UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
PREMIER PARKS INC.
----------------------------------
(formerly, The Tierco Group, Inc.)
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class of Securities)
886506
--------------------------------
(CUSIP Number)
Paul A. Biddelman
Hanseatic Corporation
450 Park Avenue, Suite 2302
New York, New York 10022
--------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
October 12, 1994
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(b)(3) or
(4), check the following box.
------
Check the following box if a fee is being paid with the statement.
------
(A fee is not required only if the reporting person: (a) has a
previous statement on file reporting beneficial ownership of more
than five percent of the class of securities described in Item 1;
and (2) has filed no amendment subsequent thereto reporting
beneficial ownership of five percent or less of such class.) (See
Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
<PAGE>
containing information which would alter disclosures provided in a
prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
<PAGE>
<PAGE>
CUSIP NO. 886506
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Hanseatic Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) X
-----
(b)
-----
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
-----
6 CITIZENSHIP OR PLACE OR ORGANIZATION
New York
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
6,444,296 (see footnote 1)
8 SHARED VOTING POWER
--
9 SOLE DISPOSITIVE POWER
6,444.296 (see footnote 1)
10 SHARED DISPOSITIVE POWER
--
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,444,296 (see footnote 1)
<PAGE>
<PAGE>
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.4% (see footnote 2)
14 TYPE OF REPORTING PERSON*
CO
- -----------------
(1) Includes 3,648,000 shares (the "Conversion Shares") issuable
upon conversion of 9.5% Senior Subordinated Convertible Note.
(2) Based upon an aggregate of 16,860,607 shares outstanding at
March 15, 1995, plus the Conversion Shares.
<PAGE>
<PAGE>
CUSIP NO. 886506
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Wolfgang Traber
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
-----
(b)
-----
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
-----
6 CITIZENSHIP OR PLACE OR ORGANIZATION
Germany
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
--
8 SHARED VOTING POWER
6,444,296 (see footnotes 1 and 2)
9 SOLE DISPOSITIVE POWER
--
10 SHARED DISPOSITIVE POWER
6,444,296 (see footnotes 1 and 2)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,444,296 (see footnotes 1 and 2)
<PAGE>
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
-----
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.4% (see footnote 3)
14 TYPE OF REPORTING PERSON
IN
- ---------------
(1) Represents shares beneficially owned by Hanseatic Corporation;
the undersigned holds in excess of a majority of the shares of
capital stock of Hanseatic Corporation.
(2) Includes 3,648,000 shares issuable upon conversion of 9.5%
Senior Subordinated Convertible Note held by Hanseatic
Corporation.
(3) Based upon an aggregate of 16,860,607 shares outstanding at
March 15, 1995, plus the Conversion Shares.
<PAGE>
<PAGE>
INTRODUCTORY STATEMENT
Pursuant to Reg. Section 240.13d-2, this Amendment No. 3 to
Schedule 13D discloses changes in the Statement on Schedule 13D
dated October 30, 1992, as amended by Amendment No. 1 thereto dated
March 8, 1993 and Amendment No. 2 thereto dated July 28, 1993
(together, the "Amended Statement on Schedule 13D"), filed jointly
by Hanseatic Corporation ("the "Stockholder") and Wolfgang Traber
("Traber"); and, pursuant to Reg. Section 232.101 (a)(2)(ii), this
Amendment No. 3 restates in its entirety the text of the Amended
Statement on Schedule 13D previously filed in paper format. No
person or entity responding hereunder shall be responsible for the
completeness or accuracy of any information contained herein with
respect to any other person or entity.
Item 1. Security and Issuer.
-------------------
This statement relates to shares of the common stock, $.01 par
value (the "Common Stock"), of Premier Parks Inc., a Delaware
corporation (the "Corporation"). The principal executive offices of
the Corporation are located at 11501 Northeast Expressway, Oklahoma
City, OK 73131.
Item 2. Identity and Background.
-----------------------
This statement is filed jointly, pursuant to Rule 13d-1(f)(1),
by the Stockholder and by Traber, who holds in excess of a majority
of the shares of capital stock of the Stockholder. The Stockholder,
whose principal business is investing, has its principal business
and offices at 450 Park Avenue, Suite 2302, New York, New York
10022. The names, citizenship,business or residence address and
principal occupation of Traber and of each executive officer and
director of the Stockholder is set forth in Annex 1 attached
hereto, which information is incorporated herein by reference. No
person or entity responding hereunder shall be responsible for the
completeness or accuracy of any information contained herein with
respect to any other person or entity.
During the last five years, neither the Stockholder nor
Traber, nor to the best of the knowledge of the Stockholder, any
executive officer, director or controlling person of the
Stockholder identified in Annex 1, has (a) been convicted in a
criminal proceeding (excluding traffic violations and similar
misdemeanors) or (b) been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction, and as
a result of which it or he was or is subject to a judgment, decree
or final order enjoining future violation of, or prohibiting or
mandating activities subject to, federal or state securities laws
or finding any violations with respect to such laws.
<PAGE>
Item 3. Source and Amount of Funds or
Other Consideration.
