Exhibit 1(b)
600,000 SHARES
PREMIER PARKS INC.
COMMON STOCK
INTERNATIONAL UNDERWRITING AGREEMENT
, 1997
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
▇▇▇▇▇▇ ▇▇▇▇ LLC
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
As Lead Managers of the several
International Managers named in Schedule 1,
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Premier Parks Inc., a Delaware corporation (the "Company"), proposes
to sell 600,000 shares (the "Firm Stock") of the Company's Common Stock, par
value $.05 per share (the "Common Stock") to the several International Managers
named in Schedule 1 hereto (the "International Managers"). In addition, the
Company proposes to grant to the International Managers an option to purchase up
to an additional 90,000 shares of the Common Stock on the terms and for the
purposes set forth in Section 2 (the "Option Stock"). The Firm Stock and the
Option Stock, if purchased, are hereinafter collectively called the "Stock".
This is to confirm the agreement concerning the purchase of the Stock from the
Company by the International Managers.
It is understood by all parties that the Company is currently entering
into an agreement dated the date hereof (the "U.S. Underwriting Agreement")
providing for the sale by the Company of 3,910,000 shares of Common Stock
(including the over-allotment option thereunder) (the "U.S. Stock") through
arrangements with certain underwriters in the United States (the "U.S.
Underwriters"), for whom ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇ ▇▇▇▇ LLC and ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. are acting as representatives (the "Representatives"). The International
Managers and the U.S. Underwriters simultaneously are entering into an agreement
between the international and U.S.
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underwriting syndicates (the "Agreement Between U.S. Underwriters and
International Managers") which provides for, among other things, the transfer of
shares of Common Stock between the two syndicates.
Two forms of prospectus are to be used in connection with the
Offering, one relating to the Stock and the other relating to the U.S. Stock.
The latter form of prospectus will be identical to the former except for certain
substitute pages as included in the registration statement and amendments
thereto referred to below. Except as used in Sections 2, 3, 4, 9, and 10
herein, and except as the context may otherwise require, references herein to
the Stock shall include all the shares which may be sold pursuant to either this
Agreement or the U.S. Underwriting Agreement, and references herein to any
prospectus whether in preliminary or final form, and whether as amended or
supplemented, shall include both the international and the U.S. versions
thereof. As used in this Agreement, the term "Underwriter" includes
International Managers and U.S. Underwriters.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-2 (file number 333-16573), and
amendments thereto, with respect to the Stock has (i) been prepared by the
Company in conformity in all material respects with the requirements of the
United States Securities Act of 1933 (the "Securities Act") and the rules
and regulations (the "Rule and Regulations") of the United States
Securities and Exchange Commission (the "Commission") thereunder, (ii) been
filed with the Commission under the Securities Act and (iii) become
effective under the Securities Act. Copies of such registration statement
and amendments thereto have been delivered by the Company to you as the
lead managers (the "Lead Managers") of the International Managers. Upon
your written request, but not without your agreement, the Company will also
file a Rule 462(b) Registration Statement in accordance with Rule 462(b).
As used in this Agreement, "Effective Time" means the date and the time as
of which such registration statement, the most recent post-effective
amendment thereto, if any, or any Rule 462(b) Registration Statement became
or become effective; "Effective Date" means the date of the Effective Time;
"Preliminary Prospectus" means each prospectus included in such
registration statement, or amendments thereof, before it became effective
under the Securities Act and any prospectus filed with the Commission by
the Company with the consent of the Lead Managers pursuant to Rule 424(a)
of the Rules and Regulations; "Registration Statement" means such
registration statement, as amended at the Effective Time, including any
documents incorporated by reference therein at such time and all
information contained in
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the final prospectus filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations in accordance with Section 5(a) hereof and deemed
to be a part of the registration statement as of the Effective Time
pursuant to paragraph (b) of Rule 430A of the Rules and Regulations and, in
the event any Rule 462(b) Registration Statement becomes effective prior to
the First Delivery Date (as hereinafter defined), also means such
registration statement as so amended, unless the context otherwise
requires; "Prospectus" means such final prospectus, as first filed with the
Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the Rules and
Regulations; and "Rule 462(b) Registration Statement" means the
registration statement and any amendments thereto filed pursuant to
Rule 462(b) of the Rules and Regulations relating to the offering covered
by the initial Registration Statement (file number 333-16573). Reference
made herein to any Preliminary Prospectus or to the Prospectus shall be
deemed to refer to and include any documents incorporated by reference
therein pursuant to Item 12 of Form S-2 under the Securities Act, as of the
date of such Preliminary Prospectus or the Prospectus, as the case may be.
The Commission has not issued any order preventing or suspending the use of
any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus, any
further amendments or supplements to the Registration Statement or the
Prospectus and any Rule 462(b) Registration Statement will, when they
become effective or are filed with the Commission, as the case may be,
conform in all material respects to the requirements of the Securities Act
and the Rules and Regulations and do not and will not, as of the applicable
effective date (as to the Registration Statement and any amendment thereto)
and as of the applicable filing date (as to the Prospectus and any
amendment or supplement thereto) contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Company through
the Lead Managers by or on behalf of any International Manager specifically
for inclusion therein.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Securities Exchange Act of 1934 (the "Exchange
Act") and the rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
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(d) The Company and each of the Subsidiaries (as defined in Section
15) that is a corporation (a "corporate Subsidiary", and collectively with
all other such subsidiaries, the "corporate Subsidiaries") have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation; Frontier
City Partners, Limited Partnership, an Oklahoma limited partnership
("Frontier City Partners"), is validly existing as a limited partnership in
good standing under the laws of Oklahoma; the Company, the corporate
Subsidiaries and Frontier City Partners are duly qualified to do business
and are in good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the conduct of
their respective businesses requires such qualification, except where the
failure to so qualify would not have in the aggregate a material adverse
effect on the consolidated financial position, stockholders' equity (or
partners' equity, as applicable), results of operations, business or
prospects of the Company and the Subsidiaries taken as a whole (a "Material
Adverse Effect") and have all corporate or partnership power and authority,
as the case may be, necessary to own or hold their respective properties
and to conduct the businesses in which they are engaged; none of the
subsidiaries (as defined in Rule 405 of the Rules and Regulations) of the
Company (other than the Subsidiaries) is a "significant subsidiary", as
such term is defined in Rule 405 of the Rules and Regulations; and the
assets, liabilities and operations of such other subsidiaries are
immaterial to the assets, liabilities, operations and prospects of the
Company and the Subsidiaries taken as a whole.
