or
conduct of its business makes such qualification necessary,
except where the failure to be so qualified or in good standing
would not, in the aggregate, have a material adverse effect on
the financial condition of the Company and its Subsidiaries,
taken as a whole. Each of the Company and its Subsidiaries has
all requisite corporate power and authority, and all material
consents, approvals, authorizations, orders, registrations,
qualifications, licenses and permits of and from all public,
regulatory or governmental agencies and bodies, to own, lease and
operate its properties and conduct its business as now being
conducted.
2. Neither the Company nor any Subsidiary is in
violation of its charter or by-laws (or other organizational
documents) or in default in any material respect under any
indenture, mortgage, deed of trust, note, bank loan or credit
agreement, or any other agreement or instrument which is material
to the Company and its Subsidiaries, taken as a whole, to which
the Company or any Subsidiary is a party or by which they are
bound. Each of the Company and its Subsidiaries is in compliance
with all laws, rules, regulations, judgments, orders and decrees
of any government or governmental agency or instrumentality
applicable to its business and properties, except where the
failure to so comply would not, in the aggregate, have a material
adverse effect upon the financial condition of the Company and
its Subsidiaries, taken as a whole.
3. All of the outstanding shares of Common Stock have
been duly authorized and are validly issued and outstanding and
are fully paid and non-assessable, free of preemptive rights.
Prior to the Placement, the capitalization of the Company was as
set forth in the Memorandum. Prior to the Closing, the Company
shall not issue any shares of Preferred Stock (except in the
Placement) or, except as described in the Memorandum, any shares
of Common Stock, or securities convertible into or exercisable
with respect to any such shares. Except as disclosed in the
Memorandum, there are no subscriptions, warrants, options, calls,
commitments by or arrangements to which the Company is bound
relating to the issuance or purchase of any shares of capital
stock of the Company.
4. All of the issued and outstanding capital stock
(or other equity interest) of each Subsidiary has been duly and
validly issued and is fully paid and non-assessable and is owned
directly or indirectly by the Company. There are no outstanding
warrants or options to acquire, or instruments convertible into
or exchangeable for, any shares of capital stock (or other equity
interests) of any Subsidiary.
5. Each of the Company and its Subsidiaries owns
outright, in fee simple, title to the real property purported to
be owned by it, free and clear of all liens, mortgages, charges
or encumbrances of any nature, except security interests granted
in connection with the acquisition of such property or financing
transactions which do not materially interfere with or materially
impair the present use of such property in the normal conduct of
the business of the Company or such Subsidiary.
6. Subsequent to March 31, 1995, and except as
disclosed in the Memorandum, there has not occurred any material
adverse change in the condition (financial or otherwise),
earnings or business prospects of the Company and its
Subsidiaries, taken as a whole.
7. There is no action, suit or proceeding before or
by any court or governmental agency now pending, or to the
knowledge of the Company threatened, against the Company or any
Subsidiary that the Company reasonably believes would result in a
material adverse change in the condition (financial or
otherwise), earnings or business prospects of the Company and its
Subsidiaries, taken as a whole, or that would materially and
adversely affect the consummation of the transactions
contemplated by the Merger Agreement or this Agreement. As a
condition to Closing on the part of the Subscriber, no action,
suit or proceeding against the Company or the Subscriber relating
to the consummation of the Placement nor any government action
seeking to delay or enjoin any such transaction shall be pending
or threatened.
8. The historical consolidated financial statements
of the Company contained in the Memorandum present fairly the
financial condition and results of operations of the Company and
its Subsidiaries as of the respective dates and for the
respective periods indicated therein and were prepared in
accordance with generally accepted accounting principles applied
on a consistent basis. To the best of the knowledge of the
Company, based upon information provided to it in connection with
the Merger, the consolidated financial statements of Funtime
contained in the Memorandum present fairly the financial
condition and results of operations of Funtime and its
subsidiaries as of the respective dates and for the respective
periods indicated therein and were prepared in accordance with
generally accepted accounting principles applied on a consistent
basis. The pro forma adjustments have been properly applied to
historical amounts, in all material respects in accordance with
Regulation S-X of the SEC (as defined), in the preparation of the
pro forma financial statements included in the Memorandum.
9. The Company has full corporate power and authority
to enter into this Agreement and to issue and sell the Preferred
Shares on the terms and conditions set forth herein. The
execution and delivery of this Agreement, the Merger Agreement,
the Senior Notes and the consummation of the transactions
contemplated hereby and thereby have been duly and validly
authorized and approved by all necessary corporate action on the
part of the Company. At the Closing, the Subscriber shall have
received a certificate of the Secretary or an Assistant Secretary
of the Company in form and substance satisfactory to the
Subscriber, with respect to the authorization by the Board of
Directors of the Company of this Agreement and the Certificate
and the consummation of the transactions contemplated hereby. As
of the Closing, this Agreement, the Merger Agreement and the
Senior Notes will have been duly executed and delivered and will
constitute the valid and binding obligations of the Company
enforceable in accordance with their respective terms.