-----------------------------
The funds: (x) in the amount of $1,500,000 used by the
Stockholder in purchasing 1,500,000 shares of Common Stock on
October 30, 1992 previously reported, and (y) in the amount of
$4,560,000 advanced by the Stockholder to the Corporation on July
28, 1993 prusuant to the Corporation's previously reported 9.5%
Senior Subordinated Convertible Note (convertible into an aggregate
of 3,648,000 shares [the "Conversion Shares"] of Common Stock), and
(z) in the aggregate amount of $1,750,000, used by the Stockholder
in purchasing an aggregate of 1,296,296 shares (the "1994 Shares")
of Common Stock on, respectively, October 12, 1994 and November 17,
1994, as more fully described under Paragraph (c) of Item 5 herein,
were in each case provided by certain clients of the Stockholder
for whom the Stockholder invests on a discretionary basis.
Item 4. Purpose of Transaction.
----------------------
As previously reported by the undersigned, on March 8, 1993
(the "Note Closing") the Corporation issued to the Stockholder
$4,560,000 principal amount of the Corporation's 9.5% Senior
Subordinated Convertible Notes (collectively, the "Notes" and
individually, a "Note"), pursuant to a Convertible Note Purchase
Agreement dated March 3, 1993 (the "Note Purchase Agreement")
covering, in the aggregate, $7,000,000 principal amount of Notes
(including the Stockholder's Note). The Notes evidence amounts
borrowed by the Corporation from the holders thereof at a
supplemental closing held on July 28, 1993.
Under the provisions of the Note issued to the Stockholder,
the Stockholder may, at any time prior to maturity (which occurs on
the seventh anniversary thereof), convert the then outstanding
principal amount thereof into shares of Common Stock at a per share
price of $1.25 (subject to adjustment in accordance with the terms
of the Note). Accordingly, the Stockholder's Note is convertible
into 3,648,000 shares of Common Stock.
The Note Purchase Agreement provides that, as long as the Note
holders or their successors hold or have the right to acquire at
least 2,800,000 shares of Common Stock, the Corporation will use
its best efforts to take such action so that its board of directors
will include one member selected by the holders of a majority of
all shares issued or issuable under the Notes, unless any single
holder, together with its affiliates, shall then hold such majority
of shares and any officer, director, employee, agent or other
affiliate of such holder is then a member of the board of directors
of the Corporation. On December 14, 1992, Paul A. Biddelman, an
officer of the Stockholder (which holds a majority of the shares
issuable under the Notes) was elected to the board of directors of
the Corporation.
<PAGE>
Except as aforesaid, the Stockholder has acquired all
securities of the Corporation which it presently owns as an
investment in the performance of the Corporation, seeking
appreciation thereof through the efforts of current management of
the Corporation. The Stockholder intends to continue to review its
investment in the Corporation and to discuss with management the
Corporation's strategies, goals and operations, and the Stockholder
may in the future change its present course of action with a view
towards otherwise influencing the strategic goals and operations of
the Corporation, and, pursuant to its Note or otherwise, the
Stockholder may acquire additional shares of Common Stock. On the
other hand, the Stockholder may determine to dispose of all or a
portion of the Common Stock which it now owns or may hereafter
acquire. In reaching any conclusions as to the foregiong, the
Stockholder will take into account various factors, including the
Corporation's business and prospects, general economic conditions
and money and stock market conditions.
Pursuant to Rule 13d-4, any statements by Traber herein shall
not be construed as an admission that Traber is, for purposes of
Section 13(d) of 13(g) of the Securities Exchange Act of 1934 (the
"Exchange Act"), the beneficial owner of any securities of the
Corporation. Traber does not intend to execise any power to vote or
to direct the vote, or to dispose or to direct the disposition of
any securities of the Corporation that he may be deemed
beneficially to own except as determined by management of the
Stockholder.
Except as stated in response to this Item 4, neither the
Stockholder nor Traber have any plans or proposals which relate to
or would result in any other action specified in clauses (a)
through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
------------------------------------
(a) As of May 4, 1995, the Stockholder beneficially owned,
for purposes of Rule 13d-3 under the Exchange Act, 6,444,296 shares
of Common Stock (including the Conversion Shares), constituting, to
the best of the knowledge of the Stockholder, 31.4% of the issued
and outstanding shares of Common Stock. The foregoing calculation
is based upon an aggregate of 16,860,607 shares of Common Stock
outstanding at March 15, 1995, as reported by the Corporation in
its Annual Report on Form 10-K for the year ended December 31,
1994, plus the Conversion Shares.
Traber holds in excess of a majority of the shares of capital
stock of the Stockholder and, accordingly, may be deemed
beneficially to own the securities of the Corporation held by the
Stockholder. As disclosed by such persons to the Stockholder, none
of the executive officers or directors of the Stockholder set forth
on Annex 1 beneficially own any shares of the Common Stock.
<PAGE>
(b) All of the shares stated above as beneficially owned by
the Stockholder are held by the Stockholder with sole power to vote
or to direct the vote thereof, and with sole power to dispose or to
direct the disposition thereof. All securities of the Corporation
that may be deemed to be beneficially owned by Traber are held with
shared power to vote or to direct the vote thereof, and with shared
power to dispose or to direct the disposition thereof, with the
Stockholder.