(e) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; all of the issued shares of capital stock of each corporate
Subsidiary of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and, except for Stuart Amusement
Company ("Stuart"), a Massachusetts corporation and owner of Riverside Park
("Riverside Park"), which the Company has agreed to acquire pursuant to the
Stock Purchase Agreement by and among the Company, Stuart, The ▇▇▇▇▇▇▇
Family Limited Partnership and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. dated December 4,
1996, are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims and 100% of the partnership
interest in Frontier City Partners is held directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims
except, in each case, for the liens and encumbrances of the lenders under
the Credit Agreement between the Company and ▇▇▇▇▇▇ Commercial Paper Inc.
dated October 30, 1996 (the "New Credit Facility").
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(f) The unissued shares of the Stock to be issued and sold by the
Company to the International Managers hereunder and to the U.S.
Underwriters under the U.S. Underwriting Agreement have been duly and
validly authorized and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued, fully paid and
non-assessable.
(g) This Agreement and the U.S. Underwriting Agreement have been duly
authorized, executed and delivered by the Company.
(h) The execution, delivery and performance of this Agreement and the
U.S. Underwriting Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which the Company or any of the
Subsidiaries is bound or to which any of the property or assets of the
Company or any of the Subsidiaries is subject, nor will such actions result
in any violation of the provisions of the charter or by-laws of the Company
or any of the Subsidiaries or, assuming that all consents, approvals,
authorizations, registrations or qualifications as may be required under
the Exchange Act and applicable state and foreign securities laws in
connection with the purchase and distribution of the Stock by the
International Managers and the U.S. Underwriters are obtained, any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of the Subsidiaries or any
of their properties or assets except, in each case, breaches, violations or
defaults which, in the aggregate, are not reasonably likely to have a
Material Adverse Effect; and except for the registration of the Stock under
the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act
and applicable state and foreign securities laws in connection with the
purchase and distribution of the Stock by the International Managers and
the U.S. Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or body
is required for the execution, delivery and performance of this Agreement
or the U.S. Underwriting Agreement by the Company and the consummation of
the transactions contemplated hereby and thereby.
(i) Except as disclosed in the Registration Statement, all contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company owned or to be
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owned by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement have
been amended so that such rights will not take effect prior to May 29,
1997.
(j) The Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of the Prospectus, including
any sales pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act, other than [ ] shares issued pursuant to (i) the
Company's acquisition of substantially all of the assets of Storytown USA,
Inc. and Fantasy Rides Corporation used in the operation of The Great
Escape and Splashwater Kingdom ("The Great Escape") on December 4, 1996,
[(ii) shares issuable pursuant to the Company's acquisition of Stuart], or
(iii) employee benefit plans, qualified stock options plans or other
employee compensation plans or pursuant to outstanding options, rights or
warrants, which are disclosed in the Prospectus.
(k) Neither the Company nor any of the Subsidiaries has sustained,
since the date of the latest audited financial statements included in the
Prospectus, any loss or interference with its business from fire,
explosion, flood, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus,
except losses or interferences which will not, in the aggregate, have a
Material Adverse Effect; and, since such date, there has not been any
change in the capital stock or long-term debt of the Company or any of the
Subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity (or partners' equity,
as applicable) or results of operations of the Company and its
Subsidiaries, otherwise than as set forth or contemplated in the
Prospectus.
(l) The historical financial statements (including the related notes
and supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby at the
dates and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved. The pro forma financial statements
included in the Prospectus have been prepared on a basis consistent with
such historical financial statements, except for the pro forma adjustments
specified therein, and comply in all material respects with Regulation S-X
under the Securities Act, and the pro form adjustments have been properly
applied to historical amounts in the compilation of such pro forma
financial statements.
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(m) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company, The Great Escape and ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ LLP,
who have certified certain financial statements of Funtime Parks, Inc.
("Funtime") and Elitch Gardens Company ("Elitch Gardens") and ▇▇▇▇▇▇ &
Company, who have certified certain financial statements of FRE, Inc.
(Family Recreational Enterprises, Inc.) ("FRE") and Concord Entertainment
Company ("Concord"), whose reports appear in the Prospectus and who have
each delivered the respective initial letters referred to in Section 7(f)
hereof, are independent public accountants as required by the Securities
Act and the Rules and Regulations.
(n) The Company and each of the Subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except for liens arising under the New
Credit Facility and such liens, encumbrances and defects as are described
in the Prospectus or such as would not have a Material Adverse Effect; and
all real property and buildings held under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable
leases, with such exceptions as would not have a Material Adverse Effect.
(o) The Company and each of the Subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as the Company has
reasonably concluded, based on its experience, is adequate for the conduct
of their respective businesses and the value of their respective properties
and as is customary for companies engaged in similar businesses in similar
industries.
(p) The Company and each of the Subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service ▇▇▇▇
registrations, copyrights and licenses necessary for the conduct of their
respective businesses as presently conducted and have no reason to believe
that the conduct of their respective businesses will conflict with, and
have not received any notice of any claim of conflict with, any such rights
of others.
(q) There are no legal or governmental proceedings pending to which
the Company or any of the Subsidiaries is a party or of which any property
or assets of the Company or any of the Subsidiaries is the subject which,
if determined adversely to the Company or any of the Subsidiaries, might
have a Material Adverse Effect or are otherwise required to be disclosed in
the Prospectus; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
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(r) The conditions for use of Form S-2, as set forth in the General
Instructions thereto, have been satisfied.
(s) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(t) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is required
to be described in the Prospectus which is not so described.
(u) No labor disturbance by the employees of the Company exists or,
to the knowledge of the Company, is imminent which might be expected to
have a Material Adverse Effect.
(v) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which might reasonably be expected to cause
the loss of such qualification.
(w) The Company and each of the Subsidiaries are in compliance in all
material respects with (i) all presently applicable provisions of the
Occupational Safety and Health Act of 1970, as amended, including all
applicable regulations thereunder and (ii) all presently applicable
material state and local laws and regulations relating to the safety of its
theme park and water park operations.