10. The Company has previously furnished the
Subscriber with true and complete copies of the Memorandum. As
of the date hereof the information in the Memorandum does not,
and as of the date of the Supplement, the information in the
Memorandum relating to the Company or the Subsidiaries shall not,
contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not
misleading. To the knowledge of the Company, based upon
information provided to it in connection with the Merger, as of
the date hereof the information in the Memorandum relating to
Funtime, and its subsidiaries does not, and as of the date of the
Supplement, the information in the Memorandum relating to Funtime
and its subsidiaries shall not, contain any untrue statement of a
material fact or omit to state any material fact necessary to
make the statements therein not misleading.
11. The Company has delivered to the Subscriber a true
and complete copy of the Merger Agreement. The Merger Agreement
is in full force and effect. Neither the Company or any
subsidiary of the Company, nor, to the best of the knowledge of
the Company, Funtime or any stockholder of Funtime is in default
in any material respect under the Merger Agreement. No event has
occurred or, to the best of the knowledge of the Company, is
alleged to have occurred, which constitutes or, with lapse of
time or giving of notice or both, would constitute such a default
or a basis for a claim of force majeure or other claim of
excusable delay or non-performance under the Merger Agreement by
the Company or any subsidiary of the Company or, to the best of
the knowledge of the Company, by Funtime or any stockholder of
Funtime. To the best of the knowledge of the Company, based upon
information provided to it in connection with the Merger, the
representations and warranties of Funtime and its stockholders,
and each of them, under the Merger Agreement are true and correct
in all material respects.
12. The Certificate will have been duly filed with the
Secretary of State of the State of Delaware prior to the Closing.
The Preferred Shares, the Dividend Shares and the Conversion
Shares, when issued, delivered and paid for in accordance with
the terms hereof and the Certificate, will be duly and validly
issued, fully paid and non-assessable and shall be free and clear
of all liens, claims and encumbrances. The Dividend Shares and
the Conversion Shares have been duly reserved for issuance by the
Company. There are no preemptive rights with respect to any
shares of the capital stock of the Company, including, without
limitation, the Shares or the Conversion Shares.
13. The execution, delivery and performance of this
Agreement, the Merger Agreement or the Senior Notes by the
Company (i) will not constitute a default under or conflict with
the Company's charter or bylaws or any agreement or other
instrument to which the Company or any Subsidiary is a party or
by which the Company or any Subsidiary, or any of their
respective assets, is bound, (ii) will not conflict with or
violate any order, judgment, decree, statute, ordinance or
regulation applicable to the Company or any Subsidiary and (iii)
do not require the consent of any person or entity, except as
disclosed in writing to the Subscriber, all of which will have
been obtained prior to the Closing Date.
14. Neither the Company nor anyone acting on its
behalf has directly or indirectly offered any securities for sale
to, or solicited any offer to buy any of the same from, anyone so
as to bring the offer, sale, issuance and/or delivery of the
Preferred Shares, the Dividend Shares or the Conversion Shares,
or any of them, within the registration requirements of the Act.
Assuming representations and warranties of the Purchasers
contained in this Agreement and the other Subscription Agreements
are true and correct, neither the offer, sale, issuance and/or
delivery of the Preferred Shares, the Dividend Shares or the
Conversion Shares, nor any of them, hereunder will result in any
contravention of any applicable federal or state securities laws,
and will not require any approval or consent of any governmental
authority, commission or agency (other than filings under
applicable state securities law required to be made by the
Company which the Company shall effectuate on a timely basis).
The representation, warranties and agreements of the
Company contained herein shall, as a condition to Closing on the
part of the Subscriber, be true and correct in all material
respects on and as of the Closing Date of the sale of the Shares
as if made on and as of such date and shall survive the execution
and delivery of this Agreement and the sale of the Shares, and
the Company shall have delivered to the Subscriber a certificate
to that effect, dated the Closing Date, executed by its Chairman,
President or one of its Vice Presidents.
VI. Registration Rights.
A. Demand Registration
1. If the Company shall receive at any time after
December 31, 1996 a written request from the holders of a
majority of the Conversion Shares (assuming for the purpose of
such request and the determination of such holders that all
Preferred Shares outstanding on the date of such request had been
converted into Conversion Shares) for registration with the
Securities and Exchange Commission ("SEC") under the Act of all
or part of such holders' Registrable Securities (as hereinafter
defined), within ten days thereafter, the Company shall give
written notice of such registration request to all holders of
record ("Holders") of Registrable Securities. All requests made
pursuant to this paragraph (a) shall specify the number of
Registrable Securities to be registered and shall also specify
the intended methods of disposition thereof; provided, however,
that if the Holders of a majority of the Registrable Securities
requested to be included in such registration request an
underwritten offering, the method of disposition shall be such an
offering. As used herein, the term "Registrable Securities"
shall mean (i) the Conversion Shares and (ii) any securities
issued or issuable with respect to the Conversion Shares by way
of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
other reorganization; provided, however, that a security shall
cease to be a Registrable Security when it shall no longer be a
"Restricted Security". "Restricted Security" shall mean any
security unless or until: (i) it has been registered under the
Act; (ii) it is distributed to the public pursuant to Rule 144
under the Act or is then capable of being sold by the Holder
thereof pursuant to Rule 144(k) (or any similar provisions then
in force); or (iii) it has otherwise been transferred and a new
certificate or other evidence of ownership for it not bearing a
restrictive legend pursuant to the Act and not subject to any
stop transfer order has been delivered by or on behalf of the
Company.