(c) Pursuant to a privately negotiated Subscription Agreement
dated October 12, 1994 (the "1994 Subscription Agreement") accepted
by the Corporation from the Stockholder, on October 12, 1994 and
November 17, 1994 the Stockholder purchased 740,740 shares and
555,556 shares of the Common Stock, respectively, in each case at
a per share price of $1.35. Since the filing of the most recent
prior amendment to the Amended Statement on Schedule 13D, neither
the Stockholder nor Traber, nor any executive officer nor director
identified on Annex 1 to the Amended Statement on Schedule 13D
effected any other transaction in the Common Stock.
(d) Those clients of the Stockholder who provided funds for
the acquisition by the Stockholder of its investment in the
Corporation (including the Conversion Shares) have the right to
receive or the power to direct the receipt of dividends from, or
the proceeds from the sale of, such securities. No such client's
interest in such dividends or proceeds relates to more than five
percent of the outstanding Common Stock (including the Conversion
Shares), except for the interests, respectively, of Atalanta
Investments Ltd., a British Virgin Islands company, Atlantic
Security Bank, a Grand Cayman company, and Seabury Holdings Corp.,
a British Virgin Islands company.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
------------------------------------------------------
Pursuant to the subscription agreement dated October 29, 1992
(the "1992 Subscription Agreement") between the Corporation and the
Stockholder, the Corporation provided certain registration rights
under the Securities Act of 1933 (the "Securities Act") to the
Stockholder in respect of the 1992 Shares. A copy of the 1992
Subscription Agreement is annexed to the Amended Statement on
Schedule 13D and by this reference incorporated in its entirety in
response to this item.
The Stockholder and the Corporation have entered into the Note
Purchase Agreement, among other matters providing for the issuance
of the Corporation's Note to the Stockholder. A copy of the Note
Purchase Agremenet is annexed to the Amended Statement on Schedule
13D and by this reference incorporated in its entirety in response
to this item.
<PAGE>
A copy of the Note acquired by the Stockholder pursuant to the
Note Purchase Agreement, among other matters providing for the
conversion of the outstanding principal thereof into shares of
Common Stock, is annexed to the Amended Statement on Schedule 13D
and by this reference incorporated in its entirety in response to
this item.
Pursuant to the Note Purchase Agreement, the Corporation, the
Stockholder and the other Note holders have entered into a
registration rights agreement, among other matters providing for
the right to a demand registration commencing 90 days prior to the
second anniversary of the Note Closing and incidental registration
rights through the third anniversay of the maturity of the Notes.
A copy of such agremeent is annexed to the Amended Statement on
Schedule 13D and by this reference incorporated in its entirety in
response to this item.
Pursuant to the 1994 Subscription Agreement, the Corporation
agreed to extend to the shares of Common Stock purchased by the
Stockholder thereunder certain rights to a shelf registration under
the Securities Act created pursuant to the 1992 Subscription
Agreement. The 1994 Subscription Agreement also grants to the
Stockholder certain incidental registration rights during the
period prior to the effectiveness of such shelf registration
statement. A copy of the 1994 Subscription Agreement is annexed to
this statement and by this reference incorporated in its entirety
in response to this item.
Except as stated in response to this Item 6, neither the
Stockholder nor Traber, nor, to the best of the knowledge of the
Stockholder, any of the executive officers or directors listed on
Annex 1, is a party to any contract, arrangement, understanding or
relationship (legal or otherwise) with any person with respect to
any securities of the Corporation, including, but not limited to,
the transfer or voting of any such securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guaranties or
profits, divisions of profit or loss, or the giving or withholding
of proxies.
Item 7. Materials to be Filed as Exhibits.
---------------------------------
Exhibit A - Agreement pursuant to Rule 13d-1(f)(iii)
Exhibit B - Subscription Agreement dated October 29, 1992
between the Corporation and the Stockholder*
Exhibit C - Convertible Note Purchase Agreement dated March
3, 1993 among the Corporation, the Stockholder
and the other purchasers signatories thereto*
- -----------------
* Previously filed in paper format.
<PAGE>
Exhibit D - 9.5% Convertible Subordinated Note dated March 8,
1993 executed by the Corporation to Deltec Asset
Management Corporation, as custodian for the
Stockholder*
Exhibit E - Registration Rights Agreement dated March 8, 1993
among the Corporation, the Stockholder and the
other purchasers signatories thereto*
Exhibit F - Subscription Agreement dated October 12, 1994
between the Corporation and the Stockholder
- -----------------
* Previously filed in paper format.
<PAGE>
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of our knowledge and
belief, we certify that the information set forth in this statement
is true, complete and correct.
