STOCK PURCHASE AGREEMENT
BETWEEN
PREMIER PARKS INC.
(OR A TO BE FORMED BELGIAN CORPORATION)
AND
CENTRAG S.A., ▇▇▇▇▇▇ N.V. AND WESTKOI N.V.
DECEMBER 15, 1997
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "AGREEMENT") is made and entered into as
of the 15th day of December, 1997, by and between:
PREMIER PARKS INC., a Delaware corporation with offices at ▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇, acting, at its sole
option, either on its own behalf or on behalf of a Belgian corporation
to be incorporated pursuant to Article 13b is of the Belgian
Consolidated Company Laws,
(the "BUYER")
and
CENTRAG S.A., a Belgian corporation with registered offices at ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ N.V., a Belgian corporation with registered offices at
▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, and
WESTKOI N.V., a Belgian corporation with registered offices at
▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇
(collectively the "SELLERS", or, individually, a "SELLER"),
with reference to the following facts:
A. Sellers own together 666,501 capital shares of Walibi S.A., a Belgium
corporation (the "COMPANY") with registered offices at ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇, ▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
B. The Company is engaged in the business of owning and operating
amusement parks in Belgium, France and The Netherlands.
C. The outstanding stock of the Company consists of 1,333,000 capital
shares. In addition, the Company has issued 321,724 warrants (the "WARRANTS")
and 321,724 bonds (the "BONDS").
D. The "Outstanding Shares" (as defined in Article 1), the Warrants and
the Bonds are listed on the Brussels Stock Exchange.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties agree as follows:
1. PURCHASE OF SHARES.
At the "Closing" (as defined in Paragraph 11.1), for the consideration
hereinafter provided and in reliance upon the representations and warranties of
the parties set forth herein, Sellers shall sell, assign and transfer to Buyer,
and Buyer shall purchase from Sellers, good, marketable and unencumbered title
in and to (i) all shares of capital stock of the Company they own at the date
hereof as set out in SCHEDULE 1 (the "CURRENT SHARES") and (ii) any additional
shares of capital stock of the Company that the Sellers would acquire without
breaching Paragraph 6.7, so that the total number of such additional shares and
of the Current Shares shall be equal to at least 50% of the number of
Outstanding Shares plus one such share (the Current Shares and any such
additional shares, collectively the "SHARES", or, individually, a "SHARE"). The
Shares shall be transferred to Buyer free and clear of all liens, claims and
encumbrances.
The "OUTSTANDING SHARES" shall be all the capital shares of the
Company issued and outstanding as of the "Closing Date" (as defined in Paragraph
11.1).
2. PURCHASE PRICE.
The purchase price (the "PURCHASE PRICE") to be paid by Buyer to
Sellers hereunder shall be equal to the Share Price (as defined below)
multiplied by the number of Shares.
2.1 SHARE PRICE.
The price for each Share (the "SHARE PRICE") shall equal the
amount determined by the following formula: seven TIMES the Company's "EBITDA"
(as defined below) MINUS total "Net Debt" (as defined below) DIVIDED by the
number of Outstanding Shares. By way of example, assuming BEF 700,000,000
consolidated 1997 EBITDA, BEF 2 billion Net Debt and 1,333,000 Outstanding
Shares, the Share Price would equal BEF 2,900,000,000/1,333,000 = BEF 2,176 per
Share.
The "EBITDA" will be the sum of the amounts under the following income
statement captions in the Company Financial Statements (as defined in Paragraph
4.6.1) for the year ended December 31, 1997:
III Operating profits
IID Depreciation
IIE Increase or decrease in amounts written off stocks,
contracts in progress and trade debtors (not to exceed BEF
5,000,000)
By way of example, the EBITDA as of December 31, 1996, amounted to
BEF'000' 570,105.
The "NET DEBT" shall mean the "Debt" (as defined below),LESS the
"Current Assets" (as defined below), LESS the amount of the Company's and its
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"Subsidiaries'" (as defined in Paragraph 4.3.1) actual capital spending for 1998
occurring on or before December 31, 1997 (but only to the extent such spending
is incurred in compliance with the schedule of total budgeted capital expenses
for 1998 as set forth in SCHEDULE 2.1), and LESS the proceeds of the sale of any
fixed asset of the Company where such assets are not used in the business of the
Company and its Subsidiaries and have not generated any income included in the
calculations of EBITDA for the year ending December 31, 1997 (and in each case
as set forth on SCHEDULE 2.1) and where such sale shall be effected between
January 1, 1998 and the Closing Date.
The "DEBT" will be the "Investco Fee" (as defined in Paragraph
4.12), plus the sum of the amounts under the following balance sheet captions in
the Company Financial Statements for the year ended December 31, 1997:
X Amounts payable after one year
XI Amounts payable within one year
XII Accrued charges and deferred income
By way of example, the Debt as of December 31, 1996, amount to
BEF'000' 3,275,043.
The "CURRENT ASSETS" will be the sum of the amounts under the
following balance sheet captions in the Company Financial Statements for the
year ended December 31, 1997:
VII Stock and contracts in progress
VIII Amounts receivable within one year
IX Investments
X Cash in hand and at the bank
XI Deferred charges and accrued income
By way of example, the Current Assets as of December 31, 1996, amount
to BEF'000' 780,189.
2.2 PAYMENT OF PURCHASE PRICE.
The Purchase Price shall be payable to each Seller at the
Closing, in proportion to the number of Shares respectively sold by each of them
to Buyer, by wire transfer of cash equal to 80% of the Purchase Price and
delivery of shares of Premier Parks Inc. ("PREMIER") common stock, par value US
$0.05 per share ("PREMIER COMMON STOCK") equal to 20% of the Purchase Price,
with cash paid in lieu of issuing fractional shares of Premier Common Stock.
The number of shares of Premier Common Stock to be issued to Sellers shall be
calculated by dividing 20% of the Share Price by the average of the closing
prices of the Premier Common Stock on the NASDAQ National Market or the New York
Stock Exchange Composite Reporting System, as the case may be, in either case as
reported in the WALL STREET JOURNAL, for the ten (10) trading days immediately
preceding the date hereof, translated into BEF using the noon buying rate in The
City of New York for cable
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transfers in BEF as certified for customs purposes by the Federal Reserve Bank
of New York (the "NOON BUYING RATE") on the date hereof.
3. ADDITIONAL CONSIDERATION.
At the Closing, Buyer shall cause Premier to issue to each Seller, as
additional consideration for the transfer of the Shares,non-transferable
contingent value rights (collectively, the "CONTINGENT VALUE RIGHTS") to receive
(subject to Paragraph 16.17 hereof and without prejudice to Paragraph 7.4)
additional shares of Premier Common Stock based upon the following formulas:
(a) If the gross revenues (excluding VAT) of the Company's parks
owned at the time of the Closing (the "PARKS") is equal to or
exceeds BEF 3,325,000,000 for any one of the three full fiscal
years after the Closing (fiscal years 1999, 2000 or 2001), Buyer
shall cause Premier to issue to each holder of Contingent Value
Rights that number of shares of Premier Common Stock equal to
such holder's Initial Amount (as defined below) divided by the
Relevant Price (as defined below).
(b) in addition to the foregoing, if the gross revenues (excluding
VAT) of the Parks is equal to or exceeds BEF 3,675,000,000 for
any one of the three full fiscal years after the Closing (fiscal
years 1999, 2000 or 2001), Buyer shall cause Premier to issue to
each holder of Contingent Value Rights that number of shares of
Premier Common Stock equal to such holder's Secondary Amount (as
defined below) divided by the Relevant Price.
In the event that any Park is closed (either permanently or for more
than 30 consecutive days during the operating calendar under which such Park
currently operates) or sold (whether selling the Park or by selling the stock of
an entity which owns the Park) prior to the completion of such Parks 2001
operating season, the gross revenue (exclusive of VAT) for that Park during such
fiscal year shall be deemed to equal the full amount of gross revenue (exclusive
of VAT) for that Park for the most recent full fiscal year of operation.
The "INITIAL AMOUNT", if any, and the "SECONDARY AMOUNT", if any, for
any holder of Contingent Value Rights shall, in each case, equal BEF 262,500,000
MULTIPLIED by a fraction, the numerator of which equals such holder's Individual
Stock Consideration (as defined below) and the denominator of which equals the
Total Consideration (as defined below).
The "RELEVANT PRICE" for any period, shall equal the average of the
closing prices of the Premier Common Stock on the NASDAQ National Market or the
New York Stock Exchange Composite Reporting System, as the case may be, in
either case as reported in the WALL STREET JOURNAL, for the ten (10) trading
days immediately preceding the second trading date prior to the corresponding
date of the issuance of the shares by Premier,
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translated into BEF using the Noon Buying Rate of the second business day prior
to the corresponding date of the issuance of shares.
The "TOTAL CONSIDERATION" shall mean the Share Price MULTIPLIED by the
Outstanding Shares.
The "INDIVIDUAL STOCK CONSIDERATION" shall mean the BEF value,
measured by using the Noon Buying Rate on the date hereof and pursuant to
Paragraph 2.2, of all shares of Premier Common Stock received by such Seller on
the Closing Date with respect to the Shares that Seller sold hereunder.
By way of example, assuming gross revenues for the Parks was BEF
3,450,000,000 for fiscal year 2000, that Total Consideration was BEF 100,000,000
and that a Seller received cash consideration and stock consideration hereunder
of BEF 8,000,000 and BEF 2,000,000, respectively, such Seller's Initial Amount
would be calculated as follows: BEF 262,500,000 x 2,000,000 / 100,000,000 = BEF
5,250,000.