2. Following the receipt by the Company of the
notice referred to in Section 6(a) above, the Company shall
within 90 days prepare and file with the SEC a registration
statement under the Act (a "Registration Statement") and shall
use its reasonable good faith efforts to effect the registration
of the aggregate number of Registrable Securities designated in
such notice and in any written notice from any other Holder
received by the Company within 15 days following the delivery of
the Company's notice to all Holders referred to in Section 6(a),
all to the extent necessary to permit the disposition (in
accordance with the intended methods thereof) by the Holders of
Registrable Securities included in such Registration Statement.
The Company will use its best efforts to keep current the
prospectus included in such Registration Statement (a
"Prospectus") for the period reasonably necessary to effect the
sale of such Registrable Securities, which period shall not
exceed nine (9) months after the effective date of the
Registration Statement (or, if the Company is entitled to file
the Registration Statement on Form S-3, two years thereafter).
If the registration is being made in connection with an
underwritten offering, the managing underwriter shall be selected
by the holders of a majority of the Registrable Securities to be
included in such Registration Statement, and shall be reasonably
acceptable to the Company.
3. Subject to the provisions of paragraph (d)
below, the Holders of Registrable Securities shall be entitled to
two registrations pursuant to this Section 6.1; provided,
however, that the Company's obligation with respect to each such
demand shall be deemed satisfied only when a Registration
Statement covering all Registrable Securities specified in a
request for a registration under this Section 6.1, for sale in
accordance with the method of disposition specified in such
request, shall have become effective.
4. If (i) the Holders of a majority of the
Registrable Securities included in any Registration Statement
determine for any reason not to proceed with a registration
pursuant to this Section 6.1 at any time before the Registration
Statement has been declared effective by the SEC and (if such
Registration Statement has then been filed with the SEC or a
period of 30 days has elapsed since the date the Company has
received from such Holders a written request for registration
pursuant to Section 6.1(a)) or (ii) the Registration Statement,
which has been declared effective, relates to a firm commitment
underwritten public offering and the sale of the included
Registrable Securities to the underwriter does not occur for any
reason, and such Holders do not agree to bear their own expenses
incurred in connection therewith and to reimburse the Company for
the reasonable expenses incurred by it attributable to the
registration of such Registrable Securities, then such Holders
shall be deemed to have exercised one of their two rights to
require the Company to register Registrable Securities pursuant
to this Section 6.1.
5. If, prior to the time any written request for
registration is received by the Company pursuant to this Section
6.1, the Company by action of its board of directors or any duly
authorized committee thereof has determined to proceed with the
preparation and filing of a Registration Statement under the Act
in connection with the proposed offer and sale for cash of any of
its securities by it, such written request shall be deemed to
have been given pursuant to Section 6.2 rather than this Section
6.1, the Holders' rights with respect to such request shall be
governed by Section 6.2 and the Holders shall not be deemed to
have exercised their rights to require the Company to register
Registrable Securities pursuant to this Section 6.1.
6. The Company shall not have the right to
include any of its securities in any registration initiated under
this Section 6.1. The Holders acknowledge that, as of the
Closing, the holders (the "Prior Holders") of approximately
21,000,000 shares of Common Stock pursuant to (i) Subscription
Agreements dated October 1992 and October 1994 and (ii) a
Registration Rights Agreement, dated March 8, 1995 (collectively,
the "Prior Agreements") will have the right to include such
shares of Common Stock in a Registration Statement under Section
6.1 to the extent provided in the Prior Agreements. Other than
the Prior Holders, no securityholder of the Company shall be
entitled to include securities in a Registration Statement under
Section 6.1. The Prior Holders may not include shares of Common
Stock therein unless:
a. if any of the Registrable Securities
covered by such registration are to be sold in an underwritten
offering, the Prior Holders agree in writing to sell their
securities on the same terms and conditions as apply to the
Registrable Securities being sold; and
b. if any of the Registrable Securities
covered by such registration are to be sold in an underwritten
offering and the managing underwriters shall have advised the
Holders of Registrable Securities demanding such registration
that, in their opinion, the total number or dollar amount of the
securities requested to be included in such registration by the
Prior Holders, together with the Registrable Securities demanded
to be registered hereunder, exceeds the number of securities
which can be sold in such offering, the Company shall include in
such registration:
(1) first, all securities requested to
be included in such registration by the Holders of Registrable
Securities demanding such registration; and
(2) second, the number of such shares
of Common Stock requested to be included in such registration in
excess of the number of securities the holders of Registrable
Securities demanding such registration propose to sell which, in
the opinion of such underwriters, can be sold (allocated pro rata
among the Prior Holders on the basis of the number of shares
requested to be included therein by each such holder).
B. Piggyback Registration. 1. If the Company
proposes to register any shares of Common Stock under the Act
(other than in connection with a merger, consolidation or similar
plan of acquisition or pursuant to Forms S-4 or S-8 or comparable
or successor registration forms or pursuant to the Shelf
Registration as such term is defined in the Prior Agreements) it
will give written notice thereof at least 30 days prior to the
filing of each such Registration Statement to each of the
Holders. If any Holder notifies the Company in writing within 20
days after receipt of any such notice of its desire to include
Registrable Securities in the proposed Registration Statement,
the Company shall afford such Holder the opportunity to have its
Registrable Securities registered pursuant to such Registration
Statement.