(x) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof other
than those
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filings being contested in good faith, and has paid all taxes of which it
has notice are due thereon, other than those being contested in good faith
and for which adequate reserves have been provided or those currently
payable without penalty or interest and no tax deficiency has been
determined adversely to the Company or any of the Subsidiaries which has
had, nor does the Company have any knowledge of any tax deficiency which,
if determined adversely to the Company or any of the Subsidiaries, might
have, a Material Adverse Effect.
(y) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, the Company has not (i) issued or granted any securities, (ii)
incurred any material liability or obligation, direct or contingent, other
than liabilities and obligations which were incurred in the ordinary course
of business, (iii) entered into any material transaction not in the
ordinary course of business or (iv) declared or paid any dividend on its
capital stock.
(z) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements in conformity with generally
accepted accounting principles and to maintain accountability for its
assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the recorded accountability for its
assets is compared with existing assets at reasonable intervals.
(aa) Neither the Company nor any of the Subsidiaries (i) is in
violation of its charter or by-laws (or its partnership agreement, as
applicable), (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which it is a
party or by which it is bound or to which any of its properties or assets
is subject or (iii) is in violation in any material respect of any material
law, ordinance, governmental rule, regulation or court decree to which it
or its property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to
the conduct of its business.
(ab) Neither the Company nor any of the Subsidiaries, nor, to its
knowledge, any director, officer, agent, employee or other person
associated with
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or acting on behalf of the Company or any of the Subsidiaries, has used any
corporate or partnership funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity;
made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; or
made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(ac) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or any of
the Subsidiaries (or, except as disclosed in the Registration Statement, to
the knowledge of the Company, any of their predecessors in interest) at,
upon or from any of the property now or previously owned or leased by the
Company or the Subsidiaries in violation of any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial
action which would not have, or could not be reasonably likely to have,
singularly or in the aggregate with all such violations and remedial
actions, a Material Adverse Effect; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or into the environment surrounding such property
of any toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or any of the
Subsidiaries or, except as disclosed in the Registration Statement, with
respect to which the Company or any of the Subsidiaries have knowledge,
except for any such spill, discharge, leak, emission, injection, escape,
dumping or release which would not have or would not be reasonably likely
to have, singularly or in the aggregate with all such spills, discharges,
leaks, emissions, injections, escapes, dumpings and releases, a Material
Adverse Effect; and the terms "hazardous wastes", "toxic wastes",
"hazardous substances" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(ad) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act
of 1940 and the rules and regulations of the Commission thereunder.
2. PURCHASE OF THE STOCK BY THE U.S. UNDERWRITERS. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 600,000 shares of the
Firm Stock to the
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several International Managers and each of the International Managers, severally
and not jointly, agrees to purchase the number of shares of the Firm Stock set
opposite that International Manager's name in Schedule 1 hereto.
In addition, the Company grants to the International Managers an
option to purchase up to 90,000 shares of Option Stock. Such option is granted
solely for the purpose of covering over-allotments in the sale of Firm Stock and
is exercisable as provided in Section 4 hereof. Shares of Option Stock shall be
purchased severally for the account of the International Managers in proportion
to the number of shares of Firm Stock set opposite the name of such
International Managers in Schedule 1 hereto. The respective purchase
obligations of each International Manager with respect to the Option Stock shall
be adjusted by the Lead Managers so that no International Manager shall be
obligated to purchase Option Stock other than in 100 share amounts. The price
of both the Firm Stock and any Option Stock shall be $ per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on the First Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein and in the U.S. Underwriting
Agreement.
3. OFFERING OF STOCK BY THE INTERNATIONAL MANAGERS.
Upon authorization by the Lead Managers of the release of the Firm
Stock, the several International Managers propose to offer the Firm Stock for
sale upon the terms and conditions set forth in the Prospectus.
It is understood that 150,000 shares of the Firm Stock will initially
be reserved by the several Underwriters for offer and sale upon the terms and
conditions set forth in the Prospectus and in accordance with the rules and
regulations of the National Association of Securities Dealers, Inc. to principal
stockholders of the Company or their affiliates who have heretofore delivered to
the Lead Managers and Representatives offers or indications of interest to
purchase shares of Firm Stock in form satisfactory to the International Managers
and Representatives, and that any allocation of such Firm Stock among such
persons will be made in accordance with timely directions received by the Lead
Managers and Representatives from the Company; PROVIDED, that under no
circumstances will the Lead Managers and Representatives or any Underwriters be
liable to the Company or to any such person for any action taken or omitted in
good faith in connection with such offering to principal stockholders of the
Company or their affiliates. It is further understood that any shares of such
Firm Stock which are not purchased by
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such persons will be offered by the Underwriters to the public upon the terms
and conditions set forth in the Prospectus.
Each International Manager agrees that, except to the extent permitted
by the Agreement Between U.S. Underwriters and International Managers, it will
not offer or sell any of the Stock outside of the United States and Canada.
4. DELIVERY OF AND PAYMENT FOR THE STOCK. Delivery of and payment
for the Firm Stock shall be made at the office of Cravath, Swaine & ▇▇▇▇▇,
Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00 A.M., New York
City time, on the fourth full business day following the date of this Agreement
or at such other date or place as shall be determined by agreement between the
Lead Managers and the Company. This date and time are sometimes referred to as
the "First Delivery Date." On the First Delivery Date, the Company shall
deliver or cause to be delivered certificates representing the Firm Stock to the
Lead Managers for the account of each International Manager against payment to
or upon the order of the Company of the purchase price by certified or official
bank check or checks payable in New York Clearing House (next-day) funds. Time
shall be of the essence (except that the Company will not be responsible for any
delay resulting from any action or inaction of any International Manager or U.S.
Underwriter) and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each International
Manager hereunder. Upon delivery, the Firm Stock shall be registered in such
names and in such denominations as the Lead Managers shall request in writing
not less than two full business days prior to the First Delivery Date. For the
purpose of expediting the checking and packaging of the certificates for the
Firm Stock, the Company shall make the certificates representing the Firm Stock
available for inspection by the Lead Managers in New York, New York, not later
than 2:00 P.M., New York City time, on the business day prior to the First
Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 2 may be exercised by written notice
being given to the Company by the Lead Managers. Such notice shall set forth
the aggregate number of shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be issued and the
date and time, as determined by the Lead Managers, when the shares of Option
Stock are to be delivered; PROVIDED, HOWEVER, that this date and time shall not
be earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
fifth business day after the date on which the option shall have been exercised.