Dated: May 4, 1995 HANSEATIC CORPORATION
By s/Paul A. Biddelman
----------------------------
Paul A. Biddelman
Dated: May 4, 1995 s/Wolfgang Traber
------------------------------
Wolfgang Traber
<PAGE>
<PAGE>
<TABLE>
Annex 1
<CAPTION>
Principal
Name and Occupation,
Business or Relationship Employer and
Residence to Address of
Address Citizenship Stockholder Employer
- ------------ ----------- ------------ -----------
<S> <C> <C> <C>
Fernando Montero Peru President and President
Grand Bay Plaza Director Hanseatic Corporation
2665 S. Bayshore Drive Grand Bay Plaza
Suite 1101 2665 S. Bayshore Drive
Coconut Grove, FL 33133 Suite 1101
Coconut Grove, FL
33133
Robert K. Hamshaw United States Director Executive Vice
Alpha Export President
Services, Inc. Alpha Export
499 Park Avenue- Services, Inc.
17th Floor 499 Park Avenue-
New York, NY 10022 17th Floor
New York, NY 10022
Karl-Erbo Kageneck Germany Director Attorney
King & Spaulding King & Spaulding
745 Fifth Avenue 745 Fifth Avenue
New York, NY 10151 New York, NY 10151
Paul A. Biddelman United States Treasurer Treasurer
Hanseatic Corporation Hanseatic Corporation
450 Park Avenue 450 Park Avenue
Suite 2302 Suite 2302
New York, NY 10022 New York, NY 10022
Wolfgang Traber Germany Principal Private Investor
Hanseatic Corporation Stockholder Hanseatic Corporation
450 Park Avenue 450 Park Avenue
Suite 2302 Suite 2302
New York, NY 10022 New York, NY 10022
</TABLE>
<PAGE>
<PAGE>
INDEX TO EXHIBITS
Exhibit A - Agreement pursuant to
Rule 13d-1(f)(iii)
Exhibit B - Subscription Agreement dated October
29, 1992 between the Corporation and
the Stockholder*
Exhibit C - Convertible Note Purchase Agreement
dated March 3, 1993 among the Corporation,
the Stockholder and the other purchasers
signatories thereto*
Exhibit D - 9.5% Convertible Subordinated Note dated
March 8, 1993 executed by the Corporation
to Deltec Asset Management Corporation,
as custodian for the Stockholder*
Exhibit E - Registration Rights Agreement dated March
8, 1993 among the Corporation, the
Stockholder and the other purchasers
signatories thereto*
Exhibit F - Subscription Agreement dated October
12, 1994 between the Corporation and
the Stockholder
- ------------------
* Previously filed in paper format.
EXHIBIT A
Pursuant to Rule 13d-1(f)(l)(iii) promulgated by the
Securities and Exchange Commission, the undersigned agree that the
statement to which this Exhibit is attached is filed on their
behalf and in the capacities set out herein below.
Dated: May 4, 1995 HANSEATIC CORPORATION
By s/Paul A. Biddelman
---------------------
Paul A. Biddelman
Dated: May 4, 1995
s/Wolfgang Traber
-------------------------
Wolfgang Traber
EXHIBIT F
THE TIERCO GROUP, INC.
SUBSCRIPTION AGREEMENT
The Tierco Group, Inc.
122 East 42nd Street
New York, New York 10168
Attention: Mr. Kieran E. Burke,
Chairman of the Board
Gentlemen:
1. SUBSCRIPTION. The undersigned (the "Subscriber"),
intending to be legally bound, hereby irrevocably agrees to
purchase from The Tierco Group, Inc. (the "Company"), a Delaware
corporation, the number of shares of Common Stock, par value, $0.01
per share ("Common Stock"), of the Company (the "Shares") set forth
on the signature page hereof. This subscription is submitted to the
Company in accordance with and subject to the terms and conditions
described in this Subscription Agreement, relating to a placement
(the "Placement") to the Subscriber and certain other purchasers
(collectively, the "Purchasers") of up to 4,190,000 shares of
Common Stock (the "Placed Shares"). Of the Placed Shares, 485,437
Shares (the "Windcrest Shares") will be issued to Windcrest
Partners or its affiliates (collectively, "Windcrest") upon
conversion of indebtedness (the "Windcrest Indebtedness") owed by
the Company to Windcrest in the amount of $655,340. The purchase
price ("Purchase Price") of the Placed Shares shall be $1.35 per
Share.
2. CLOSING.
(a) Time and Place. The closing (the "Closing") of the
purchase and sale of the Shares contemplated by this Agreement
shall be held at the offices of Baer Marks & Upham, 805 Third
Avenue, New York, New York 10022, at 10:00 A.M. New York time on
October 12, 1994 or such later date selected by the Company (the
"Closing Date"), provided that, the Company shall have received on
or prior to the Closing Date subscription agreements, executed and
delivered by the Purchasers, in respect of at least 3,078,000
Placed Shares (including the Windcrest Shares). If the Closing does
not occur on October 12, 1994, the Company will give the Subscriber
at least two business days' prior written notice thereof.
Notwithstanding the foregoing, upon the request of the Subscriber,
the Company will defer to November 17, 1994 (the "Purchase Date"),
the purchase and sale of up to 555,556 Shares hereunder. Except as
otherwise provided herein, the subscription by the Subscriber shall
be irrevocable and shall survive the death or disability of the
Subscriber.