2. Notwithstanding the foregoing, if such
Registration Statement relates to an underwritten offering, the
Company shall not be required under this Section 6.2 to include
any Registrable Securities of any Holder who does not accept the
terms of the underwriting as agreed to by the Company (or, in the
case of a secondary registration, the securityholders initiating
such registration) and the underwriters selected by the Company
or such securityholders, and then only in such quantity as will
not (in the opinion of such underwriters) adversely affect the
success of the offering by the Company or such securityholders.
If the total amount of securities (including Registrable
Securities) to be included in such Registration Statement exceeds
the amount that the underwriters reasonably believe compatible
with the success of the offering, then the Company shall be
required to include in the offering:
A. If the registration is a primary
registration on behalf of the Company:
(i) first, all shares of Common Stock
the Company proposes to sell; and
(ii) second, the number of
Registrable Securities and such other shares of Common Stock
requested to be included in such registration in excess of the
shares the Company proposes to sell which, in the opinion of such
underwriter, can be sold (allocated pro rata among the Holders
and the holders of such other shares of Common Stock on the basis
of the number of securities requested to be included therein by
each such Holder and holder).
B. If the registration is a secondary
registration on behalf of holders of Common Stock:
(i) first, all shares of Common Stock
requested to be included in such registration by the
securityholders initiating the registration; and
(ii) second, the number of
Registrable Securities and such other shares of Common Stock
requested to be included in such registration in excess of the
shares such initiating holders propose to sell which, in the
opinion of such underwriters, can be sold (allocated pro rata
among the Holders and the holders of such other shares of Common
Stock on the basis of the number of securities requested to be
included therein by each such Holder and holder).
3. Notwithstanding any provision of this Section
6, the Company shall have the right with respect to any primary
registration on its behalf at any time after it shall have given
written notice pursuant to this Section 6.2 (irrespective of
whether a written request for inclusion of any Registrable
Securities shall have been made) to elect not to file any such
proposed Registration Statement, or to withdraw the same after
the filing but prior to the effective date thereof.
C. Holdback Agreements. 1. Each Holder of
Registrable Securities agrees, if requested by the managing
underwriters of any Registration Statement filed pursuant to
Section 6.1 or 6.2 or any primary Registration Statement filed by
the Company on its behalf, not to effect any public sale or
distribution of securities of the Company of the same class as
the securities included in such Registration Statement, including
a sale pursuant to Rule 144 under the Act (except as part of such
underwritten registration) 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 the Company or the managing underwriters.
2. The Company agrees:
a. at the request of the managing
underwriters of each underwritten offering made pursuant to a
Registration Statement filed under Section 6.1 hereof, not to
effect any public or private sale or distribution of its equity
securities, or any securities convertible into or exchangeable or
exercisable for such equity securities, including a sale pursuant
to Regulation D under the Act, during the ten-day period prior to
and during the 90-day period beginning on, the closing date of
such underwritten offering, without the consent of the managing
underwriters, to the extent the Company is timely notified in
writing by the managing underwriters (except as part of such
underwritten registration or pursuant to registrations on Form S-
4 or S-8 or any successor form to such Forms); and
b. at the request of the managing
underwriters, to use best efforts to cause each officer and
director of the Company who is a holder of its equity securities,
or any securities convertible into or exchangeable or exercisable
for such equity securities, to agree not to effect any public
sale or distribution of any such securities during such period,
including a sale pursuant to Rule 144 under the Act (except as
part of such underwritten registration, if permitted, or with the
consent of the managing underwriter of such underwritten
offering).