The date and time the shares of Option Stock are delivered are sometimes
referred to as
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the "Second Delivery Date" and the First Delivery Date and the Second Delivery
Date are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between the Lead
Managers and the Company) at 10:00 A.M., New York City time, on the Second
Delivery Date. On the Second Delivery Date, the Company shall deliver or cause
to be delivered the certificates representing the Option Stock to the Lead
Managers for the account of each International Manager against payment to or
upon the order of the Company of the purchase price by certified or official
bank check or checks payable in New York Clearing House (next-day) funds. Time
shall be of the essence (except that the Company will not be responsible for any
delay resulting from any action or inaction of any International Manager or U.S.
Underwriter), and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each International
Manager hereunder. Upon delivery, the Option Stock shall be registered in such
names and in such denominations as the Lead Managers shall request in the
aforesaid written notice. For the purpose of expediting the checking and
packaging of the certificates for the Option Stock, the Company shall make the
certificates representing the Option Stock available for inspection by the Lead
Managers in New York, New York, not later than 2:00 P.M., New York City time, on
the business day prior to the Second Delivery Date.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Lead Managers
and to file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than Commission's close of business on the second business
day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under
the Securities Act; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus and to file no Rule 462(b)
Registration Statement except as permitted herein; to advise the Lead
Managers, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective
or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Lead Managers with copies thereof; upon your
request, to cause the Rule 462(b) Registration Statement, properly
completed, to be filed with the Commission pursuant to Rule 462(b) and to
provide evidence satisfactory to the Lead Managers of such filing; to
advise the Lead Managers, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the
14
qualification of the Stock for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification, to use promptly its
reasonable best efforts to obtain its withdrawal;
(b) To furnish reasonably promptly to each of the Lead Managers and
to counsel for the International Managers a signed copy of the Registration
Statement as originally filed with the Commission, each amendment thereto
and any Rule 462(b) Registration Statement filed with the Commission,
including all consents and exhibits filed therewith;
(c) To deliver promptly to the Lead Managers such number of the
following documents as the Lead Managers shall reasonably request:
(i) conformed copies of the Registration Statement as originally filed with
the Commission, each amendment thereto (in each case excluding exhibits
other than this Agreement and the computation of per share earnings) and
any Rule 462(b) Registration Statement, (ii) each Preliminary Prospectus,
the Prospectus and any amended or supplemented Prospectus and (iii) any
document incorporated by reference in the Prospectus (excluding exhibits
thereto); and, if the delivery of a prospectus is required at any time
after the Effective Time in connection with the offering or sale of the
Stock or any other securities relating thereto and if at such time any
events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Securities Act or the Exchange
Act, to notify the Lead Managers and, upon their request, to file such
document and to prepare and furnish without charge to each International
Manager and to any dealer in securities as many copies as the Lead Managers
may from time to time reasonably request of an amended or supplemented
Prospectus which will correct such statement or omission or effect such
compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that
15
may, in the judgment of the Company or the Lead Managers, be required by
the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus, any Prospectus pursuant to
Rule 424 of the Rules and Regulations or any Rule 462(b) Registration
Statement to furnish a copy thereof to the Lead Managers and counsel for
the International Managers and obtain the consent of the Lead Managers to
the filing;
(f) As soon as practicable after the Effective Date (it being
understood that the Company shall have until at least 410 days after the
end of the Company's current fiscal quarter), to make generally available
to the Company's security holders and to deliver to the Lead Managers an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act and the Rules
and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Lead Managers copies of all materials furnished by the
Company to its public shareholders and all public reports and all reports
and financial statements furnished by the Company to the principal national
securities exchange upon which the Common Stock may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time to take such action as the Lead
Managers may reasonably request to qualify the Stock for offering and sale
(or obtain an exemption from registration) under the securities laws of
such jurisdictions as the Lead Managers may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of the Stock; provided, however, that the Company shall not be required to
qualify as a foreign corporation or a dealer in securities or to execute a
general consent to service of process in any jurisdiction in any action
other than one arising out of the offering or sale of the Stock;
(i) For a period of 180 days from the date of the Prospectus, not to,
directly or indirectly, offer for sale, sell or otherwise dispose of (or
enter into any transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any time in the
future of) any shares of Common
16
Stock (other than shares issued pursuant to employee benefit plans,
qualified stock option plans or other employee compensation plans existing
on the date hereof or pursuant to currently outstanding options, warrants
or rights, and other than shares issued by the Company as consideration to
any seller of assets or stock that the Company or any of the Subsidiaries
is acquiring, provided that any shares so issued to such seller or sellers,
including any shares issued pursuant to the Company's acquisition of
Stuart, in the aggregate, do not exceed one-third of the total equity of
the Company outstanding at the time of the first such issuance, and further
provided that such seller or sellers contemporaneously with any such
issuance or issuances enter into an agreement with the Lead Managers in
substantially the same form as the agreement described in this paragraph
(i) for the remainder of the 180 day period), or sell or grant options,
rights or warrants with respect to any shares of Common Stock (other than
the grant of options pursuant to option plans existing on the date hereof),
without the prior written consent of ▇▇▇▇▇▇ Brothers Inc.; and to cause
each officer and director of the Company and Hanseatic Corporation,
Richland Ventures, L.P., Lawrence, Tyrrell, ▇▇▇▇▇▇ & Smith, Lawrence,
Tyrell, ▇▇▇▇▇▇ & ▇▇▇▇▇ II, L.P., Windcrest Partners, JG Partnership, Ltd.,
▇▇▇▇▇ ▇. ▇▇▇▇▇, J. ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (in the case of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ only, limited to (i) shares held for his own account and
(ii) shares beneficially owned by Lexfor Corporation) to furnish to the
Lead Managers, prior to the First Delivery Date, a letter or letters, in
form and substance satisfactory to counsel for the Underwriters, pursuant
to which each such person shall agree not to, directly or indirectly, offer
for sale, sell or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result in the
disposition by any person at any time in the future of) any shares of
Common Stock or any securities convertible into or exchangeable for or any
rights to acquire Common Stock for a period of 180 days from the date of
the Prospectus, without the prior written consent of ▇▇▇▇▇▇ Brothers Inc.;
(j) Prior to the Effective Date, to apply for the inclusion of the
Stock on the National Market System and to use its reasonable best efforts
to complete that listing, subject only to official notice of issuance and
evidence of satisfactory distribution, prior to the First Delivery Date;
and
(k) To take such steps as shall be necessary to ensure that neither
the Company nor any subsidiary shall become an "investment company" within
the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder.