4. REPRESENTATIONS AND WARRANTIES OF SELLERS.
With such exceptions as are set forth on the referenced schedules to
this Agreement (all of such schedules are collectively referred to as the
"SELLERS DISCLOSURE STATEMENT"), Sellers hereby represent and warrant to Buyer
as set forth in this Article 4. Sellers make no representation and give no
warranty other than those expressly set forth in this Article 4 and no
additional representations or warranties may be implied. For the purposes of
this Article 4, "material", "materially", "material adverse effect" or
"materiality" shall mean with respect to any event, circumstance or condition,
that such event, circumstance or condition causes, or is reasonably likely to
cause, a loss to or a reduction in the value of the Company or any of its
Subsidiaries in an amount equal to or exceeding BEF 5,000,000 (five million).
4.1 ORGANIZATION AND GOOD STANDING.
4.1.1 Each Seller is a corporation ("SOCIETE ANONYME") duly
organized, validly existing and in good standing under the laws of Belgium, has
full corporate power and authority to carry on its business as now conducted by
it and is entitled to own or lease and operate its properties and assets now
owned or leased and operated by it.
4.1.2 The Company is a corporation ("SOCIETE ANONYME") duly
organized, validly existing and in good standing under the laws of Belgium, has
full corporate power and authority to carry on its business as now conducted by
it and is entitled to own or lease and operate its properties and assets now
owned or leased and operated by it.
4.1.3 Each Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, has
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full corporate power and authority to carry on its business as now conducted by
it and is entitled to own or lease and operate its properties and assets now
owned or leased and operated by it.
4.1.4 SCHEDULE 4.1.4 contains complete and correct copies of
(i) the By-Laws or other charter or similar documents of the Company, as in
effect on the date hereof (the "BY-LAWS") and (ii) the By-Laws or other charter
or similar documents of each Subsidiary, as in effect on the date hereof.
4.1.5 The business of the Company, as described in the
"Annual Reports" (as defined in Paragraph 4.6.2) and Company Financial
Statements, is conducted directly and entirely by the Company and its
Subsidiaries. No Seller nor any Seller's "Affiliate" (as defined in Paragraph
16.10), nor officer nor director of either the Company or any Seller or Seller
Affiliate (i) own, directly or indirectly, individually or collectively, any
interest in (a) any business, properties or assets which are necessary or useful
for the conduct of the business of the Company or any Subsidiary, or (b) any
Person which is engaged in the business of owning and operating amusement parks
or in any related business, or (ii) (x) is a lessor, lessee or customer of, or
supplier of goods or services to the Company or any Subsidiary, (y) has any
cause of action or other suit, action or claim whatsoever against, or owes any
amount to the Company or any Subsidiary or (z) has sold to, or purchased from,
the Company or any Subsidiary any assets or property for aggregate consideration
in excess of BEF 3,000,000 since January 1, 1995.
4.1.6 None of the Company or the Company's directors,
officers, agents or employees has (a) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, (b) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns from corporate funds or violated any provision of the United States
Foreign Corrupt Practices Act of 1977, as amended, or (c) made any other
unlawful payment.
4.2 CAPITALIZATION.
4.2.1 The Company has 1,333,000 shares of capital stock
issued and outstanding as of the date hereof, and SCHEDULE 1 sets forth the
ownership of all such shares owned by Sellers on the date hereof. The shares of
capital stock of the Company are listed on the Brussels Stock Exchange and are
validly issued, fully paid and nonassessable and have been issued in full
compliance with all applicable laws. In addition, the Company has issued:
(a) 321,724 warrants (the "WARRANTS") to acquire in the aggregate
160,862 new shares of the Company (each Warrant being entitled to
acquire 1/2 of a share) at an exercise price of BEF 3,250 per
share, the Warrants expiring, if not exercised, on December 20,
1997. The Warrants are listed on the Brussels Stock Exchange.
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(b) 321,724 subordinated bonds (the "BONDS") bearing interest at
6.75% and with a nominal value of BEF 3,200 each. The Bonds are
repayable by June 30, 1999, and the Company has repurchased
125,385 Bonds as of the date hereof, which Bonds will be
destroyed in accordance with a decision taken by the Board of
Directors of the Company on December 11, 1997. The Bonds are
listed on the Brussels Stock Exchange.
4.2.2 Sellers own full, exclusive and unconditional title
into all of the Current Shares, free and clear of all "Liens" (as defined in
Paragraph 16.10) or adverse rights of any kind whatsoever, and will own at the
time of the Closing full, exclusive and unconditional title in and to all of the
Shares, free and clear of any Liens or adverse rights of any kind whatsoever,
all except for the pledge of Generale Bank on 514,816 shares owned by Centrag
S.A. (the "PLEDGE"). The Shares will constitute, at the time of the Closing,
at least 50% of the total number of the Outstanding Shares, plus one such share.
On the Closing Date, (i) the Buyer shall acquire the full, exclusive and
unconditional ownership of the Shares and therefore the control over the Company
(and, indirectly, the control of the Subsidiaries) and (ii) the Shares
transferred from Sellers to Buyer hereunder shall be fully vested with all of
their voting rights and with the right to share in the profits, dividends and
other distributions of the Company from the Closing Date.
4.2.3 Except as disclosed herein, there are no options,
warrants, subscriptions or other rights outstanding for the purchase of, nor any
securities convertible into, capital shares or founders shares of the Company,
nor are there any other outstanding securities which allow the holders thereof
voting rights or any rights to share in the profits or assets of the Company.
No shares of the Company are held as treasury stock.
4.2.4 There are no agreements granting to any Person the
right to a position on the Board.
4.3 INVESTMENT IN OTHER ENTITIES.
4.3.1 SCHEDULE 4.3.1 sets forth (i) the name of each corporation
of which the Company, directly or indirectly, owns shares of capital stock or
any other class of voting equity having in the aggregate of 50% or more of the
total combined voting power of the issued and outstanding shares of capital
stock entitled to vote generally in the election of directors of such
corporation (individually, a "SUBSIDIARY", and collectively, the
"SUBSIDIARIES"); and (ii) in the case of each of the Subsidiaries and such other
corporations described in the foregoing clause (i), (A) the jurisdiction of
incorporation and (B) the capitalization thereof and the percentage of each
class of voting stock owned by the Company or by any of its Subsidiaries, on the
date hereof. Other than the Subsidiaries, the Company or its Subsidiaries does
not own or have the right to acquire any other equity interest or investment in
any other entity.
4.3.2 All of the outstanding shares of capital stock and
founders shares of each Subsidiary are validly issued and non-assessable and
have been issued in full compliance with all applicable securities laws, and,
except as specified in SCHEDULE 4.3.2, are
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owned of record and beneficially, directly or indirectly, by the Company, free
and clear of any Liens.
4.3.3 There are no options, warrants, subscriptions or other
rights outstanding for the purchase of, nor any securities convertible into,
capital shares or founders shares of any Subsidiary nor are there any other
outstanding securities which allow the holders thereof voting rights or rights
to share in the profits or assets of any Subsidiary. No shares of any
Subsidiary are held as treasury stock.
4.4 AUTHORITY.
Sellers have the full corporate power and authority to execute
and deliver this Agreement, to perform the obligations and covenants set forth
herein and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Sellers and the consummation of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of each Seller, and no further corporate action is necessary on the
part of any Seller to make this Agreement binding upon each Seller in accordance
with its terms. This Agreement has been duly executed and delivered by Sellers
and constitutes the valid and binding agreement of each Seller, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency and other similar laws affecting the enforceability of creditors'
rights generally, general equitable principles and the discretion of courts in
granting equitable remedies. There is no restriction on the power of any Seller
to sell and deliver the Shares.
4.5 NO CONFLICTS OR VIOLATIONS.
4.5.1 Except for the matters set forth in SCHEDULE 4.5.1,
neither the execution and delivery of this Agreement by Sellers, nor the
consummation of the transactions contemplated hereby, will violate or conflict
with, constitute a breach of or default under, result in the loss of any
material benefit under, permit the acceleration of any obligation under or
result in the creation of a Lien under: (a) any term or provision of the by-laws
of any Seller or the By-Laws; (b) any judgment, decree or order of any
"Governmental Entity" (as defined in Paragraph 16.10) or any agreement, contract
or instrument to which any Seller or the Company or any Subsidiary is a party or
by which any of them or any of their properties is bound or affected; or (c) any
"Legal Requirements" (as defined in paragraph 16.10) applicable to the Company
or any Subsidiary or to any Seller.
4.5.2 Except for the By-Laws, there are no agreements,
commitments or understandings of any nature whatsoever in effect between any
Seller and any other shareholder of the Company and/or any other Person that,
directly or indirectly, create, modify, supplement, amend, waive, avoid,
regulate or otherwise concern their rights, privileges, obligations or duties
(including, but not limited to, voting rights, right to dividends, options,
subscription rights), as shareholders or potential shareholders of the Company.
4.6 FINANCIAL STATEMENTS, ANNUAL REPORTS; UNDISCLOSED LIABILITIES.
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4.6.1 Sellers have delivered to Buyer a true and complete
copy of the balance sheet of the Company and its consolidated Subsidiaries as at
December 31, 1996 and the related statements of income, cash flow and changes in
shareholder's equity for the year then ended, and (at the latest on February 23,
1998) Sellers shall deliver to Buyer a true and complete copy of the balance
sheet of the Company and its consolidated Subsidiaries as at December 31, 1997
and the related statements of income, cash flow and changes in shareholder's
equity for the year then ended, in each case together with the audit report
thereon (collectively, the "COMPANY FINANCIAL STATEMENTS"). The Company
Financial Statements have been (or in the case of the Company Financial
Statements for the year ended December 31, 1997, will be) prepared in accordance
with IASC (except where these are in conflict with Belgian generally accepted
accounting principles, in which case such statements shall comply with Belgian
generally accepted accounting principles) consistently applied throughout the
periods involved, excepted as otherwise provided in those statements (provided
that in all events, the Company Financial Statements for the year closed
December 31, 1997 shall be consistent with the Company Financial Statements for
the year ended December 31, 1996). The Company Financial Statements, including
the notes thereto and taking the matters referred to in SCHEDULE 4.6 into
account, present fairly and accurately in all material respects the financial
position, income cash flow and changes in shareholder's equity of the Company
and its consolidated Subsidiaries for the dates and periods indicated.