D. Registration Procedures. In connection with any
registration of Registrable Securities under Section 6.1 or 6.2
the Company agrees as follows:
1. before filing a Registration Statement or a
Prospectus or any amendments or supplements thereto (excluding
documents incorporated by reference), furnish to the Holders and
the underwriters, if any, copies of all such documents proposed
to be filed, and the Company shall not file any Registration
Statement or amendment or supplement thereto or Prospectus to
which the holders of a majority of the Registrable Securities
covered in such Registration Statement or the underwriters, if
any, shall reasonably object;
2. in the case of a registration pursuant to
Section 6.1, (i) prepare and file with the SEC such amendments or
supplements to the Prospectus and such post-effective amendments
to the Registration Statement as may be necessary to keep the
Prospectus current for the period set forth in Section 6.1(b),
and (ii) otherwise comply with the provisions of the Act
applicable to it in connection with the offer and sale of the
Registrable Securities pursuant to the Registration Statement
during the period referred to in Section 6.1(b) in accordance
with the intended methods of disposition by the Holders set forth
in such Registration Statement;
3. notify the Holders of Registrable Securities
being registered and the managing underwriters, if any, promptly,
and (if requested by any such person) confirm such advice in
writing (1) when the Registration Statement, the Prospectus or
any supplement or amendment thereto has been filed, and, with
respect to the 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
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 Registration Statement or the
initiation of any proceedings for that purpose, (4) if at any
time the representations and warranties of the Company
contemplated by Section (j) below cease to be true and correct,
(5) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (6) of the
happening of any event which makes any statement made in the
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 Registration
Statement, the Prospectus or any document incorporated therein by
reference in order to make the statements therein not misleading
in any material respect;
4. use reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the
Registration Statement at the earliest possible moment;
5. if requested by the managing underwriters or
the Holders of a majority of the Registrable Securities being
registered, incorporate in the Registration Statement, the
Prospectus or any supplement or amendment thereto such
information as the managing underwriters or such Holders agree
should be included therein relating to the distribution of the
Registrable Securities, including, without limitation, with
respect to the number of Registrable Securities being sold to
such underwriters, the purchase price being paid therefor by such
underwriters and any other terms of the underwritten offering of
the Registrable Securities to be sold in such offering; and make
all required filings of any such Registration Statement,
Prospectus, amendment or supplement as soon as practicable
following the notification of the matters to be incorporated
therein;
6. furnish to each Holder of the Registrable
Securities being registered and each managing underwriter,
without charge, at least one signed copy of the Registration
Statement and any amendment thereto, including financial
statements and schedules and all documents incorporated therein
by reference;
7. deliver to each Holder of Registrable
Securities being registered and the underwriters, if any, without
charge, as many copies of the Prospectus and any amendment or
supplement thereto as such persons may reasonably request; the
Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the Holders and the underwriters,
if any, in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment
or supplement thereto;
8. prior to any public offering of Registrable
Securities, use reasonable efforts to register or qualify, and to
cooperate with the Holders, the underwriters, if any, and their
respective counsel in connection with the registration or
qualification of, such Registrable Securities for offer and sale
under the securities or blue sky of such jurisdictions as any
such Holder or underwriter reasonably requests in writing;
provided that the Company 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;
9. upon the occurrence of any event contemplated
by Section (c)(6) above, prepare a post-effective amendment to
the 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 Registrable
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;
10. enter into such agreements (including an
underwriting agreement) in order to expedite or facilitate the
disposition of the Registrable Securities and in such connection,
whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration
(1) make such representations and warranties to the Holders of
Registrable Securities being registered and the underwriters, if
any, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings and
confirm the accuracy of the same if and when customarily
requested; (2) obtain opinions of counsel to the Company and
updates thereof addressed to each such Holders and the
underwriters, if any, covering the matters customary in
underwritten primary offerings; (3) obtain "cold comfort" letters
and updates thereof from the Company's independent certified
public accountants addressed to such Holders and the
underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with primary
underwritten offerings; (4) if an underwriting agreement is
entered into, the same shall set forth indemnification and
contribution provisions and procedures substantially equivalent
to those contained in Section 6.6 hereof with respect to all
parties to be indemnified pursuant to said Section; and
11. use its best efforts to list the Registrable
Securities on the securities exchange on which the Company's
Common Stock is then listed, if any.
The Company may require each Holder to furnish to the
Company such information regarding the distribution of the
Registrable Securities as the Company may from time to time
reasonably request in writing.
Each Holder agrees by acquisition of Preferred Shares
or Registrable Securities that, upon receipt of any notice from
the Company of the happening of any event of the kind described
in Section 6.4(i) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the
Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section
6.4(i) hereof, or until it is advised in writing 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, each Holder will deliver to the Company all
copies, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable
Securities at the time of receipt of such notice.
E. Registration Expenses.
Except as otherwise provided below, all expenses
incident to the Company's performance of or compliance with this
Section 6, 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
(including reasonable fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the
Registrable Securities under the laws of such jurisdictions as
the managing underwriters may designate), printing expenses,
mailing and delivery expenses, and fees and disbursements of
counsel for the Company, and of all independent certified public
accountants (including the expenses of any "cold comfort" letters
required by or incident to such performance) will be borne by the
Company. The Company shall not be liable for, and the Holders
shall bear, any discounts, commissions, selling fees of or other
payments to, underwriters, selling brokers or similar persons
relating to the distribution of the Registrable Securities and
the fees and expenses of counsel for such Holder. Except as
provided above, any underwriter shall bear the fees and expenses
of its counsel. The Company shall not be liable for any stock
transfer taxes in connection with any resale of Registrable
Securities by a Holder.
F. Indemnification.
1. The Company will indemnify and hold each
Holder, each officer, director or partner thereof, each
underwriter involved in the offering of Registrable Securities
pursuant to a Registration Statement, and each person who
controls any such Holder or any such underwriter within the
meaning of Section 15 of the Act or Section 20 of the Securities
Exchange Act of 1934 (the "1934 Act") (each such Holder, each
such underwriter 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 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
the Company by such Indemnified Person expressly for use therein.
Notwithstanding the foregoing, the Company shall not be obligated
to so indemnify any such Holder, underwriter or controlling
person with respect to any such loss, claim, damage, liability or
expense arising out of the failure by such Holder or underwriter
to comply with the prospectus delivery requirements under the Act
and the rules and regulations promulgated thereunder.