<PAGE>
(b) Delivery by Company. On the Closing Date or the
Purchase Date, as the case may be, against receipt of the Purchase
Price for the Shares being purchased on such date paid by the
Subscriber, the Company shall deliver to the Subscriber a share
certificate registered in the Subscriber's name and representing
such Shares, which certificate shall bear the legend set forth in
Section 4.7(d) hereof, together with any legends required under
applicable state securities laws.
(c) Payment of the Purchase Price by the Subscriber. On
or prior to the Closing Date or the Purchase Date, as the case may
be, the Subscriber shall pay the Purchase Price for the Shares
being purchased on such date by means of a bank wire transfer to
the Company (Boatman's First National Bank of Oklahoma, Oklahoma
City, ABA No. 103000017, credit to the account of The Tierco Group,
Inc., Acct No. 070101077850) or by the delivery to the Company of
a check payable to the Company. If bank wire transfer is utilized,
the Subscriber must complete the information called for on the
signature page hereof relating thereto.
3. ACCEPTANCE OF SUBSCRIPTION. The Subscriber understands
and agrees that the Company in its sole discretion reserves the
right to accept or reject this subscription and any other
subscription for the Placed Shares, in whole or in part, at any
time prior to the Closing Date, notwithstanding prior receipt by
the Subscriber of oral or written notice of acceptance. If this
subscription is rejected by the Company in whole or in part, the
Company shall promptly return all funds (or in the case of a
partial rejection, the portion of the funds representing the
Purchase Price of the rejected subscription) received from the
Subscriber. If the subscription is rejected in whole, this
Subscription Agreement shall thereafter be of no further force or
effect.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SUBSCRIBER.
The Subscriber hereby acknowledges, represents and warrants to, and
agrees with, the Company, as follows:
4.1 The Subscriber understands that the offering and
sale of the Placed Shares is intended to be exempt from
registration under the Securities Act of 1933, as amended (the
"Act"), by virtue of Section 4(2) of the Act and the provisions of
Regulation D promulgated thereunder, and in accordance therewith
and in furtherance thereof, the Subscriber represents and warrants
and agrees as follows: (a) The Subscriber and/or the Subscriber's
adviser(s) has/have received the Company's 1993 Annual Report to
Stockholders, the Company's Proxy Statement relating to its 1994
Annual Meeting of Stockholders and the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1994 (collectively, the
"Company Reports"), has/have carefully reviewed the information
contained therein, and the Subscriber has had access to the same
kind of information which would have been available in a
registration statement filed by the Company under the Act.
<PAGE>
(b) The Subscriber acknowledges that the Subscriber, the
Subscriber's attorney, accountant, or adviser(s) has/have had a
reasonable opportunity to inspect all documents, records and books
pertaining to this investment (including, without limitation, the
Company Reports).
(c) The Subscriber and/or the Subscriber's adviser(s)
has/have had a reasonable opportunity to ask questions and receive
answers from a person or persons acting on behalf of the Company
concerning the Placement of the Placed Shares and all such
questions have been answered to the full satisfaction of the
Subscriber.
(d) No oral or written information furnished to the
Subscriber or the Subscriber's adviser(s) in connection with the
Placement was in any way inconsistent with the information stated
in the Company Reports.
(e) The Subscriber is not subscribing for the Shares as
a result of or subsequent to any advertisement, article, notice or
other communication published in any newspaper, magazine, or
similar media or broadcast over television or radio, or presented
at any seminar or meeting, or any solicitation of a subscription by
any person other than a representative of the Company.
(f) If the Subscriber is a natural person, the
Subscriber has reached the age of majority in the jurisdiction in
which the Subscriber resides; the Subscriber has adequate means of
providing for the Subscriber's current financial needs and
contingencies, is able to bear the substantial economic risks of an
investment in the Shares for an indefinite period of time, has no
need for liquidity in such investment, and, at the present time,
could afford a complete loss of such investment.
(g) The Subscriber has such knowledge and experience in
financial, tax and business matters so as to enable the Subscriber
to utilize the information made available to the Subscriber in
connection with the Placement to evaluate the merits and risks of
an investment in the Shares, and to make an informed investment
decision with respect thereto.
(h) The Subscriber is not relying on the Company or any
agent of the Company with respect to the tax and other economic
considerations of an investment in the Shares.
(i) The Subscriber will not sell or otherwise transfer
the Shares without registration under the Act and applicable state
securities laws, or pursuant to an exemption therefrom. The Shares
have not been registered under the Act or under the securities laws
of any state and, except as provided in Section 6, the Company will
be under no obligation to so register the Shares. The Subscriber
represents that the Subscriber is purchasing the Shares for the
Subscriber's own account, for investment and not with a view to
<PAGE>
resale or distribution except in compliance with the Act and
applicable state securities laws.
(j) The Subscriber recognizes that investment in the
Shares involves substantial risks, including the risk of loss of
the entire amount of such investment, and has taken full cognizance
of and understands all of the risks related to the purchase of the
Shares.