4.6.2 Sellers have delivered to Buyer a true and complete
copy of the Annual Report of the Company and its consolidated Subsidiaries for
the year ended December 31, 1996, and (at the latest on February 23, 1998)
Sellers shall deliver to Buyer a true and complete copy of the Annual Report of
the Company and its consolidated Subsidiaries for the year ended December 31,
1997 (collectively, the "ANNUAL REPORTS"). The Annual Reports do not (or in the
case of the Annual Report for the year ended December 31, 1997, will not)
contain any untrue statement of material fact, or omit to state any material
fact in order to make such Annual Report not misleading.
4.6.3 Except for the matter referred to in Schedule 4.6, the
Company has no liabilities or obligations, either direct or indirect, matured or
unmatured or absolute, contingent or otherwise except (i) those liabilities or
obligations set forth on the Company Financial Statements dated as of December
31, 1996 and not heretofore paid or discharged, (ii) liabilities arising in any
ordinary course of business under any agreement, contract, commitment, lease or
plans specifically disclosed to Buyer in writing, and (iii) those liabilities or
obligations incurred consistently with past business practice, in or as a result
of the normal and ordinary course of business since December 31, 1996. For the
purpose of this Paragraph, the term "liabilities" shall include, without
limitation, any direct or indirect indebtedness, guaranty, endorsement, claim,
loss, damage, deficiency, cost, expense, obligation or responsibility, whether
fixed or contingent, known or unknown, asserted or unasserted, ▇▇▇▇▇▇ or
inchoate, liquidated or unliquidated, secured or unsecured.
4.7 ABSENCE OF CERTAIN CHANGES.
Except as set forth on SCHEDULE 4.7 since December 31, 1996, (i)
each of the Company and the Subsidiaries has conducted its business in the
ordinary course,
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consistent with past practice, (ii) no event has occurred which has or which
would reasonably be expected to have, in the aggregate, a material adverse
effect on the Company or any Subsidiary and (iii) neither the Company nor any
Subsidiary has taken any action which would be prohibited by Paragraph 6.4.
4.8 INTERESTS IN COMPETITORS AND SUPPLIERS.
Except as set forth on SCHEDULE 4.8 no Seller nor any of their
Affiliates, nor any other Affiliates of the Company, own, directly or
indirectly, individually or collectively, any interest in any Person which (a)
is a competitor, customer or supplier of the Company or any Subsidiary, or (b)
has an existing contractual relationship with the Company or any Subsidiary.
Ownership of not more than one percent of any class of capital stock of any
publicly traded corporation shall not constitute a breach of the representations
and warranties contained in this paragraph.
4.9 REAL ESTATE
4.9.1 The Company and its Subsidiaries currently own
sufficient title to or have valid leases, in each case entitling the Company and
its Subsidiaries to occupy all of the real estate on which the amusement parks
listed in the Annual Reports and which are currently operated by the Company and
its Subsidiaries are located (the "REAL ESTATE").
4.9.2 All deeds and other documents necessary to prove or
show title to the Real Estate are in the possession of or held to the order of
the Company or a Subsidiary.
4.9.3 No proposal has been made, nor do there exist any
circumstances rendering it likely that any proposal will be made, for the
compulsory acquisition of the whole or any part of the Real Estate.
4.9.4 To the best knowledge of Sellers, (a) none of the
facilities necessary for access, enjoyment and current use of the Real Estate or
any part of them are enjoyed on terms entitling any person to terminate or
curtail the same, and (b) none of the Real Estate is subject to any legal
restrictions or encumbrances that would materially interfere with the current
use and operation of the Real Estate by the Company and its Subsidiaries.
4.10 LITIGATION; DECREES
There are no judicial or administrative actions, proceedings or
investigations pending or, to the best knowledge of Sellers, threatened that
question the validity of this Agreement or any action taken or to be taken by
any Seller in connection with this Agreement. Except as listed or described on
SCHEDULE 4.10, there are no (i) lawsuits, claims, administrative or other
proceedings or investigations pending against the Company or any Subsidiary, or
to the best of Seller's knowledge, threatened by, against of affecting the
Company or any Subsidiary or any Affiliate thereof or (ii) judgments, orders
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or decrees of any Governmental Entity binding on the Company or any Subsidiary
or their respective assets. Without limiting the generality of the foregoing,
all pending claims or allegations asserted against the Company or any Subsidiary
within the last three years based upon or arising from any injury or harm to any
person resulting from the negligence of malfeasance (or alleged negligence or
malfeasance) of the Company or any Subsidiary or any employee or agent thereof
occurring at or upon any property owned or leased by the Company or any
Subsidiary is set forth on SCHEDULE 4.10.
4.11 COMPLIANCE WITH LAW; PERMITS
To the best knowledge of Sellers, the Company and its
Subsidiaries have complied in all material respects with all Legal Requirements,
judgments, orders and decrees of any Governmental Entity.
4.12 COMMISSIONS OR FINDER'S FEES
Neither the Company nor any Subsidiary nor any person or entity
acting on behalf of the Company or any Subsidiary has agreed to pay a
commission, finder's fee or similar payment in connection with this Agreement or
any matter related hereto to any person or entity, except as set forth on
SCHEDULE 4.12 (the "INVESTCO FEE").
4.13 DISCLOSURE
No representation or warranty by Sellers contained in this
Agreement, and no statement contained in any document (including without
limitation the Company Financial Statements, the closing documents delivered
pursuant to this Agreement, the Sellers Disclosure Statement and all items
furnished to Buyer or to which Buyer is given access pursuant to Paragraph 6.2),
list, certificate or other instrument furnished or to be furnished by or on
behalf of Sellers or any Affiliate thereof to Buyer or any of its
representatives in connection with the transactions contemplated hereby, contain
or will contain any untrue statement of a material fact, or omits or will omit
to state any material fact necessary, in light of the circumstances under which
it was or will be made, in order to make the statements herein or therein not
misleading. Sellers have not failed to disclose to Buyer any fact which would
reasonably be determined to have a material adverse effect on the Company's
business, financial condition, results of operations or prospects, or which is
otherwise material to the Company or any Subsidiary.
4.14 INTELLECTUAL PROPERTY
SCHEDULE 4.14 contains a list of material patents, trade names,
trademark registrations and applications, and service marks to which the Company
or a Subsidiary, as indicated, owns the entire right, title and interest
including, without limitation, the right to use and license the same. The
Company and the Subsidiaries have the right to use any software they use which
is material to the running of their business.
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4.15 NON US PERSON
Each Seller represents that it is a non "US Person" as such term
is defined in Regulation S under the United States Securities Act of 1933.
4.16 INVESTIGATION
Each Seller represents and warrants to Buyer that Buyer has made
available to such Seller or its agents Buyer's most recent Annual Report on Form
10-K, Proxy Statement and Prospectus filed by the Buyer with the United States
Securities and Exchange Commission. Each Seller acknowledges and agrees that
share certificates representing the shares of Premier Common Stock will contain
a legend substantially as follows:
"THIS CERTIFICATE AND THE SHARE EVIDENCED HEREBY HAVE NOT BEEN AND WILL NOT
BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY
STATE OR OTHER JURISDICTION OF THE UNITED STATES AND MAY BE OFFERED, SOLD,
PLEDGED OR TRANSFERRED ONLY PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT."
4.17 CONSENTS.
No authorizations, approvals or consents of any Governmental
Entity, commission, bureau, agency or other public body or authority are
required for any Seller to enter into this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF BUYER.
With such exceptions as are set forth on the referenced schedules to
this Agreement (all of such schedules are collectively referred to as the "BUYER
DISCLOSURE STATEMENT"), Buyer hereby represents and warrants to Sellers as
follows:
5.1 ORGANIZATION AND GOOD STANDING.
Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, has full corporate power
and authority to carry on its business as now conducted by it and is entitled to
own or lease and operate its properties and assets now owned or leased and
operated by it. Buyer is duly qualified and in good standing as a foreign
corporation in each jurisdiction where the character or location of the assets
owned by it or the nature of the business transacted by it requires such
qualification, except where failure to be so qualified would not have a material
adverse effect on the financial condition, results of operations, business or
prospects of Buyer and its subsidiaries, taken as a whole.
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5.2 AUTHORITY.
Buyer has the full corporate power and authority to execute and
deliver this Agreement, to perform the obligations and covenants set forth
herein and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Buyer and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of Directors of
Buyer. No further corporate action is necessary on the part of Buyer to make
this Agreement binding upon it in accordance with its terms. This Agreement has
been duly executed and delivered by Buyer and constitutes the valid and binding
agreement of Buyer, enforceable against Buyer in accordance with its terms,
subject to applicable bankruptcy, insolvency and other similar laws affecting
the enforceability of creditors' rights generally, general equitable principles
and the discretion of courts in granting equitable remedies.
5.3 CONSENTS.
No authorizations, approvals or consents of any Governmental
Entity, commission, bureau, agency or other public body or authority are
required for Buyer to enter into this Agreement.
6. OBLIGATIONS AND COVENANTS OF SELLERS.
Sellers hereby covenant and agree as follows:
6.1 REASONABLE EFFORTS.
Subject to the other provisions of this Agreement, Sellers shall
use their reasonable efforts: (a) to take, or cause to be taken, all actions
necessary, proper or advisable to obtain all approvals of Governmental Entities
and consents of third parties required to be obtained by or on behalf of the
Company, its Subsidiaries or Sellers to consummate the transactions contemplated
by this Agreement; and (b) to satisfy or cause to be satisfied all of the
conditions precedent to its obligations or the obligations of Buyer under this
Agreement to the extent that its action or inaction can control or influence the
satisfaction of such conditions.