2. 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 the Company, such Indemnified Person
shall promptly notify the Company in writing, and the Company
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) the Company has
agreed to pay such fees and expenses; or (ii) the Company 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 the
Company, 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 the
Company (in which case, if such Indemnified Person notifies the
Company in writing that it elects to employ separate counsel at
the expense of the Company, the Company will not have the right
to assume the defense of such action or proceeding on behalf of
such Indemnified Person); provided, however, that the Company
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. The Company
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, the Company agrees to indemnify
and hold harmless such Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. If
the Company 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 the Company shall be responsible to indemnify only the lesser
of the amount of the settlement accepted by the Company or the
cost of the final disposition of the claim.
3. Each Holder agrees to indemnify and hold
harmless the Company, its directors and officers, and each
person, if any, who controls the Company within the meaning of
either Section 15 of the Act or Section 20 of the 1934 Act, to
the same extent as the indemnity from the Company to each
Indemnified Person set forth in Section 6.6(a), but only (i) with
respect to 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 in writing by such Holder
or such person to the Company expressly for use in the
Registration Statement or the Prospectus, or any amendment or
supplement thereto and (ii) with respect to any failure by such
Holder to comply with the prospectus delivery requirements under
the Act and the rules and regulations thereunder. In case any
action or proceeding shall be brought against the Company 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 6.6(c), such Holder shall have the
rights and duties given to the Company and each of the Company 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 6.6(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 Registrable Securities giving rise to such
indemnification obligations.
4. If the indemnification provided for under
Section 6.6(a) or Section 6.6(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 the Company, on
the one hand, and the Holders, on the other, of the transactions
contemplated by the Registration Statement, the relative fault of
the Company, 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 the Company, 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 the Company 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
Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
G. Assignment of Registration Rights. The rights to
cause the Company to register Registrable Securities pursuant to
this Section 6 may be assigned by a Holder to a transferee or
assignee of the Preferred Shares or the Registrable Securities,
or any of them; provided that (a) the Company is furnished with
written notice of the name and address of such transferee or
assignee and the securities with respect to which such
registration rights are being assigned; and (b) immediately
following such transfer, such securities shall constitute
Restricted Securities.
H. Amendment of Registration Rights. Any provision
of this Section 6 may be amended and the observance thereof may
be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the written
consent of the Company and the Holders of a majority of the
Registrable Securities (assuming for this purpose all Preferred
Shares then outstanding had been converted). Any amendment or
waiver effected in accordance with this Section 6.8 shall be
binding upon each holder of any Preferred Shares, each Holder of
Registrable Securities and the Company.
I. Rule 144. The Company covenants that it shall
file the reports and documents required to be filed by it under
the Act and the 34 Act and the rules and regulations adopted by
the SEC thereunder to the extent required from time to time to
enable Holders to sell Registrable Securities without
registration under the Act pursuant to Rule 144 thereunder, as
such rule may be amended from time to time, or any successor rule
or regulation hereafter adopted by the SEC.
J. Termination of Registration Rights. The
provisions of this Section 6 (other than Section 6.6 with respect
to any then pending claim for indemnification thereunder), and
the rights and obligations of the parties under such provisions,
will terminate on the earlier of (i) the fifth anniversary of the
Closing or (ii) in the case of a Holder's rights under Section
6.1, the date on which the number of Registrable Securities shall
be less than 500,000 Conversion Shares, which number shall be
proportionately adjusted in the event of any stock splits, stock
dividends, combinations or recapitalizations involving the Common
Stock.
VII. Other Agreements of Company. Promptly following the
filing thereof with the SEC, the Company shall deliver to the
Subscriber a copy of each of the Company's reports, documents and
other filings made pursuant to Section 13 or 15(d) of the 34 Act.
VIII. Miscellaneous.
1. Cooperation. Subject to the terms and conditions
herein provided, each of the parties hereto shall use reasonable
efforts to take, or cause to be taken, such action, to execute
and deliver, or cause to be executed and delivered, such
additional documents and instruments and to do, or cause to be
done, all things necessary, proper or advisable under the
provisions of this Agreement and under applicable law to
consummate and make effective the transactions contemplated
hereby.
2. Notices. Any notice or other communication
required or permitted hereunder shall be in writing and shall be
delivered personally, telegraphed, sent by facsimile transmission
or sent by mail, postage prepaid. Any such notice shall be
deemed given when so delivered personally, telegraphed or sent by
facsimile transmission or, if mailed by certified or registered
mail, three days after the date of deposit in the mails, as
follows:
if to the Company, one copy to:
Premier Parks Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxx Marks & Xxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
If to the Subscriber, one copy to the address indicated
on the signature page hereof.
Any party, by notice given in accordance with this
Section to the other party, may designate another address or
person for receipt of notices hereunder. Notices by a party may
be given by counsel to such party.
3. Entire Agreement. This Agreement constitutes
the complete understanding between the parties with respect to
the subject matter hereof and supersedes all prior agreements or
undertakings, written or oral, and all contemporaneous oral
agreements or understandings with respect to such subject matter.
4. Amendments. Except as otherwise provided in
Section 6.8, this Agreement may not be amended nor shall any
waiver, change, modification, consent or discharge be effected
except by an instrument in writing executed by or on behalf of
the party against whom enforcement of any amendment, waiver,
change, modification, consent or discharge is sought.