4.2 The Subscriber is an "accredited investor" as that
term is defined in Regulation D under the Act inasmuch as the
Subscriber meets the requirements of one or more of the
subparagraphs listed in Exhibit A hereto as of the date of this
Subscription Agreement, and if there is any material change in such
status prior to the sale of the Shares, the Subscriber will
immediately notify the Company in writing.
4.3 The Subscriber's overall commitment to investments
which are not readily marketable is reasonable in relation to the
Subscriber's net worth.
4.4 The Subscriber hereby agrees to provide such
information and to execute and deliver such documents as may
reasonably be necessary to comply with any and all laws to which
the Company is subject, including without limitation, such
additional information as the Company may deem appropriate with
regard to the Subscriber's suitability.
4.5 The execution, delivery and performance of this
Agreement by the Subscriber (i) will not constitute a default under
or conflict with any agreement or instrument to which the
Subscriber is a party or by which it or its assets are bound, (ii)
will not conflict with or violate any order, judgment, decree,
statute, ordinance or regulation applicable to the Subscriber
(including, without limitation, any applicable laws relating to
permissible legal investments) and (iii) do not require the consent
of any person or entity. This Agreement has been duly authorized,
executed and delivered by the Subscriber and constitutes the valid
and binding agreement of the Subscriber enforceable against it in
accordance with its terms.
4.6 The Subscriber has not retained, or otherwise
entered into any agreement or understanding with, any broker or
finder in connection with the purchase of Shares by the Subscriber,
and the Company will not incur any liability for any fee,
commission or other compensation on account of any such retention,
agreement or understanding by the Subscriber.
4.7 The Subscriber acknowledges:
(a) In making an investment decision, the Subscriber has
relied on the Subscriber's own examination of the Company and the
terms of the Placement, including the merits and risks involved.
<PAGE>
The Shares have not been recommended by any federal or state
securities commission or regulatory authority. Furthermore, the
foregoing authorities have not confirmed the accuracy or determined
the adequacy of the Company Reports or this Agreement. Any
representation to the contrary is a criminal offense.
(b) The Subscriber, if executing this Agreement in a
representative or fiduciary capacity, has full power and authority
to execute and deliver this Agreement in such capacity and on
behalf of the subscribing individual, ward, partnership, trust,
estate, corporation, or other entity for whom the subscriber is
executing this Agreement, and such individual, ward, partnership,
trust, estate, corporation, or other entity has full right and
power to enter into this Agreement and make an investment in the
Shares.
(c) The representations, warranties and agreements of
the Subscriber contained herein shall be true and correct in all
material respects on and as of the Closing Date of the sale of the
Shares as if made on and as of such date and shall survive the
execution and delivery of this Agreement and the purchase of the
Shares.
(d) The Subscriber understands that the certificate
representing the Shares shall bear a legend in substantially the
following form, together with any legend required by applicable
state securities law, and the Subscriber shall not transfer any or
all of the Shares or any interest therein, except in accordance
with the terms of such legends:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act") or applicable state securities laws, and may be
offered, sold or otherwise transferred only if so registered
under the Act and applicable state securities laws or if the
holder has delivered to the Company an opinion of counsel,
which counsel and opinion shall be satisfactory to the
Company, that an exemption from such registration is
available."
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to the Subscriber as follows:
(a) Each of the Company and Tierco Maryland, Inc.,
Frontier City Properties, Inc., Tierco Water Park, Inc. and
Frontier City Partners Limited Partnership (individually, a
"Subsidiary" and collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation or other
business entity in good standing under the laws of its jurisdiction
of organization. The Subsidiaries own and operate the themed
amusement and water parks described in the Company Reports. Each of
the Company and its Subsidiaries is duly qualified and in good
standing in each jurisdiction in which the character or location of
<PAGE>
its properties or the nature or conduct of its business makes such
qualification necessary, except where the failure to be so
qualified or in good standing would not, in the aggregate, have a
material adverse effect on the financial condition of the Company
and its Subsidiaries, taken as a whole. Each of the Company and its
Subsidiaries has all requisite power and authority, and all
material consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits of and from all
public, regulatory or governmental agencies and bodies, to own,
lease and operate its properties and conduct its business as now
being conducted.
(b) Neither the Company nor any Subsidiary is in
violation of its charter or by-laws (or other organizational
documents) or in default in any material respect under any
indenture, mortgage, deed of trust, note, bank loan or credit
agreement, or any other agreement or instrument which is material
to the Company and its Subsidiaries, taken as a whole, to which the
Company or any Subsidiary is a party or by which they are bound.
Each of the Company and its Subsidiaries is in compliance with all
laws, rules, regulations, judgments, orders and decrees of any
government or governmental agency or instrumentality applicable to
its business and properties, except where the failure to so comply
would not, in the aggregate, have a material adverse effect upon
the financial condition of the Company and its Subsidiaries, taken
as a whole.
(c) All of the outstanding shares of Common Stock have
been duly authorized and are validly issued and outstanding and are
fully paid and non-assessable, free of preemptive rights. On the
date hereof, there are outstanding 13,276,097 shares of Common
Stock and securities convertible into or exercisable for 6,731,196
shares of Common Stock. Prior to the Closing Date, the Company will
not issue any shares of Common Stock or securities convertible into
or exercisable for such shares, other than the Placed Shares.