6.2 DUE DILIGENCE INVESTIGATION.
Prior to Closing, Sellers shall permit Buyer, and shall cause the
Company and its Subsidiaries to permit Buyer, to conduct such investigation of
the condition (financial or otherwise), business, assets, properties, operations
or prospects of the Company and its Subsidiaries as Buyer shall reasonably deem
appropriate including, without limitation, with respect to any matters set forth
on the Sellers Disclosure Statement and with respect to the Company Financial
Statements. Sellers shall, and shall cause the Company and its Subsidiaries to,
provide Buyer and its agents and representatives, including its independent
accountants, internal auditors and attorneys, full and complete access to all
the facilities, offices and personnel (including the Company's auditors) of the
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Company and its Subsidiaries, and shall cause the Company's and its
Subsidiaries' officers, employees, auditors and advisors to furnish Buyer with
such financial and operating data and other information (including audit work
papers) with respect to the condition (financial or otherwise), business,
assets, properties, operations or prospects of the Company and its Subsidiaries
as Buyer shall request. However, no such investigation of Buyer shall be
conducted in a manner that would or could interfere unreasonably with the
operation of the businesses of the Company or of its Subsidiaries, and neither
Buyer nor any of its Representatives shall be present on the premises of the
Company or of any of its Subsidiaries without the Sellers prior consent, which
shall not be unreasonably withheld.
6.3 FINANCIAL STATEMENTS
Beginning with a monthly report for December 1997, Sellers shall
cause the Company to deliver to Buyer, at the latest on the 15th day of each
succeeding month, copies of monthly management reports for the month ended
immediately prior thereto. Each of such monthly management report shall be
prepared in accordance with past practice.
6.4 CONDUCT OF BUSINESS.
From December 31, 1996 and until the Closing Date, (a) the
Company and its Subsidiaries have conducted, and Sellers shall cause the Company
and its Subsidiaries to conduct, their business only in the ordinary course,
consistent with past practices and (b) the Company and its Subsidiaries have
used, and Sellers shall cause the Company and the Subsidiaries to use,
reasonable efforts to maintain and preserve their business organizations and
material rights, franchises and properties, and to retain the services of their
officers and key employees and maintain relationships with customers, suppliers
and other third parties to the end that their goodwill and ongoing business
shall not be impaired in any material respect. Without limiting the generality
of the foregoing, during the period from December 31, 1996 until the Closing
Date, the Sellers shall cause the Company and the Subsidiaries not to, except as
otherwise expressly contemplated by this Agreement and the transactions
contemplated hereby, without the prior written consent of Buyer:
(a) split, combine or reclassify any shares of its capital stock,
declare, pay or set aside for payment any dividend or other distribution in
respect of its capital stock, or directly or indirectly, redeem, purchase or
otherwise acquire any shares of its capital stock or other securities;
(b) issue, sell, dispose of, encumber or deliver (whether through
the issuance or granting of any options, warrants, commitments, subscriptions,
rights to purchase or otherwise) any stock of any class or any securities
convertible into or exercisable or exchangeable for shares of stock of any
class;
(c) intentionally incur any liability or obligation (absolute,
accrued, contingent or otherwise) other than in the ordinary course of business
consistent with past practices or issue any debt, securities or, other than in
the ordinary course consistent with
14
past practices, assume, guarantee, endorse or otherwise as an accommodation
become responsible for the obligations of any other person;
(d) acquire or agree to acquire (by merger, consolidation or
acquisition of stock or assets) any corporation, partnership or other business
organization or division or significant assets thereof or acquire, or agree to
acquire, directly or indirectly, any equity interest in any person or incur any
capital expenditures, other than the capital expenditures set forth on SCHEDULE
2.1;
(e) amend or modify the By-Laws or other similar charter
documents;
(f) sell, lease, license, encumber or dispose of any of its
assets, other than in the ordinary course of business consistent with past
practices;
(g) amend or terminate any material contract or other agreement,
other than in the ordinary course of business consistent with past practices or
fail to renew any material contract or other agreement pursuant to the exercise
of contractual renewal rights provided that in each event the Company shall
obtain the written consent of Buyer with respect thereto;
(h) make any change in financial or tax accounting methods,
principles or practices or make or revoke, or cause to be made or revoked, any
elections with respect to taxes, unless required by IASC or applicable law;
(i) extend credit in the sale of products, collection of
receivables or otherwise, other than in the ordinary course of business
consistent with past practices (provided that refraining from pursuing
collection of delinquent accounts shall not be deemed to be extending credit);
(j) fail to maintain all books, accounts and records in the
usual, regular an ordinary manner on a basis consistent with prior years;
(k) fail to use all commercially reasonable efforts to take, or
omit to use all commercially reasonable efforts to take, any action where such
failure or omission would cause (x) any representation or warranty in Article 4
hereof (but excluding any representations or warranties which specifically
relate to an earlier date) to be untrue or incorrect in any material respect as
of the Closing or (y) any of the conditions to the Closing set forth in Articles
8 or 9 not being satisfied;
(l) adopt or amend in any material respect any collective
bargaining agreement or employee benefit plans other than as required by law;
(m) grant to any executive officer any increase in compensation
or in severance or termination pay, grant any severance or termination pay, or
enter into any employment agreement with any executive officer, except as may be
required under employment or termination agreements in effect on the date of
this Agreement;
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(n) enter into any agreement, including an agreement to purchase
or lease assets or operating supplies, which includes an aggregate payment or
commitment on the part of either party or more than BEF 1,000,000, other than
agreements or arrangements entered into in the ordinary course of business as
currently conducted;
(o) make any changes or agree to make any changes to any federal,
state, local or foreign income or franchise tax returns filed prior to the date
hereof or file any amended federal, state, local or foreign income or franchise
tax returns; or
(p) agree, in writing or otherwise, to do any of the foregoing.
However, at any time prior to the Closing Date, the Company shall
enter into a consultancy agreement with each of Messrs. ▇▇▇▇ ▇▇▇▇▇, Luc
Florizoone, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, or with one or more companies
controlled by the same (the "CONSULTANCY AGREEMENTS"). The Consultancy
Agreements shall be for a fixed term of three (3) years and the Company's
aggregate annual expenditures under all the Consultancy Agreements shall amount
to BEF 18,500,000; any other terms of the Consultancy Agreements must be
approved in advance by Buyer in writing.
6.5 NOTICE OF DEVELOPMENTS.
From the date hereof and until the Closing, Sellers shall
promptly notify Buyer in writing of any material developments, positive or
negative, with respect to the business or operations of the Company, including,
without limitation, the occurrence, or threatened occurrence, of any event which
would cause or constitute a breach of any of the warranties, representations or
covenants of Sellers contained in this Agreement or in any documents or
schedules delivered hereunder.
6.6 TAKEOVER BID.
From and after the date hereof, Sellers shall, subject to Buyer
complying with its obligations under Paragraph 7.2, use best efforts to support
the "Takeover Bid" (as defined below) including, without limitation, voting all
Shares at any shareholders meeting of the company in favor of such transaction,
if required, and causing the Board of Directors of the Company to recommend the
Takeover Bid to the remaining shareholders of the Company.
6.7 MARKET ACTIVITIES
From and after the date hereof, Sellers shall not, and shall
endeavor to cause their officers, shareholders, directors and Affiliates not to,
directly or indirectly, take any active or passive action that may reasonably be
expected to have any effect on the current value of the shares of capital stock
of the Company, Warrants and Bonds listed on the Brussels Stock Exchange. In
particular, the Sellers undertake not to purchase any shares of capital stock of
the Company, Warrants or Bonds between the date hereof and the Closing, except
for purchases of shares of capital stock of the Company from ▇▇. ▇▇▇▇
16
Meeus for the sole purpose of complying with Paragraph 9.6. Sellers also agree
not to sell any of the Current Shares prior to the Closing.
6.8 COMMISSIONS OR FINDER'S FEES.
Sellers, jointly and severally, shall promptly pay, and shall
indemnify and hold harmless the Company, each Subsidiary and Buyer with respect
to any commission, finders' fee or similar payment claimed by any Person with
this Agreement or any matter related thereto, other than the Investco Fee, which
shall be paid by the Company and included in Net Debt.
7. OBLIGATIONS AND COVENANTS OF BUYER.
Buyer hereby covenant and agree as follows:
7.1 REASONABLE EFFORTS.
Subject to the other provisions of this Agreement, Buyer agrees
to use its reasonable efforts: (a) to take, or cause to be taken, all actions
necessary, proper or advisable to obtain all approvals of Governmental Entities
and consents of third parties required to be obtained by or on behalf of Buyer
to consummate the transactions contemplated by this Agreement; and (b) to
satisfy or cause to be satisfied all of the conditions precedent to its
obligations or to the obligations of Sellers under this Agreement, to the extent
that its action or inaction can control or influence the satisfaction of such
conditions.
7.2 TAKEOVER BID.
Following the Closing, Buyer shall commence and conduct a "public
takeover bid" (as defined and regulated under Belgian law) for all of the
remainder of the Outstanding Shares (the "TAKEOVER BID"). The Takeover Bid
shall be conducted in compliance with all applicable laws and regulations and
with all advises and requests validly made by the Belgian COMMISSION BANCAIRE ET
FINANCIERE in respect of the Takeover Bid.
7.3 EXCLUSIVE DEALING.
Unless this Agreement has been terminated in accordance with its
terms, neither Buyer, nor any of its Representatives, shall, directly or
indirectly, solicit or encourage inquiries or proposals from, or participate in
any negotiations or discussions or enter into any agreements or understandings
with, or furnish any information to, third parties with respect to the purchase
of any shares of capital stock of the Company.