17
6. EXPENSES. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus or any document
incorporated by reference therein, all as provided in this Agreement; (d) the
costs of producing and distributing this Agreement, the U.S. Underwriting
Agreement, the Agreement Between U.S. Underwriters and International Managers,
the Agreement Among International Managers, the International Selling Agreement
and any other related documents in connection with the offering, purchase, sale
and delivery of the Stock; (e) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms of
sale of the Stock; (f) any applicable listing or other fees; (g) the fees and
expenses of qualifying the Stock under the securities laws of the several
jurisdictions as provided in Section 5(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters or foreign counsel to the International Managers);
(h) all fees and expenses of in its capacity as a qualified
independent underwriter; (i) all costs and expenses of the International
Managers, including the fees and disbursements of counsel for the International
Managers, incident to the offer and sale of shares of the Stock by the
International Managers to principal stockholders of the Company or their
affiliates, as described in Section 3; and (j) all other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement; PROVIDED that, except as provided in this Section 6 and in Section
11, the International Managers shall pay their own costs and expenses, including
the costs and expenses of their counsel, any transfer taxes on the Stock which
they may sell and the expenses of advertising any offering of the Stock made by
the International Managers.
7. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS. The respective
obligations of the International Managers hereunder are subject to the accuracy,
when made and on each Delivery Date, of the representations and warranties of
the Company contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 5(a); no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or threatened
by the Commission; and any request of the Commission for inclusion of
additional
18
information in the Registration Statement or the Prospectus or otherwise
shall have been complied with.
(b) No International Manager or U.S. Underwriter shall have
discovered and disclosed to the Company on or prior to such Delivery Date
that the Registration Statement or the Prospectus or any amendment or
supplement thereto contains an untrue statement of a fact which, in the
opinion of Cravath, Swaine & ▇▇▇▇▇, counsel for the International Managers,
is material or omits to state a fact which, in the opinion of such counsel,
is material and is required to be stated therein or is necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the U.S. Underwriting
Agreement, the Stock, the Registration Statement and the Prospectus, and
all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material
respects to counsel for the International Managers, and the Company shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) ▇▇▇▇ Marks & ▇▇▇▇▇ LLP shall have furnished to the Lead Managers
its written opinion, as counsel to the Company, addressed to the
International Managers and dated such Delivery Date, in form reasonably
satisfactory to the Lead Managers, to the effect that:
(i) The Company and each of its corporate Subsidiaries have been
duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation; Frontier City Partners is validly existing as a limited
partnership in good standing under the laws of Oklahoma; and the
Company, the corporate Subsidiaries and Frontier City Partners are
duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification except where the failure to so qualify
would not have a Material Adverse Effect and have all corporate or
partnership power and authority necessary to own or hold their
respective properties and conduct the businesses in which they are
engaged as described in the Prospectus;
19
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company now outstanding (including the shares of Stock being
delivered on such Delivery Date) have been duly and validly authorized
and issued, are fully paid and non-assessable and conform to the
description thereof contained in the Prospectus; all of the shares of
Stock have been duly authorized and, when issued and delivered to the
Lead Managers for the account of each International Manager against
payment therefor as provided herein, shall be validly issued, fully
paid and non-assessable; to such counsel's knowledge, all of the
issued shares of capital stock of each corporate Subsidiary of the
Company have been duly and validly authorized and issued and are fully
paid, non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims, except for liens or encumbrances arising under the New Credit
Facility; and 100% of the partnership interest in Frontier City
Partners is held directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims, except for liens and
encumbrances arising under the New Credit Facility;
(iii) There are no preemptive or other rights to subscribe for
or to purchase, nor any restriction upon the voting or transfer of,
any shares of the Stock pursuant to the Company's charter or by-laws
or any agreement or other instrument known to such counsel;
(iv) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of the Subsidiaries is
a party or of which any property or assets of the Company or any of
the Subsidiaries is the subject which, if determined adversely to the
Company or any of the Subsidiaries, might have a Material Adverse
Effect; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(v) Based solely upon oral confirmation from the staff of the
Commission, the Registration Statement was declared effective under
the Securities Act as of the date and time specified in such opinion;
the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and Regulations specified in
such opinion on the date specified therein and no stop order
suspending the effectiveness of the Registration Statement has been
issued and, to the knowledge of
20
such counsel, no proceeding for that purpose is pending or threatened
by the Commission;
(vi) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior to
such Delivery Date (other than the financial statements and related
schedules therein and other financial or statistical data included
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the
Securities Act and the Rules and Regulations; and the documents
incorporated by reference in the Prospectus (other than the financial
statements and related schedules therein and other financial or
statistical data included therein, as to which such counsel need
express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder;
(vii) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which have not been
described or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations;
(viii) Each of this Agreement and the U.S. Underwriting
Agreement has been duly authorized, executed and delivered by the
Company;
(ix) The issue and sale of the shares of Stock being delivered
on such Delivery Date by the Company and the compliance by the Company
with all of the provisions of this Agreement and the U.S. Underwriting
Agreement will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the
Subsidiaries is bound or to which any of the property or assets of the
Company or any of the Subsidiaries is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws of
the Company or any of the Subsidiaries or, assuming that all consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act
21
and applicable state or foreign securities laws in connection with the
purchase and distribution of the Stock by the International Managers
and the U.S. Underwriters are obtained, any Federal or New York State
statute, the Delaware General Corporation Law, or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of the
Subsidiaries or any of their properties or assets; and, except for the
registration of the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state or foreign
securities laws in connection with the purchase and distribution of