(d) All of the issued and outstanding capital stock (or
other equity interest) of each Subsidiary has been duly and validly
issued and is fully paid and non-assessable and is owned directly
or indirectly by the Company. There are no outstanding warrants or
options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock (or other equity interests) of any
Subsidiary.
(e) Each of the Company and its Subsidiaries owns
outright, in fee simple, title to the real property purported to be
owned by it, free and clear of all liens, mortgages, charges or
encumbrances of any nature, except security interests granted in
connection with the acquisition of such property or financing
transactions which do not interfere with or impair the present use
of such property in the normal conduct of the business of the
Company or such Subsidiary.
<PAGE>
(f) Subsequent to June 30, 1994, and except as disclosed
in the Company Reports, there has not occurred any material adverse
change in the condition (financial or otherwise), earnings or
business prospects of the Company and its Subsidiaries, taken as
whole.
(g) There is no action, suit or proceeding before or by
any court or governmental agency now pending, or to the knowledge
of the Company threatened, against the Company or any Subsidiary
that the Company reasonably believes would result in a material
adverse change in the condition (financial or otherwise), earnings
or business prospects of the Company and its Subsidiaries, taken as
a whole, or that would materially and adversely affect the
consummation of the transactions contemplated by this Agreement.
(h) The financial statements contained in the Company
reports present fairly the financial condition and results of
operations of the Company and its subsidiaries as of the respective
dates and for the respective periods indicated therein and have
been prepared in accordance with generally accepted accounting
principles applied on a consistent basis.
(i) The Company has full corporate power and authority
to enter into this Agreement and to issue and sell the Placed
Shares on the terms and conditions set forth herein. The execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly
authorized and approved by all necessary corporate action on the
part of the Company.
(j) The Company has previously furnished the Subscriber
with true and complete copies of the Company Reports. As of their
respective dates, the Company Reports did not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(k) The Shares, when issued, delivered and paid for in
accordance with the terms hereof, will be duly and validly issued,
fully paid and non-assessable and shall be free and clear of all
liens, claims and encumbrances.
(l) The execution, delivery and performance of this
Agreement by the Company (i) will not constitute a default under or
conflict with the Company's charter or by laws or any agreement or
other instrument to which the Company or any Subsidiary is a party
or by which the Company or any Subsidiary is bound, (ii) will not
conflict with or violate any order, judgment, decree, statute,
ordinance or regulation applicable to the Company or any Subsidiary
and (iii) do not require the consent of any person or entity, other
than those that will have been obtained prior to the Closing Date.
<PAGE>
<PAGE>
(m) This Agreement has been duly authorized, executed
and delivered by the Company and constitutes the valid and binding
obligation of the Company enforceable against it in accordance with
its terms.
The representation, warranties and agreements of the
Company contained herein shall be true and correct in all material
respects on and as of the Closing Date of the sale of the Shares as
if made on and as of such date and shall survive the execution and
delivery of this Agreement and the sale of the Shares.
6. REGISTRATION RIGHTS.
6.1 Shelf Registration
(a) Reference is made to the Subscription Agreements,
dated as of October 30, 1992 (the "Prior Agreements") between the
Company and the purchasers (the "Prior Purchasers") of the
11,000,000 shares of Common Stock (the "Prior Shares") issued
pursuant to the Prior Agreements. Pursuant to Section 6.1 of the
Prior Agreements, the Company is required to prepare and file with
the Securities and Exchange Commission (the "SEC") on the terms and
conditions specified therein a registration statement (the "Shelf
Registration Statement") relating to the Prior Shares. The Company
hereby agrees to include in such Shelf Registration Statement the
Placed Shares sold hereunder. Prior to the Closing Date and as a
condition precedent to the Closing, the Company shall have received
the written consent of the holders of a majority of the Prior
Shares (a) permitting the inclusion of the Placed Shares in such
Shelf Registration Statement and (b) agreeing that the terms
"Offered Shares" and "Holders," respectively, as defined in the
Prior Agreements shall for purposes of Section 6.1 and Sections
6.3-6.7 of the Prior Agreements (to the extent they relate to the
Shelf Registration Statement) be deemed to include the Placed
Shares and the Holders (as defined herein). If the Subscriber is
also a Prior Purchaser, the execution and delivery of this
Subscription Agreement shall also constitute the Subscriber's
written consent referred to in the foregoing sentence. As used in
this Agreement, the term "Holders" shall mean the Purchasers and,
to the extent provided in Section 6.6 hereof, their transferees or
assignees and, when used with respect to the Shelf Registration
Statement, shall also include the Prior Purchasers.
(b) Neither the Company nor any of its securityholders
(other than the Holders) shall have the right to include any of the
Company's securities in the Shelf Registration Statement referred
to in Section 6.1(a).