7.4 CAPITAL INVESTMENTS.
If, but only if, the Closing occurs, Buyer or the Company will
invest a minimum of BEF 1,400,000,000 (the "MINIMUM AMOUNT") in cumulative
capital
17
improvements in the Parks for the first three seasons after the end of the 1998
season (i.e., 1999, 2000 and 2001). Buyer or the Company will invest at least
40% (forty per cent) of the Minimum Amount for the 1999 season. If for any
reason whatsoever Buyer fails to comply with its obligations under this
Paragraph 7.4, or if, before December 31, 2001, Buyer sells the Company or any
of its Subsidiaries, or if, before the same date, the Company sells
substantially all of its assets, then the holders of the Contingent Value Rights
shall be entitled to receive from Premier, and Buyer shall cause Premier to
issue to such holders, the number of shares of Premier Common Stock as provided
for in Paragraphs 3 (a) and 3 (b) as if the gross revenue for the Parks would be
BEF 3,675,000,000 for any of the fiscal years 1999, 2000 or 2001; provided
however that once a payment has been made under Paragraph 3 (a) there are no
further rights under such Paragraph 3 (a), and that once a payment has been made
under Paragraph 3 (b) there are no further rights under such Paragraph 3 (b).
8. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLERS.
The obligations of each party under this Agreement shall be subject to
the satisfaction on or before the Closing Date of each of the following
conditions, except to the extent the parties may waive any of such conditions in
writing:
8.1 CONSENTS.
All authorizations, approvals, orders and consents of, and
registrations, declarations and filings with, any Governmental Entity required
for consummation of the transactions contemplated by this Agreement shall have
been obtained or made (other than the filing of any documents required to be
filed after the Closing Date).
8.2 LITIGATION.
On the Closing Date, there shall be no effective injunction, writ
or preliminary restraining order or any order of any nature issued by a
Governmental Entity of competent jurisdiction to the effect that the
transactions contemplated by this Agreement may not be consummated as herein
provided, no proceeding or lawsuit shall have been commenced by any Governmental
Entity for the purpose of obtaining any such injunction, writ or preliminary
restraining order, and no written notice shall have been received from any
Governmental Entity indicating an intent to restrain, prevent, delay or
restructure the transactions contemplated by this Agreement.
8.3 SECURITIES AND COMPETITION LAW COMPLIANCE.
All applicable securities and competition laws applicable to the
sale of the Shares shall have been complied with in all material respects.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER.
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The obligations of Buyer under this Agreement shall be subject to the
satisfaction on or before the Closing Date of each of the following conditions,
except to the extent Buyer may waive any such conditions in writing:
9.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLERS.
All representations and warranties of Sellers contained in or
made under or in connection with this Agreement shall be true and correct in all
material respects both as of the date of this Agreement and as of the Closing
Date, except as to changes contemplated or permitted by this Agreement, with the
same force and effect as if such representations and warranties had been made as
of the Closing Date, and Sellers shall have performed all actions, agreements
and covenants required by this Agreement to be performed by them on or prior to
the Closing Date.
9.2 CONSENTS.
There shall have been obtained (a) all consents or approvals of
any third party required under the terms of any material agreement, including
those agreements referred to in Schedule 4.5.1 as a result of or in connection
with the consummation of the transactions contemplated by this Agreement, and
(b) all other consents or approvals of any Person required for the consummation
of the transactions contemplated by this Agreement.
9.3 OTHER LEGAL MATTERS.
Buyer shall have received from ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇,
counsel to Sellers, an opinion dated as of the Closing Date in form and
substance reasonably satisfactory to Buyer, covering among other things, due
incorporation, existence and capitalization of the Company and its Subsidiaries,
and the due existence, incorporation and authority of each Seller.
9.4 RELEASE OF PLEDGE.
Generale Bank's Pledge on the Shares has been released.
9.5 NO MATERIAL ADVERSE CHANGE.
Since December 31, 1996, there shall have occurred no material
adverse change to the business, operations, financial condition or prospects of
the Company and its Subsidiaries.
9.6 OWNERSHIP OF SHARES.
Upon consummation of the Closing, Buyer shall acquire full,
exclusive and unconditional ownership of the Shares, which Shares shall
constitute at least 50% of the total number of Outstanding Shares plus one
share, as calculated on a fully-diluted basis taking into account all options,
warrants, subscription and other rights outstanding for the
19
purchase of capital shares or founder shares of the Company and any securities
which allow the holders thereof voting rights or any rights to share in the
profits of the Company.
9.7 WARRANTS.
There shall be no Warrants outstanding.
9.8 DIRECTORS.
The Boards of Directors of the Company shall have co-opted such
directors as indicated by Buyer.
10. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS.
The obligations of Sellers under this Agreement shall be subject to
the satisfaction on or before the Closing Date of each of the following
conditions, except to the extent Sellers may waive any such conditions in
writing:
10.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER.
All representations and warranties of Buyer contained in or made
under or in connection with this Agreement shall be true and correct in all
material respects both as of the date of this Agreement and as of the Closing
Date, except as to changes contemplated or permitted by this Agreement, with the
same force and effect as if such representations and warranties had been made as
of the Closing Date, and Buyer shall have performed all agreements and covenants
required by this Agreement to be performed by them on or prior to the Closing
Date.
10.2 OTHER LEGAL MATTERS.
Sellers shall have received from Weil, Gotshal & ▇▇▇▇▇▇ LLP,
counsel to Buyer, an opinion dated as of the Closing Date in form and substance
reasonably satisfactory to Sellers, covering among other things, due
incorporation, existence and capitalization of Premier, and the due existence,
incorporation and authority of Buyer.
11. CLOSING.
11.1 TIME AND PLACE.
The consummation of the transactions contemplated by this
Agreement is herein referred to as the "CLOSING", and the date on which the
Closing occurs is herein referred to as the "CLOSING DATE". The Closing shall
take place at 10:00 a.m. on March 6, 1998 at the offices of Puilaetco, ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, or on such other date and at such
other place as Buyer and Sellers may determine by mutual agreement. If the
conditions specified in this Agreement have not been fulfilled
20
by that date, either Buyer or Sellers may postpone the Closing for a reasonably
necessary period or periods not exceeding an aggregate of 90 days by written
notice to the other party. Regardless of the actual time of the Closing, the
Closing shall be effective for all purposes as of the opening of business on the
Closing Date. Unless the context indicates otherwise, all references herein to
the "Closing Date" and the "Closing" shall mean the date on which and the time
at which the Closing is effective.
11.2 DELIVERIES AT CLOSING.
At the Closing, Buyer shall cause the cash portion of the
Purchase Price referred to in Paragraph 2.2 to be wired to the single account
designated by Sellers for all Sellers and, upon written confirmation from the
sending bank that said wire transfer has commenced (which written confirmation
shall include the confirmation number of such transfer), the parties shall take
the actions set forth below. Buyer shall also deliver to each Seller, Premier's
stock certificates representing such Seller's pro rata portion of the Purchase
Price to be paid in Premier Common Stock.
11.2.1 BUYER. Buyer shall deliver to Sellers the following
documents, instruments and other items, each dated, unless otherwise indicated,
as of the Closing Date:
(a) A certificate, executed by an executive officer of
Buyer, on behalf of Buyer, stating that, as of the Closing, all of the
representations and warranties of Buyer contained in this Agreement are
true and accurate in all material respects; and Buyer has duly performed
all obligations and covenants to be performed by them hereunder; and
(b) A copy of the resolutions of the Board of Directors of
Buyer approving the execution, delivery and performance of this Agreement,
certified by the Secretary or Assistant Secretary of Buyer.
11.2.2 SELLERS. At Closing Sellers shall deliver to Buyer the
following documents, instruments and other items, each dated, unless otherwise
indicated, as of the Closing Date:
(a) A certificate, executed by an executive officer of each
Seller, stating that, as of the Closing, all of the representations and
warranties of Sellers contained in this Agreement are true and accurate in
all material respects; and Sellers have duly performed all obligations and
covenants to be performed by it hereunder;
(b) An original copy of the resolutions of the Board of
Directors of each Seller approving the execution, delivery and performance
of this Agreement;
(c) The stock certificates representing the Shares;
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(d) Except for the Directors co-opted in accordance with
Paragraph 9.8 and for any other Director of the Company indicated by Buyer,
the resignation of each director of the Company and of the Subsidiaries,
dated as of the Closing Date; and
(e) A list of all powers of attorney, proxy or similar
authorizations given by the Company or any Subsidiary to any Person and in
effect on the Closing Date.
11.3 OTHER DOCUMENTS AND ACTIONS.
In addition to the documents and other items specified in
Paragraph 11.2, at the Closing, the parties shall execute and deliver, or cause
the appropriate parties to execute and deliver, the following documents, each
dated as of the Closing Date:
11.3.1 Generale Bank's release of the Pledge; and
11.3.2 Such other documents and instruments as may be
necessary to carry out the respective obligations of the parties under this
Agreement.
12. ADDITIONAL AGREEMENTS OF THE PARTIES.
The following provisions shall apply, and the following actions shall
be taken, prior to and subsequent to the Closing:
12.1 CONSENTS AND APPROVALS.
The parties hereto each will cooperate with one another and use
all reasonable efforts to prepare all necessary documentation to effect promptly
all necessary filings and to obtain all necessary permits, consents, approvals,
orders and authorizations of or any exemptions by all third parties and any
Governmental Entity necessary to consummate the transactions contemplated by
this Agreement. Each party will keep the other party apprised of the status of
any inquiries made of such party by any Governmental Entity or members of their
respective staffs with respect to this Agreement or the transactions
contemplated hereby or thereby.
12.2 FURTHER DOCUMENTATION OR ACTION.
From time to time, at the request of Buyer or of any Seller, as
the case may be, whether on or after the Closing and without further
consideration, the other parties shall, within a reasonable amount of time after
request is made hereunder, execute and deliver to the requesting party such
further instruments and take such other actions as may be necessary or
convenient to carry out the purposes or intent of this Agreement.