the Stock by the International Managers, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement or the U.S. Underwriting
Agreement by the Company and the consummation of the transactions
contemplated hereby; and
(x) Except as otherwise described in the Registration Statement,
to the best of such counsel's knowledge, all contracts, agreements or
understandings between the Company and any person granting such person
the right to require the Company to file a registration statement
under the Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement have been amended so that such rights will not
take effect prior to May 29, 1997.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law
of the State of Delaware and that such counsel is not admitted in the
States of Delaware, Ohio, Oklahoma, Colorado, California or Massachusetts;
and, in respect of matters of fact, may rely upon certificates of officers
of the Company or the Subsidiaries, PROVIDED that such counsel shall state
that it believes that both the International Managers and it are justified
in relying upon such certificates. Such counsel shall also have furnished
to the Lead Managers a written statement, addressed to the International
Managers and dated such Delivery Date, in form satisfactory to the Lead
Managers to the effect that (x) such counsel has acted as counsel to the
Company on a regular basis (although the Company is also represented with
respect to litigation matters, regulatory matters and certain other
matters, by other outside counsel), has acted as counsel to the Company in
connection with
22
financing transactions since February 1992 and has acted as counsel to the
Company in connection with the preparation of the Registration Statement,
and (y) based on the foregoing, no facts have come to the attention of such
counsel which lead it to believe that (I) the Registration Statement (other
than the financial statements and other financial and statistical data
contained therein, as to which such counsel need express no belief), as of
the Effective Date, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the
Prospectus (other than the financial statements and other financial and
statistical data contained therein, as to which such counsel need express
no belief) contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading or (II) any documents incorporated by
reference in the Prospectus (other than the financial statements and other
financial and statistical data contained therein, as to which such counsel
need express no belief) when they were filed with the Commission contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing
opinion and statement may be qualified by a statement to the effect that
such counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus except for the statements made in the
Prospectus under the captions "Description of Capital Stock" and
"Description of Indebtedness", insofar as such statements relate to the
Stock or the Company's debt instruments and concern legal matters.
(e) The Lead Managers shall have received from Cravath, Swaine &
▇▇▇▇▇, counsel for the International Managers, such opinion or opinions and
such statement or statements, dated such Delivery Date, with respect to the
issuance and sale of the Stock, the Registration Statement, the Prospectus
and other related matters as the Lead Managers may reasonably require, and
the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(f) At the time of execution of this Agreement, the Lead Managers
shall have received from (I) KPMG Peat Marwick LLP a letter, in form and
substance satisfactory to the Lead Managers, addressed to the International
Managers and dated the date hereof (i) confirming that they are independent
public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification
of accountants under Rule 2-
23
01 of Regulation S-X of the Commission and (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given
in the Prospectus, as of a date not more than five days prior to the date
hereof), the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings, except for the financial information and other matters covered
in the letters from KPMG Peat Marwick LLP, Ernst & Young LLP and ▇▇▇▇▇▇ &
Company described immediately hereinafter; from (II) KPMG Peat Marwick LLP
a letter, in form and substance satisfactory to the Lead Managers addressed
to the International Managers and dated the date hereof (i) confirming that
they are independent accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission and (ii) stating, as of the date hereof, the conclusions and
findings of such firm with respect to certain financial information and
other matters relating to The Great Escape as have been previously agreed
to by such firm and the Representatives; from (III) KPMG Peat Marwick LLP a
letter, in form and substance satisfactory to the Lead Managers, addressed
to the International Managers and dated the date hereof (i) confirming that
they are independent accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission and (ii) stating, as of the date hereof, the conclusions and
findings of such firm with respect to certain financial information and
other matters relating to Stuart Amusement Company and its subsidiaries as
have been previously agreed to by such firm and the Lead Managers; from
(IV) Ernst & Young LLP a letter, in form and substance satisfactory to the
Lead Managers, addressed to the International Managers and dated the date
hereof (i) confirming that they are independent accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01
of Regulation S-X of the Commission and (ii) stating, as of the date
hereof,
24
the conclusions and findings of such firm with respect to certain financial
information and other matters relating to Funtime and its subsidiaries as
have been previously agreed to by such firm and the Lead Managers; from (V)
Ernst & Young LLP a letter, in form and substance satisfactory to the Lead
Managers, addressed to the International Managers and dated the date hereof
(i) confirming that they are independent accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission and (ii) stating, as of the date hereof, the
conclusions and findings of such firm with respect to certain financial
information and other matters relating to Elitch Gardens as have been
previously agreed to by such firm and the Lead Managers; and from (VI)
▇▇▇▇▇▇ & Company a letter, in form and substance satisfactory to the Lead
Managers, addressed to the International Managers and dated the date hereof
(i) confirming that they are independent accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission and (ii) stating, as of the date hereof, the
conclusions and findings of such firm with respect to certain financial
information and other matters relating to FRE and Concord, as have been
previously agreed to by such firm and the Lead Managers.
(g) With respect to the letters of KPMG Peat Marwick LLP, Ernst &
Young LLP and ▇▇▇▇▇▇ & Company referred to in the preceding paragraph and
delivered to the Lead Managers concurrently with the execution of this
Agreement (the "initial letters"), the Company shall have furnished to the
Lead Managers a letter (the "bring-down letters") of each of such
accountants, addressed to the International Managers and dated such
Delivery Date (i) confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
of the bring-down letter (or, in the case of the letter of KPMG Peat
Marwick LLP, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days prior to the
date of the bring-down letter), the conclusions and findings of such firm
with respect to the financial information and other matters covered by the
initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(h) The Company shall have furnished to the Lead Managers a
certificate, dated such Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Delivery Date;
the Company has complied with all its agreements contained herein; and
the conditions set forth in Sections 7(a) and 7(i) have been
fulfilled; and
25
(ii) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (B) since the Effective Date no event has
occurred which should have been set forth in a supplement or amendment
to the Registration Statement or the Prospectus.