5. No Waiver. Any failure or delay on the part
of a party in exercising any power or right hereunder shall not
operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power preclude any other or further
exercise thereof or the exercise of any other right or power
hereunder or otherwise available in law or in equity.
6. Severability. If any provisions of this
Agreement for any reason shall be held to be illegal, invalid, or
unenforceable, such illegality shall not effect any other
provision of this Agreement, but this Agreement shall be
construed as if such illegal, invalid or unenforceable provision
had never been herein.
7. Governing Law. This Agreement shall be
governed and construed in accordance with the laws of the State
of New York applicable to agreements made and to be performed
entirely within such State.
8. Binding Effect. This Agreement and all of
its provisions, rights and obligations shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective successors. Except as provided in Section 6.7, this
Agreement may not be assigned by either party without the express
written consent of the other and any purported assignment, unless
so consented to, shall be void and without effect. Except as
provided in Section 6.7, nothing herein express or implied is
intended or shall be construed to confer upon or to give anyone
other than the parties hereto and their respective
representatives and successors any rights or benefits under or by
reason of this Agreement.
9. Counterparts. The Agreement may be executed
in any number of counterparts, each of which shall be deemed to
be an original as against any party whose signature appears
thereon, and all of which shall together constitute one and the
same instrument. This Agreement shall become binding when one or
more counterparts hereof, individually or taken together, shall
bear the signatures of all of the parties reflected hereon as the
signatories.
10. Captions. The section and other headings
contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the Subscriber hereto has executed this
Agreement as of the 27th day of July, 1995.
Number of Shares: 125,000
-----------------------
Aggregate Purchase Price: $ 12,500,000
--------------------
Hanseatic Corporation
----------------------------------------
Name of Subscriber [Typed or Printed]
s/Xxxx X. Xxxxxxxxx, Treasurer
----------------------------------------
Signature(s) and title, if applicable
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
----------------------------
Xxx Xxxx, Xxx Xxxx 00000
---------------------------------------
Telecopier Number: (000) 000-0000
---------------------
Wire Transfer Information:
-----------------
Name of Transferring Bank:
----------------
Name of Account:
------------------------
Account Number:
------------------------
Accepted as of August 14, 1995
PREMIER PARKS INC.
By: s/Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
Chairman of the Board
EXHIBIT A
[Form of Opinion of Xxxx Marks & Xxxxx]
(a) Each of the Company and Tierco Maryland, Inc., Frontier
City Properties, Inc., Tierco Water Park, Inc. and Frontier City
Partners Limited Partnership (individually, a "Subsidiary" and
collectively, the "Subsidiaries") has been duly organized and is
validly existing as a corporation or other business entity in
good standing under the laws of its jurisdiction of organization.
Each of the Company and its Subsidiaries is duly qualified and in
good standing in each jurisdiction in which the character or
location of its properties or the nature or conduct of its
business makes such qualification necessary, except where the
failure to be so qualified or in good standing would not, in the
aggregate, have a material adverse effect on the financial
condition of the Company and its Subsidiaries, taken as a whole.
Each of the Company and its Subsidiaries has all requisite
corporate power and authority to own, lease and operate its
properties and conduct its business as now being conducted.
(b) To the knowledge of such counsel, neither the Company
nor any Subsidiary is in violation of its charter or by-laws (or
other organizational documents) or in default in any material
respect under any indenture, mortgage, deed of trust, note, bank
loan or credit agreement, or any other agreement or instrument
known to such counsel and which is material to the Company and
its Subsidiaries, taken as a whole, to which the Company or any
Subsidiary is a party or by which they are bound. To the
knowledge of such counsel, each of the Company and its
Subsidiaries is in compliance with all federal and New York State
laws, rules, regulations and all judgments, orders and decrees
known to such counsel of any government or governmental agency or
instrumentality applicable to its business and properties, except
where the failure to so comply would not, in the aggregate, have
a material adverse effect upon the financial condition of the
Company and its Subsidiaries, taken as a whole.
(c) All of the outstanding shares of Common Stock have been
duly authorized and are validly issued and outstanding and are
fully paid and non-assessable, free of preemptive rights, and
prior to the Placement, the capitalization of the Company was as
set forth in the Memorandum.
(d) To the knowledge of such counsel, (i) all of the issued
and outstanding capital stock (or other equity interest) of each
Subsidiary has been duly and validly issued and is fully paid and
non-assessable and is owned directly or indirectly by the Company
and (ii) there are no outstanding warrants or options to acquire,
or instruments convertible into or exchangeable for, any shares
of capital stock (or other equity interests) of any Subsidiary.
A\A To the knowledge of such counsel, there is no action,
suit or proceeding before or by any court or governmental agency
now pending against the Company or any Subsidiary that would
result in a material adverse change in the condition (financial
or otherwise) or earnings of the Company and its Subsidiaries,
taken as a whole, or that would materially and adversely affect
the consummation of the transactions contemplated by the Merger
Agreement or Subscription Agreements.
(f) The Company has full corporate power and authority to
enter into the Subscription Agreements and to issue and sell the
Preferred Shares on the terms and conditions set forth therein.