12.3 COOPERATION.
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After the Closing, upon request, each party shall, subject to
applicable Legal Requirements, contractual restrictions and the attorney-client
privilege, cooperate with the other in furnishing information, testimony and
other assistance in connection with any actions, audits, proceedings,
arrangements or disputes involving any of the parties hereto or their Affiliates
(other than in connection with disputes between the parties hereto) and based
upon contracts, arrangements or acts of the Company and its Subsidiaries which
were in effect or occurred prior to the Closing.
12.4 CONFIDENTIAL INFORMATION.
Subject to the requirements of any applicable law, order or
decree, at all times following the Closing, except with Buyer's prior written
consent, Sellers shall not, and shall use best efforts to cause its respective
Representatives not to, issue any public announcements or statements with
respect to, or otherwise disclose to any Person other than its Representatives,
the terms of, or any other information pertaining to, this Agreement or the
transactions contemplated hereby; PROVIDED, HOWEVER, the obligations of Sellers
under this Paragraph shall not apply to information which is ascertainable from
public or trade sources or published information or which is or becomes
generally available to the public other than as a result of a disclosure by
Sellers or their Representatives in violation of this Agreement.
12.5 PUBLIC ANNOUNCEMENTS.
The parties to this Agreement agree not to, and Sellers agree to
cause the Company not to, without the prior consent of the other parties hereto
(which shall not be unreasonably withheld), issue any press release or other
public statements with respects to this Agreement, the transactions contemplated
thereby or the Takeover Bid, except as maybe required by any applicable law or
regulation, Legal Requirement, court process or by obligation pursuant to any
listing agreement or rule of any stock exchange. In the latter case, prior to
the issuance of any press release or public statement the party making such
press release shall consult with the other parties to this Agreement regarding
the contents of any such press release or statement.
12.6 DISCLOSURE STATEMENTS.
The Sellers Disclosure Statement and the Buyer Disclosure
Statement shall be revised and updated as of the Closing Date by Sellers or
Buyer, as the case may be, to ensure that all schedules included therein shall
be true and complete in all material respects as of the Closing Date. All such
revisions must be satisfactory to Buyer, in the case of the Sellers Disclosure
Statement, and to Sellers, in the case of the Buyer Disclosure Statement. Buyer
shall not be deemed to have accepted as satisfactory any matters currently set
forth on or added to the Sellers Disclosure Statement after the date hereof
prior to its complete review of all information relating to such matters.
Sellers shall not be deemed to have accepted as satisfactory any matters
currently set forth on or added to the Buyer Disclosure Statement after the date
hereof prior to its complete review of all information relating to such matters
pursuant to Paragraph 6.2. Notwithstanding the provisions of this Paragraph, if
Buyer or Sellers proceed to close the transactions
23
contemplated hereby after the receipt of Sellers Disclosure Statement and Buyer
Disclosure Statement respectively, or any revisions to the Sellers Disclosure
Statement or to the Buyer Disclosure Statement, Buyer or Sellers, as applicable,
shall be deemed to have accepted as satisfactory the matters so set forth in the
Sellers Disclosure Statement or in the Buyer Disclosure Statament, or added to
the Sellers Disclosure Statement or to the Buyer Disclosure Statement, as the
case may be.
12.7 ACQUISITION PROPOSALS.
Neither Sellers nor their respective officers, directors,
employees, representatives or advisors will (and Sellers will cause the Company,
its officers, directors, employees, representatives or advisors not to),
formally or informally, directly or indirectly, (i) initiate, solicit or
encourage any inquiries or the submission of any proposal by any third party
that constitutes or is reasonably likely to lead to an Acquisition Proposal (as
defined below) or (ii) engage in negotiations or discussions with, or furnish
any information or data to any third party relating to an Acquisition Proposal.
For purposes of this agreement, (i) "Acquisition Proposal" shall
mean any bona fide proposal, whether in writing of otherwise, made by a third
party to effect an Acquisition, (ii) "Acquisition" shall mean the acquisition of
beneficial ownership of all of a material portion of the assets of, or any
material interest in, the Company (including its Subsidiaries) pursuant to a
merger, consolidation or other business combination, sale of shares of capital
stock, sale of assets, tender offer, exchange offer, joint venture, or other
similar transaction and (iii) "beneficial ownership" of a security includes any
person who directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise has or shares (x) voting power which
includes the power to vote, or to direct the voting of, such security and/or (y)
investment power, which includes the power to dispose, or to direct disposition
of, such security.
12.8 LOCKUP AGREEMENT.
Sellers agree, jointly and severally, not to sell, pledge, grant
any option, right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any shares of Premier Common Stock acquired pursuant to
this Agreement until the latter of June 6, 1998 or 41 days after the issuance of
such shares of Premier Common Stock, and then only pursuant to an effective
registration under the United States Securities Act of 1933 or any exemption
therefrom. During the foregoing period, Sellers agree that they shall not
acquire or maintain any "short position" or hedging transaction (including
"puts" and "calls") respecting any shares of Premier Common Stock, the effect of
which would be to reduce or shift the risk of ownership of the shares of Premier
Common Stock issued to Sellers pursuant to the terms hereof.
12.9 RESIGNATIONS.
Buyer shall, at Closing or as soon as possible thereafter, cause
a meeting of the shareholders or of the Board of Directors of the Company and of
each Subsidiary to be held for the purpose of accepting the resignations of the
directors whose
24
resignations will have been delivered to Buyer in accordance with Paragraph
11.2.2(d), cause the acceptance of such resignations, and cause any
publications, filings or registrations necessary to make such resignations fully
effective to be promptly made.
12.10 DISTRIBUTIONS OF PURCHASE PRICE.
Sellers agree not to distribute any portion of the Purchase Price
received by Sellers to its shareholders without obtaining from any such
distributee, for the benefit of Buyer, an agreement to be liable for the breach
of any representation, warranty, or covenant of the applicable Seller to the
extent of the amount so distributed.
13. SURVIVAL OF REPRESENTATIONS.
All statements contained in any schedule, statement, certificate or
other instrument delivered pursuant hereto by or on behalf of any party shall be
deemed to be representations and warranties made pursuant to this Agreement by
such party. Subject to the provisions of Paragraphs 14.4.1, 14.4.2 and 14.4.3,
all representations, warranties and agreements made by the parties shall survive
the Closing without limitation as to duration and any investigation made by or
on behalf of any party hereto.
14. INDEMNIFICATION.
14.1 BY SELLERS.
Subject to the further provisions of this Article 14, Sellers
shall each severally (in proportion to the number of Shares sold by each Seller
at Closing) indemnify, defend and hold harmless Buyer, Premier and their
respective officers and directors against any and all losses, liabilities,
claims, damages, costs and expenses (collectively the "DAMAGES"), insofar as
such Damages (or actions in respect thereof) are based upon or arise out of any
breach or non-fulfillment of any warranty, representation, covenant or agreement
made herein by Sellers. The indemnification obligations provided for in this
Paragraph shall be such party's sole remedy with respect to the breach of any
warranty, representation, covenant or agreement made by Sellers in this
Agreement and such indemnification shall be the several responsibility of each
Seller (in proportion to the number of Shares sold by each Seller at Closing),
and, without prejudice to Paragraph 14.3.4, they shall not have any right to
recover any portion of their liability from the Company or any Subsidiary,
whether by right of indemnification, contribution or otherwise; PROVIDED,
HOWEVER, that the foregoing shall not apply to limit the rights of Buyer
pursuant to Paragraph 16.15 (Specific Performance).
14.2 BY BUYER.
Subject to the further provisions of this Article 14, Buyer shall
indemnify and hold harmless Sellers and their respective officers and directors
against all Damages insofar as such Damages (or actions in respect thereof) are
based upon or arise out
25
of any breach of any warranty, representation, covenant or agreement made herein
by Buyer.
14.3 INDEMNIFICATION PROCEDURES.
14.3.1 NOTICE OF ASSERTED LIABILITY. Promptly after receipt
by any party hereto of notice of any assertion or commencement of any action,
proceeding or investigation by a third party that may result in Damages (an
"ASSERTED LIABILITY"), the party receiving such notice (the "INDEMNITEE") shall
give written notice (the "NOTICE") thereof to the indemnifying party or parties
(the "INDEMNITOR"). The Notice shall describe the Asserted Liability in
reasonable detail and, to the extent practicable, shall indicate the amount
(estimated, if necessary) of the Damages that have been or may be suffered by
Indemnitee. The failure so to notify Indemnitor shall not relieve it of any
liability that it may have to Indemnitee except to the extent that Indemnitor
demonstrates that the defense of such Asserted Liability is materially
prejudiced thereby.
14.3.2 OPPORTUNITY TO DEFEND. Indemnitor may elect to
compromise or defend, at its own expense and by its own counsel (subject to the
reasonable approval of Indemnitee which shall not be unreasonably withheld), any
Asserted Liability; PROVIDED, HOWEVER, that Indemnitor may not compromise or
settle any Asserted Liability without the consent of Indemnitee unless such
compromise or settlement requires no more than a monetary payment for which
Indemnitee and any other indemnifiable parties hereunder are fully indemnified
(and Indemnitor has deposited cash with Buyer in an amount equal to such
monetary payment) or involves other matters not binding upon Indemnitee and such
other indemnifiable parties. If Indemnitor elects to compromise or defend such
Asserted Liability, it shall within 30 days (or sooner, if the nature of the
Asserted Liability so requires) notify Indemnitee of its intent to do so with
counsel reasonably satisfactory to Indemnitee, and Indemnitee shall cooperate in
the compromise of, or defense against, such Asserted Liability. If Indemnitor
so elects, Indemnitor shall be obligated to defend such Asserted Liability and
pay all Damages incurred in such defense until either (a) Indemnitor and
Indemnitee agree otherwise, or (b) a court of competent jurisdiction finally
determines that Indemnitor does not have an obligation to indemnify Indemnitee.