(i) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus there shall not
have been any change in the capital stock (or partners' equity, as
applicable) or long-term debt of the Company or any of the Subsidiaries or
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity (or partners' equity, as applicable) or results of
operations of the Company and its subsidiaries, otherwise, in each case,
than as set forth or contemplated in the Prospectus, the effect of which,
in any such case, is, in the judgment of the Lead Managers, so material (to
the Company and its Subsidiaries, taken as a whole) and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Stock being delivered on such Delivery Date on the terms
and in the manner contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization",
as that term is defined by the Commission for purposes of Rule 436(g)(2) of
the Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
(k) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United
26
States or there shall have been a declaration of a national emergency or
war by the United States or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions (or
the effect of international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of a majority
in interest of the several International Managers, impracticable or
inadvisable to proceed with the public offering or delivery of the Stock
being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(l) The National Market System shall have approved the Stock for
inclusion, subject only to official notice of issuance and evidence of
satisfactory distribution.
(m) Delivery and payment for the Firm Stock under the International
Underwriting Agreement shall have occurred concurrently with delivery and
payment for the Firm Stock hereunder on the First Delivery Date.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and scope reasonably satisfactory to
counsel for the International Managers.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each International
Manager (including any Underwriter in its role as qualified independent
underwriter pursuant to the rules of the National Association of Securities
Dealers, Inc.), its officers and employees and each person, if any, who controls
any International Manager within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Stock), to which that
International Manager, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained (A) in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto or (B) in any blue sky application or other
document prepared or executed by the Company (or based upon any written
information furnished by the Company) specifically for the purpose of qualifying
any or all of the Stock under the securities laws of any jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application"), (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the
27
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by any International
Manager in connection with, or relating in any manner to, the Stock or the
offering contemplated hereby, and which is included as part of or referred to in
any loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (PROVIDED that the Company shall not
be liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such International Manager through its
gross negligence or willful misconduct), and shall reimburse each International
Manager and each such officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that International
Manager, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; PROVIDED, HOWEVER,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application, in reliance upon and in conformity with written information
concerning any International Manager or any U.S. Underwriter furnished to the
Company through the Lead Managers or Representatives by or on behalf of any
International Manager or U.S. Underwriter specifically for inclusion therein;
and PROVIDED FURTHER that with respect to any such untrue statement or omission
made in the Preliminary Prospectus, the indemnity agreement contained in this
Section 8(a) shall not enure to the benefit of the International Manager from
whom the person asserting any such losses, claims, damages or liabilities
purchased the Stock concerned if, to the extent that such sale was an initial
sale by such International Manager and any such loss, claim, damage or liability
of such International Manager is a result of the fact that both (A) a copy of
the Prospectus was not sent or given to such person at or prior to the written
confirmation of the sale of such Stock to such person, and (B) the untrue
statement or omission in the Preliminary Prospectus was corrected in the
Prospectus unless, in either case, such failure to deliver the Prospectus was a
result of noncompliance by the Company with Section 5(c). The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any International Manager or to any officer, employee or
controlling person of that International Manager.
The Company also will indemnify and hold harmless the Independent
Underwriter, its officers and employees and each person, if any, who controls
the
28
Independent Underwriter within the meaning of the Securities Act, from and
against any and all losses, claims, damages, liabilities and judgments incurred
as a result of the Independent Underwriter's participation as a "qualified
independent underwriter" within the meaning of Rule 2720 of the Conduct Rules of
the National Association of Securities Dealers, Inc. in connection with the
offering of the Stock, except for any losses, claims, damages, liabilities and
judgments resulting from the Independent Underwriter's or such controlling
person's willful misconduct or gross negligence.
(b) Each International Manager, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of its
directors, and each person, if any, who controls the Company within the meaning
of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary Prospectus,
the Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information concerning
such International Manager furnished to the Company through the Lead Manager by
or on behalf of that International Manager specifically for inclusion therein,
and shall reimburse the Company and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is
in addition to any liability which any International Manager may otherwise have
to the Company or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, PROVIDED FURTHER, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may
29
have to an indemnified party otherwise than under this Section 8. If any such
claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
the Lead Managers shall have the right, upon written notice to the Company, to
employ counsel to represent jointly the Lead Managers and those other
International Managers and their respective officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the International Managers against the Company
under this Section 8 if, in the reasonable judgment of the Lead Managers, it is
advisable for the Lead Managers and those International Managers, officers,
employees and controlling persons to be jointly represented by separate counsel,
and in that event the reasonable fees and expenses of such separate counsel
shall be paid by the Company. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties;
PROVIDED HOWEVER, that, if indemnity is sought pursuant to the second paragraph
of Section 8(a), then, in addition to such counsel for the indemnified parties,
the indemnifying party shall be liable for the reasonable fees and expenses of
not more than one separate counsel (in addition to any necessary local counsel)
for the Independent Underwriter in its capacity as a "qualified independent
underwriter," its officers and employees and all persons, if any, who control
the Independent Underwriter within the meaning of the Securities Act, if, in the
reasonable judgment of the Independent Underwriter there may exist a conflict or
interest between the Independent Underwriter and the other indemnified parties.
In the case of any such separate counsel for the Independent Underwriter and
such control persons of the Independent Underwriter, such counsel shall be
designated in writing by the Independent Underwriter. No indemnifying party
shall (i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its written
consent
30
(which consent shall not be unreasonably withheld), but if settled with the
consent of the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(c) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the International Managers on the
other from the offering of the Stock or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
International Managers on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the International Managers
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock purchased
under this Agreement (before deducting expenses) received by the Company on the
one hand, and the total underwriting discounts and commissions received by the
International Managers with respect to the shares of the Stock purchased under
this Agreement, on the other hand, bear to the total gross proceeds from the
offering of the shares of the Stock under this Agreement, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the International
Managers, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the International Managers agree that
will not receive any additional benefits
hereunder for serving as the Independent Underwriter in connection with the
offering and sale of the Stock. The Company and the International Managers
agree that it would not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation (even if the
International Managers were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include, for
purposes of this
31
Section 8(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8(d), no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the Stock underwritten by it and distributed to
the public was offered to the public exceeds the amount of any damages which
such International Manager has otherwise paid or become liable to pay by reason
of any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
International Managers' obligations to contribute as provided in this
Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The International Managers severally confirm and the Company
acknowledges that the statements with respect to the public offering of the
Stock by the International Managers set forth on the cover page of, the legend
concerning over-allotments on the second page of and the concession and
reallowance figures appearing under the caption "Underwriting" in, the
Prospectus constitute the only information concerning such International
Managers furnished in writing to the Company by or on behalf of the
International Managers specifically for inclusion in the Registration Statement
and the Prospectus.