The execution and delivery of the Subscription Agreements, the
Merger Agreement, the Senior Notes and the consummation of the
transactions contemplated thereby have been duly and validly
authorized and approved by all necessary corporate action on the
part of the Company. The Subscription Agreements, the Merger
Agreement and the Senior Notes have been duly executed and
delivered and constitute the valid and binding obligations of the
Company enforceable in accordance with their respective terms,
except as such obligations and their enforceability may be
limited by applicable bankruptcy and other similar laws affecting
the enforcement of creditors' rights generally, except that the
availability of equitable remedies is subject to the discretion
of the court before which any proceeding therefor may be brought
(whether at law or in equity) and except that the rights to
indemnification provided for therein are limited by federal and
state securities laws.
(g) The Certificate has been duly filed with the Secretary
of State of the State of Delaware. The Preferred Shares, the
Dividend Shares and the Conversion Shares, when issued, delivered
and paid for in accordance with the terms of the Subscription
Agreements and the Certificate, will be duly and validly issued,
fully paid and non-assessable and shall be free and clear of all
liens, claims and encumbrances. The Dividend Shares and the
Conversion Shares have been duly reserved for issuance by the
Company. Upon the filing of a certificate of merger in the
offices of the Secretary of State of the State of Ohio in
evidence of the terms of the Merger Agreement, the merger
pursuant to the Merger Agreement shall become effective.
(h) The execution, delivery and performance of the
Subscription Agreements, the Merger Agreement or the Senior Notes
by the Company (i) will not constitute a default under or
conflict with the Company's charter or bylaws or any agreement or
other instrument known to such counsel to which the Company or
any Subsidiary is a party or by which the Company or any
Subsidiary is bound, (ii) will not conflict with or violate any
order, judgment or decree known to such counsel applicable to the
Company or any Subsidiary and (iii) to the knowledge of such
counsel, do not require the consent of any person or entity,
other than those that will have been obtained prior to the
Closing Date.
(i) Assuming the accuracy of the representations and
warranties of the Subscribers contained in Section 4 of the
Subscription Agreements, the issuance and sale of the Preferred
Shares is exempt from the registration requirements of the Act.
EXHIBIT B
Under Regulation D promulgated under the Securities Act of
1933, as amended, an "accredited investor" is:
(a) A natural person who had individual income of more than
$200,000 in each of the most recent two years, or joint
income with that person's spouse in excess of $300,000 in
each of the most recent two years and who reasonably expects
to reach that same income level for the current year. For
this purpose, "individual income" means adjusted gross
income, as reported for federal income tax purposes, less
any income attributable to a spouse or to property owned by
a spouse, (A) increased by the individuals share (and not a
spouse's share) of: (i) the amount of any tax exempt
interest income received, (ii) amounts contributed to an XXX
or Xxxxx retirement plan, (iii) alimony paid, and (iv) the
excluded portion of any long-term capital gains, and (B)
adjusted, plus or minus, for any non-cash loss or gain,
respectively, reported for federal income;
(b) A natural person whose individual net worth is in excess of
$1,000,000. For this purpose, "net worth" means the excess
of total assets at fair market value, including home and
personal property, over total liabilities, provided,
however, for the purpose of determining a person's net
worth, the principal residence owned by an individual shall
be valued at cost, including the cost of improvements, net
of current encumbrances upon the property or valued on the
basis of a written appraisal used by an institutional lender
making a loan secured by the property. For the purposes of
this provision, "institutional lender" means a bank, savings
and loan association, industrial loan company, credit union,
personal property broker or a company whose principal
business is as a lender upon loans secured by real property
and which has such loans receivable in the amount of
$2,000,000 or more. Any person relying on the appraisal
value of a principal residence must deliver to the Company,
at or prior to the date of execution hereof, a copy of such
appraisal;
(c) A trust, with total assets in excess of $5,000,000, which is
not formed for the purpose of acquiring the Shares and whose
purchase is directed by a person who has such knowledge and
experience in financial business matters that such person is
capable of evaluating the risks and merits of an investment
in the Shares;
(d) A corporation, a partnership, an organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended, or a Massachusetts or similar business trust, not
formed for the specific purpose of acquiring the Shares,
with total assets in excess of $5,000,000;
(e) A bank as defined in Section 3(a)(2) of the Act or a savings
and loan association or other institution as defined in Sec-
tion 3(a)(5)(A) of the Act, whether acting in its individual
or fiduciary capacity; a broker or dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934; an insurance company as defined in Section 2(13) of
the Act; an investment company registered under the
Investment Company Act of 1940 or a business development
company as defined in Section 2(a)(48) of the Investment
Company Act of 1940; a small business investment company
licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act
of 1958; a plan established and maintained by a state, its
political subdivisions, or an agency or instrumentality of a
state or its political subdivisions, for the benefit of its
employees, if such plan has total assets in excess of
$5,000,000; or an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of
1974, if the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of the Employee
Retirement Income Security Act of 1974, which is either a
bank, savings and loan association, insurance company, or
registered adviser, or if the employee benefit plan has
total assets in excess of $5,000,000 or, if the employee
benefit plan is a self-directed plan, the invested decision
is made solely by persons who are accredited investors;
(f) A private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940; or
(g) An entity in which all of the equity owners meet the
requirements of at least one of the above subparagraphs for
accredited investors.