If Indemnitor elects not to compromise or defend any Asserted Liability, fails
to notify Indemnitee of its election as provided herein or contests its
obligation to indemnify Indemnitee, Indemnitee shall have the absolute right to
pay, compromise or defend such Asserted Liability in respect of any Asserted
Liability for which Indemnitor may have an indemnification obligation hereunder,
without prejudice to any right Indemnitee may have hereunder. If Indemnitee
elects to pay, compromise or defend such Asserted Liability pursuant to the
foregoing provisions, all Damages incurred by Indemnitee in connection therewith
shall be paid by Indemnitor as incurred by Indemnitee unless Indemnitor contests
its obligation to indemnify Indemnitee, in which case Indemnitor shall pay or
reimburse Indemnitee for such Damages if and when it is finally determined that
Indemnitee is entitled to indemnification from Indemnitor hereunder. The party
which elects to compromise or defend any Asserted Liability pursuant to the
foregoing provisions shall control the matter subject to such provisions. In
any event, once Indemnitor elects to defend any Asserted Liability, Indemnitee
may participate, at its own expense from that point in time, in the defense of
any Asserted Liability. If any party
26
chooses to defend or participate in the defense of any Asserted Liability, it
shall have the right to receive from the other parties, subject to any
restrictions of applicable law or that may be necessary to preserve the
privilege of attorney-client communications, any books, records or other
documents within such other parties' control that are necessary or appropriate
for such defense.
14.3.3 REJECTION OF CLAIM. A party to this Agreement (the
"RECIPIENT") to which the other party (the "CLAIMANT") notifies a claim under
this Agreement on account of Damages which do not result from a claim to a third
party (a "DIRECT CLAIM") will have a period of 30 calendar days within which to
respond in writing to such Claim. If the Recipient does not respond within such
30 calendar day period, the Recipient will have been deemed to have rejected
such claim, in which event the Claimant will be free to pursue such remedies as
may be available to the Claimant subject to the terms and provisions of this
Agreement.
14.3.4 SUBSEQUENT RECOVERY. Indemnitee or Claimant shall or
shall cause any of its Affiliates (including, as the case may be, the Company or
any of its Subsidiaries) to reimburse to the Indemnitor or Recipient any amount
paid by such Indemnitor or Recipient to the extent that such amount is
subsequently recovered by or paid to such Indemnitee or Claimant or any of its
Affiliates by any third party (excluding under any insurance policy) as a result
of the same facts or matters which have given rise to the payment of the sum
paid by the Indemnitor or Recipient.
14.4 LIMITATIONS ON LIABILITY.
14.4.1 Sellers shall not be liable under this Agreement for
any breach of any warranty or representation contained in this Agreement, except
to the extent that the aggregate amount of the Damages with respect to all such
breaches of representations and warranties, MINUS the value of the favorable
outcome of any of the matters referred to in Schedule 14.4.1 (to the extent not
included in 1997 EBITDA), shall exceed an aggregate of BEF 100,000,000 (one
hundred million). In no event shall the aggregate liability of Sellers for any
breach of warranty or representation in this Agreement, after deduction of an
aggregate of BEF 100,000,000 (one hundred million) for such all breaches of
representations and warranties, exceed 50% (fifty per cent) of the Purchase
Price; PROVIDED, HOWEVER, notwithstanding the foregoing, that Buyer shall be
able to claim against Sellers for breaches of Paragraph 4.2. (Capitalization) up
to an amount equal to the Purchase Price (without application of the deduction
of BEF 100,000,000 set forth above), MINUS any amount paid to Buyer for other
breaches, so that the total liability of Sellers shall never exceed the Purchase
Price.
14.4.2 Sellers shall not be liable for any breach of any
representation or warranty contained herein or made by Sellers under or in
connection with this Agreement unless Buyer shall have given written notice to
Sellers of the basis of their claim within 12 months after the Closing;
PROVIDED, HOWEVER, notwithstanding the foregoing, that Buyer shall be able to
make a claim against Sellers for breaches of Paragraph 4.2. (Capitalization) at
any time.
27
14.4.3 Buyer shall not be liable for any breach of any
representation or warranty contained herein or made by Buyer under or in
connection with this Agreement unless Sellers shall have given written notice to
Buyer of the basis of their claim within 12 months after the Closing.
14.4.4 When computing the amount to be paid by an Indemnitor
hereunder, there shall be deducted an amount equal to any insurance proceeds or
tax benefits received by the Indemnitee. Without prejudice to Paragraph 16.9,
any indemnity payment pursuant to this Article 14 shall be treated for all tax
purposes as an adjustment to the Purchase Price, subject to Buyer's right to
recognize income as a consequence of the receipt or accrual of any indemnity
payment.
14.4.5 The limitations set forth in Paragraphs 14.4.1, 14.4.2
and 14.4.3 are expressly made inapplicable to any liability for breach or non-
fulfillment of any covenants or agreements made herein by the parties.
14.4.6 Nothing contained in this Article 14 shall relieve a
party from any liability based on fraudulent or intentional misrepresentation,
including, without limitation, the delivery by a party of any certificate which
contains any statements known by the party at the time of such delivery to be
untrue in any material respect.
14.4.7 No party to this Agreement shall be liable in respect
of any breach of any representation or warranty in this Agreement if, and to the
extent that, such breach (i) occurs as a result of any legislation or amendment
to existing legislation not in force as of the Closing Date, (ii) occurs as a
result of any voluntary act, omission, transaction or arrangement after the date
hereof of the other party hereto.
14.4.8 Sellers shall not be liable in respect of any breach of
any representation or warranty in this Agreement if, and to the extent that, a
provision has been made in the Company Financial Statements in a manner that
reduced the Purchase Price.
14.5 INTEREST.
If an Indemnitor or Recipient does not pay any Damages incurred
by an Indemnitee or Claimant for which it is entitled to indemnification
hereunder as and when such Damages are incurred by the Indemnitee, then any
amounts determined to be due from the Indemnitor or Recipient shall bear
interest from the date such amounts originally should have been paid at the rate
of 6% per annum.
15. TERMINATION.
15.1 Subject to the provisions of Article 11 relating to deferral of
the Closing Date, either Buyer, on the one hand, or Sellers, on the other hand,
may (if the parties seeking to terminate are not in material default or breach
of this Agreement)
28
forthwith terminate this Agreement on the Closing Date in accordance with the
following provisions:
(a) WITHOUT LIABILITY to any of them if a court of competent
jurisdiction or Governmental Entity, regulatory or
administrative agency or commission shall have issued an
order, decree, or ruling or taken any other action (which
order, decree, ruling or action the parties hereto shall use
their best efforts to lift), in each case permanently
restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement, and such order,
decree, ruling or other action shall have become final and
not appealable; PROVIDED, HOWEVER, if such action or
proceeding results from the negligent act or omission, or
the intentional malfeasance, of a party, then the provisions
of Paragraph 15.2 shall control; and
(b) WITHOUT PREJUDICE to the other rights or remedies which it
may have, if default shall be made by the other party hereto
in the observance or due and timely performance of any of
its covenants and agreements herein contained, or if there
shall have been any material breach by the other party of
any of the warranties and representations of such party
contained herein or in any document or certificate delivered
pursuant hereto and such breach shall not have been cured
within fifteen (15) days of the date of notice of default
served by the party claiming such material default or
breach, or if any condition precedent to its obligations
which is not in its control has not been satisfied or
waived.
15.2 Subject to the provisions of Article 11 relating to deferral of
the Closing Date, Buyer may forthwith terminate this Agreement at any time prior
to the Closing Date if its investigation referred to in Paragraph 6.2 has
revealed any event, condition, practice or other matter respecting the Company
or its Subsidiaries which, in the reasonable judgment of the Buyer adversely
affects the condition (financial or otherwise), assets, prospects, operations,
value or prospects of the Company and its Subsidiaries.
15.3 Notwithstanding any other provision of this Agreement, either
Buyer, on the one hand, or Sellers, on the other hand, may forthwith terminate
this Agreement if the Closing has not occurred on or prior to June 1, 1998;
provided however, that if the Closing has not occurred through the fault of any
party hereto, that party may not invoke this Paragraph 15.3.
16. GENERAL PROVISIONS.
29
16.1 NOTICES.
All notices, requests, demands, waivers, consents and other
communications hereunder shall be in writing and in English, shall be delivered
either in person, by telegraphic, facsimile or other electronic means (and in
such case with written confirmation sent by mail on the same day or the day
thereafter), by overnight air courier or by mail, and shall be deemed to have
been duly given and to have become effective (a) upon receipt if delivered in
person or by telegraphic, facsimile or other electronic means calculated to
arrive on any business day prior to 5:00 p.m., local time, or on the next
succeeding business day if delivered on a non-business day or after 5:00 p.m.,
local time, (b) one business day after having been delivered to an air courier
for overnight delivery, or (c) three business days after having been deposited
in the mails as certified or registered mail, return receipt requested, all fees
prepaid, directed to the parties or their assignees at the following address (or
at such other address as shall be given in writing by a party hereto):
If to Buyer, addressed to: Premier Parks, Inc.
▇▇▇ ▇.▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and to: Loeff ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇-▇) ▇▇▇-▇▇▇▇
If to Sellers, addressed to: Centrag ▇.▇.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
and to: ▇▇▇▇▇▇ N.V.