9. DEFAULTING INTERNATIONAL MANAGER.
If, on either Delivery Date, any International Manager defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting International Managers shall be obligated to purchase the Stock
which the defaulting International Manager agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of shares of the
Firm Stock set opposite the name of each remaining non-defaulting International
Manager in Schedule 1 hereto bears to the total number of shares of the Firm
Stock set opposite the names of all the remaining non-defaulting International
Managers in Schedule 1 hereto; PROVIDED, HOWEVER, that the remaining
non-defaulting International Managers shall not be obligated to purchase any of
the Stock on such Delivery Date if the total number of shares of the Stock which
the defaulting International Manager or International Managers agreed but failed
to purchase on such date exceeds 9.09% of the total number of shares of the
Stock to be purchased on such Delivery Date, and any remaining non-defaulting
International Manager shall not be obligated to purchase more than 110% of the
number of shares of the Stock which it agreed to purchase on such Delivery Date
pursuant to the terms of Section 2. If the foregoing maximums are exceeded, the
remaining non-defaulting International Managers, or those other underwriters
satisfactory to the Lead Managers
32
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Stock to be purchased
on such Delivery Date. If the remaining International Managers or other
underwriters satisfactory to the Lead Managers do not elect to purchase the
shares which the defaulting International Manager or International Managers
agreed but failed to purchase on such Delivery Date, this Agreement (or, with
respect to the Second Delivery Date, the obligation of the International
Managers to purchase, and of the Company to sell, the Option Stock) shall
terminate without liability on the part of any non-defaulting International
Manager or the Company, except that the Company will continue to be liable for
the payment of expenses to the extent set forth in Section 6. As used in this
Agreement, the term "International Manager" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 9, purchases Stock which a
defaulting International Manager agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting International
Manager of any liability it may have to the Company for damages caused by its
default. If other underwriters are obligated or agree to purchase the Stock of
a defaulting or withdrawing International Manager, either the Lead Managers or
the Company may postpone the Delivery Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Company or
counsel for the International Managers may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement.
10. TERMINATION. The obligations of the International Managers
hereunder may be terminated by the Lead Managers by notice given to and received
by the Company prior to delivery of and payment for the Firm Stock if, prior to
that time, any of the events described in Sections 7(i), 7(j) or 7(k) shall have
occurred or if the International Managers shall decline to purchase the Stock
for any reason permitted under this Agreement.
11. REIMBURSEMENT OF INTERNATIONAL MANAGERS' EXPENSES. If the
Company shall fail to tender the Stock for delivery to the International
Managers by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed, or because any
other condition of the International Managers' obligations hereunder required to
be fulfilled by the Company is not fulfilled (other than by reason of any events
described in Section 7(k) except for the suspension of trading or minimum prices
of the securities of the Company), the Company will reimburse the International
Managers for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the International Managers in connection
with this Agreement and the proposed purchase of the Stock, and promptly
following
33
demand the Company shall pay the full amount thereof to the Lead Managers. If
this Agreement is terminated pursuant to Section 9 by reason of the default of
one or more International Managers, the Company shall not be obligated to
reimburse any defaulting International Manager on account of those expenses.
12. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the International Managers, shall be delivered or sent by
mail, telex or facsimile transmission to ▇▇▇▇▇▇ Brothers International
(Europe), Three World Financial Center, New York, New York 10285,
Attention: Syndicate Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy, in the
case of any notice pursuant to Section 8(c), to the Director of Litigation,
Office of the General Counsel, ▇▇▇▇▇▇ Brothers Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇;
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
PROVIDED, HOWEVER, that any notice to an International Manager pursuant to
Section 8(c) shall be delivered or sent by mail, telex or facsimile transmission
to such International Manager at its address set forth in its acceptance telex
to the Lead Managers, which address will be supplied to any other party hereto
by the Lead Managers upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the International Managers by ▇▇▇▇▇▇ Brothers International
(Europe) on behalf of the Lead Managers.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the International Managers, the
Company, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
officers and employees of each International Manager and the person or persons,
if any, who control any International Manager within the meaning of Section 15
of the Securities Act and for the benefit of each International Manager (and
officers, employees and such controlling persons thereof) who offers or sells
any shares of Common Stock in accordance with the terms of the Agreement Between
U.S. Underwriters and International Managers and (B) the indemnity agreement of
the International Managers contained in Section 8(b) of this Agreement shall be
34
deemed to be for the benefit of directors of the Company, officers of the
Company who have signed the Registration Statement and any person controlling
the Company within the meaning of Section 15 of the Securities Act. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 13, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
14. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company and the International Managers
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Stock and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
15. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "Subsidiary" means each of
Funtime Parks, Inc., an Ohio corporation, Funtime, Inc., an Ohio corporation,
Wyandot Lake, Inc., an Ohio corporation, Darien Lake Theme Park and Camping
Resort, Inc., a New York corporation, Tierco Maryland, Inc., a Delaware
corporation, Tierco Water Park, Inc., an Oklahoma corporation, Frontier City
Properties, Inc., an Oklahoma corporation, Frontier City Partners, Limited
Partnership, an Oklahoma limited partnership, and Stuart Amusement Company, a
Massachusetts corporation (collectively, the "Subsidiaries").
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
35
If the foregoing correctly sets forth the agreement between the
Company and the International Managers, please indicate your acceptance in the
space provided for that purpose below.
Very truly yours,
PREMIER PARKS INC.
By
-------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
▇▇▇▇▇▇ ▇▇▇▇ LLC
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
For themselves and as Lead Managers
of the several International Managers named
in Schedule 1 hereto
By ▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
By
-----------------------
Authorized Representative
SCHEDULE 1
Number
------
Underwriters of Firm Shares
------------ --------------
▇▇▇▇▇▇ Brothers International (Europe) . . . . . . . . . . . . .
▇▇▇▇▇▇ ▇▇▇▇ LLC . . . . . . . . . . . . . . . . . . . . . . . .
▇▇▇▇▇ ▇▇▇▇▇▇ Inc . . . . . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . 600,000
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-------