30
▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
Attn: Luc Florizoone
and to: Westkoi ▇.▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇▇▇ Florizoone
With a copy to: Puilaetco
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
1160 Bruxelles
Attn: Dominique de Ville
Facsimile: ▇▇-▇ ▇▇▇-▇▇▇▇
and to: ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attn: Pierre ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: ▇▇-▇ ▇▇▇-▇▇▇▇
16.2 AMENDMENT AND WAIVER.
The parties hereto may by mutual agreement in writing signed by
each party amend this Agreement in any respect. In addition, any party hereto
may in writing: (a) extend the time for the performance of any of the acts or
obligations of the other party; (b) waive any inaccuracies in the
representations or warranties of the other party contained in this Agreement or
in any document or certificate delivered pursuant hereto; (c) waive compliance
or performance by the other party with any of the covenants, agreements or
obligations of such party contained in this Agreement; and (d) waive the
satisfaction of any condition that is precedent to the performance by the party
so waiving of any of its obligations under this Agreement. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in an instrument in writing signed on behalf of such party. A waiver
by one party of the performance of any covenant, agreement, obligation,
condition, representation or warranty shall not be construed as a waiver of any
other covenant, agreement, obligation, condition, representation or warranty. A
waiver by any party of the performance of any act shall not constitute a waiver
of the performance of any other act or an identical act required to be performed
at a later date.
16.3 ASSIGNMENT; PARTIES BOUND AND BENEFITTED.
No party may assign any of its rights or delegate any of its
duties under this Agreement without the prior written consent of the other party
hereto;
31
PROVIDED, HOWEVER, Buyer may, in its sole discretion, assign any or all of its
rights under this Agreement to any of its Affiliates and may make an assignment
of its rights under this Agreement to any lender to Buyer or its Affiliates;
PROVIDED FURTHER, HOWEVER, that no such assignment shall relieve Buyer of any
obligation or liability hereunder. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their permitted successors and assigns. Except as otherwise specifically
provided herein, this Agreement does not create, and shall not be construed as
creating, any rights enforceable by any Person not a party to this Agreement.
16.4 SEVERABILITY.
The provisions of this Agreement are severable, and if any one or
more provisions may be determined to be judicially unenforceable, in whole or in
part, the remaining provisions, and any partially unenforceable provisions to
the extent enforceable, shall nevertheless be binding and enforceable.
16.5 ENTIRE UNDERSTANDING.
This Agreement and the other documents and instruments
specifically provided for or referred to in this Agreement contain the entire
understanding between the parties concerning the subject matter of this
Agreement and such other documents and instruments and supersede all prior
understandings and agreements, whether oral or written, between them
representing the subject matter hereof and thereof. There are no
representations, agreements, arrangements or understandings, oral or written,
between or among the parties hereto relating to the subject matter of this
Agreement and such other documents and instruments which are not fully expressed
herein or therein.
16.6 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
16.7 EXPENSES.
Each party shall bear and pay its own costs and expenses relating
to the transactions contemplated by, or the performance of or compliance with
any condition or covenant set forth in, this Agreement.
16.8 REMEDIES NOT EXCLUSIVE.
Except as specifically provided for elsewhere in this Agreement,
no remedy conferred by any of the specific provisions of this Agreement is
intended to be exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be
32
in addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute or otherwise. The election of any one or more
remedies by a party shall not, except as otherwise expressly provided for
herein, constitute a waiver of the right to pursue other available remedies.
16.9 TAX EFFECT.
No party to this Agreement has made nor is making any
representations to any other party to this Agreement concerning any of the tax
effects of the transactions provided for in this Agreement. No party to this
Agreement shall be liable for or in any way responsible to any other party to
this Agreement because of any tax effect resulting from the transactions
provided for in this Agreement.
16.10 DEFINITIONS.
As used in this Agreement, the terms set forth below shall
have the following meanings:
"AFFILIATE" of a specified Person means any Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with the Person specified and, in the
case of a natural person, includes the spouse, siblings, ancestors and lineal
descendants of such person and the spouses of the siblings, ancestors and lineal
descendants of such person. The term "control" means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a Person.
"GOVERNMENTAL ENTITY" means any court, governmental
department, commission, council, board, bureau, agency or other judicial,
administrative, regulatory, legislative or other instrumentality of Belgium or
of the European Union or of any foreign country, or any state, county,
municipality or local governmental body or political subdivision of or within
Belgium or any foreign country.
"LEGAL REQUIREMENTS" means (a) any and all laws, statutes,
codes, rules, regulations, ordinances, judgments, orders, writs, decrees,
requirements or determinations of any Governmental Entity, (b) to the extent not
covered by clause (a) immediately above, any and all requirements of permits,
licenses, certificates, authorizations, concessions, franchises or other
approvals granted by any Governmental Entity, and (c) any and all duties arising
under common law.
"LIENS" means any liens, encumbrances, mortgages, pledges,
covenants, conditions, restrictions, easements, encroachments, rights of way,
charges or other rights, claims or interests of any third party whatsoever.
33
"PERSON" or "PERSON" means an individual, a corporation, a
partnership, a limited liability company, an association, a trust or any other
entity or organization, including, without limitation, any Governmental Entity.
"REPRESENTATIVES" of a party means the respective directors,
officers, employees, representatives, consultants, lenders and advisors of the
party and its Affiliates.
"TO THE BEST KNOWLEDGE" and similar phrases referring to the
knowledge of a party mean the actual knowledge, or the knowledge that a Person
have after reasonable investigation, and inquiry, of such party or, in case of a
corporation or other legal entity, of such party's executive officers.
16.11 CAPTIONS.
The captions appearing at the beginning of the various
paragraphs of this Agreement are for convenience of reference only and shall not
be given any effect whatsoever in the construction or interpretation of this
Agreement.
16.12 NUMBER AND GENDER.
Terms used herein in any number or gender include other
numbers or genders, as the context may require.
16.13 ATTORNEYS' FEES.
If any court proceeding is brought under or in connection with
this Agreement, or any document, agreement, instrument or certificate delivered
under or pursuant to this Agreement, the prevailing party in such proceeding
(whether at trial or on appeal) shall be entitled to recover from the other
party all costs, expenses and reasonable attorneys' fees incidental to any such
proceeding. The term "prevailing party" as used herein shall mean the party in
whose favor a final judgment or award is entered in any such judicial
proceeding; PROVIDED, HOWEVER, that if such proceeding is resolved prior to a
final judgment or award on the merits, the party in whose favor the proceeding
is settled may by motion apply to the court for an award of the aforementioned
costs, fees and expenses, and may take judgement therefor.
16.14 CHOICE OF LAW AND JURISDICTION.
This Agreement shall be construed, interpreted and enforced in
accordance with the laws of Belgium without reference to Belgium's choice of law
rules. Any dispute arising in connection with this Agreement, its
interpretation, its validity or performance thereunder shall be submitted to the
exclusive jurisdiction of the courts in Brussels.
34
16.15 SPECIFIC PERFORMANCE. The parties recognize that if the
Sellers refuse to perform under the provisions of this Agreement, monetary
damages alone will not be adequate to compensate Buyer for its injury. Buyer
shall therefor be entitled, in addition to any other remedies that may be
available to obtain specific performance of the terms of this Agreement. If any
action is brought by Buyer to enforce this Agreement, Sellers shall waive the
defense that there is an adequate remedy at law.
16.16 NO RECOURSE. Notwithstanding the terms of provisions of this
Agreement, Sellers, on the one hand, Buyer, on the other hand, agree that
neither it nor any person acting on its behalf may assert any claims or cause or
action against any officer, director or shareholder of Sellers or Buyer, as the
case may be, in connection with or arising out of this Agreement or the
transactions contemplated hereby, except as set forth in Paragraph 12.10.
16.17 SET OFF RIGHTS. The Sellers agree that in the event that Buyer
or any of its Affiliates or their respective officers, directors, partners,
employees, agents or representatives asserts a claim for indemnification under
Article 14, which claim (upon final determination that such Indemnitee is
entitled to indemnification from Sellers) is not paid in full by Sellers (an
"UNPAID CLAIM") that Buyer shall be entitled to withhold the amount of the
Unpaid Claim (plus interest at 6%) from the next or any succeeding issuance of
shares of Premier Common Stock to Sellers under the terms of the Contingent
Value Rights. The number of shares of Premier Common Stock so withheld shall be
determined using the Relevant Price.
35
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
Buyer:
Premier Parks Inc.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Sellers:
Centrag S.A.
By: and
----------------------------
___________________________
Name:
--------------------------
___________________________
Title:
-------------------------
___________________________
▇▇▇▇▇▇ N.V.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Westkoi N.V.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
36
SCHEDULE 1
CURRENT SHARES
Centrag S.A. 547,045 shares
▇▇▇▇▇▇ ▇.▇. 73,526 shares
Westkoi S.A. 45,930 shares
TOTAL 666,501 SHARES
37
SCHEDULE 2.1
TOTAL BUDGETED CAPITAL EXPENSES FOR 1998
38
SCHEDULE 2.1
SALE OF FIXED ASSETS TO BE EFFECTED BETWEEN JANUARY 1, 1998 AND THE CLOSING DATE
39
SCHEDULE 4.1.4
BY-LAWS OF THE COMPANY AND OF ALL SUBSIDIARIES
40
SCHEDULE 4.3.1
SUBSIDIARIES
41
SCHEDULE 4.3.2
SHARES OF SUBSIDIARIES NOT OWNED BY THE COMPANY
42
SCHEDULE 4.5.1
AGREEMENTS AFFECTED BY THE TRANSACTION
43
SCHEDULE 4.6
CONTINGENT LIABILITIES
44
SCHEDULE 4.7
EVENTS OUT OF THE ORDINARY COURSE OF BUSINESS SINCE DECEMBER 31, 1996
45
SCHEDULE 4.8
CONTRACTS BETWEEN ANY SELLER AND THE COMPANY
46
SCHEDULE 4.10
LITIGATIONS
47
SCHEDULE 4.12
COMMISSIONS OR FINDER'S FEES
48
SCHEDULE 4.14
PATENTS, TRADE NAMES, TRADEMARK REGISTRATIONS AND APPLICATIONS, AND SERVICE
MARKS
49
SCHEDULE 14.4.1
CLAIMS BY THE COMPANY
50