(c) If any of the Placed Shares and Prior Shares
registered pursuant to the Shelf Registration Statement are to be
sold in one or more underwritten offerings, and the managing
underwriters advise in writing the Company and the Holders that in
their opinion the number of Placed Shares and Prior Shares proposed
<PAGE>
to be sold in such offering exceeds the number of securities which
can be sold in such offering, there shall be included in such
underwritten offering the dollar amount and/or number of Placed
Shares and Prior Shares which in the opinion of such underwriters
can be so sold, and such securities shall be allocated pro rata
among the Holders on the basis of the number of the Placed Shares
and Prior Shares to be so sold.
(d) If any of the Placed Shares and Prior Shares covered
by the Shelf Registration Statement are to be sold in an
underwritten offering, or in a best efforts underwritten offering,
the investment banker or investment bankers and managing
underwriter or managing underwriters that will administer the
offering will be selected by the Holders of a majority of the
Placed Shares and Prior Shares included in such offering; provided
that such investment bankers and managing underwriters must be
satisfactory to the Company.
6.2 Piggyback Registration. (a) If, at any time prior to
the effectiveness of the Shelf Registration Statement, the Company
proposes to register and sell on its behalf any shares of its
Common Stock under the Act (other than in connection with a merger,
consolidation or similar plan of acquisition or pursuant to Forms
S-4 or S-8 or comparable or successor registration forms) it will
give written notice thereof at least 30 days prior to the filing of
each such registration statement to the Holders. If any Holder
notifies the Company in writing 20 days after receipt of any such
notice of its desire to include Placed Shares in such proposed
registration statement, the Company shall afford such Holder the
opportunity to have its Placed Shares registered pursuant to such
registration statement.
(b) Notwithstanding the foregoing, if such registration
statement relates to an underwritten offering, the Company shall
not be required under this Section 6.2 to include any Placed Shares
of any Holder who does not accept the terms of the underwriting as
agreed to by the Company and the underwriters selected by it, and
then only in such quantity as will not (in the opinion of
underwriters) adversely affect the success of the offering by the
Company. If the total amount of securities (including Placed
Shares) to be included in such registration statement exceeds the
amount that the underwriters reasonably believe compatible with the
success of the offering, then the Company shall be required to
include in the offering:
(i) first, all shares of Common Stock the Company
proposes to sell; and
(ii) second, subject to the provisions of the Prior
Agreements, the Placed Shares and such other shares of Common
Stock requested to be included in such registration in excess
of the shares the Company proposes to sell which, in the
opinion of such underwriters, can be sold (allocated pro rata
<PAGE>
among the Holders and the holders of such other shares of
Common Stock on the basis of the number of shares requested to
be included therein by each such Holder and holder).
(c) Notwithstanding any provision of this Section 6, the
Company shall have the right at any time after it shall have given
written notice pursuant to this Section 6.2 (irrespective of
whether a written request for inclusion of any Placed Shares shall
have been made) to elect not to file any such proposed registration
statement, or to withdraw the same after the filing but prior to
the effective date thereof.
6.3 Registration Procedures. In connection with any
registration of Placed Shares under Section 6.1 or 6.2 the Company
agrees as follows:
(a) before filing a registration statement (the
"Registration Statement") or a prospectus (the "Prospectus") or any
amendments or supplements thereto (excluding documents incorporated
by reference), furnish to the Holders and the underwriters, if any,
copies of all such documents proposed to be filed;
(b) in the case of a registration pursuant to Section
6.1, (i) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Shelf Registration Statement effective for
the period set forth in Section 6.1(a) of the Prior Agreements,
(ii) cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Act, and (iii) otherwise comply with the
provisions of the Act applicable to it in connection with the offer
and sale of the Placed Shares pursuant to the Shelf Registration
Statement during the period referred to in Section 6.1(a) of the
Prior Agreements in accordance with the intended methods of
disposition by the Holders set forth in such Registration Statement
or supplement to the Prospectus;
(c) notify the Holders of Placed Shares being registered
and the managing underwriters, if any, promptly, and (if requested
by any such person) confirm such advice in writing (1) when the
Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to the Registration Statement or
any post effective amendment, when the same has become effective,
(2) of any request by the SEC for amendments or supplements to the
Registration Statement or the Prospectus or for additional
information, (3) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, (4) if at any time
the representations and warranties of the Company contemplated by
paragraph (j) below cease to be true and correct, (5) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Placed Shares for sale in
any jurisdiction or the initiation or threatening of any proceeding
<PAGE>
for such purpose, and (6) of the happening of any event which makes
any statement made in the Registration Statement, the Prospectus or
any document incorporated therein by reference untrue in any
material respect or which requires the making of any changes in the
Registration Statement, the Prospectus or any document incorporated
therein by reference in order to make the statements therein not
misleading in any material respect;
(d) make reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration
Statement at the earliest possible moment;
(e) if requested by the managing underwriters or the
Holders of a majority of the Placed Shares being sold, incorporate
in a Prospectus supplement or post-effective amendment such
information as the managing underwriters or the Holders of a
majority of the Placed Shares being sold agree should be included
therein relating to the distribution of the Placed Shares,
including, without limitation, with respect to the number of Placed
Shares being sold to such underwriters, the purchase price being
paid therefor by such underwriters and with respect to any other
terms of the underwritten offering of the Placed Shares to be sold
in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such Prospectus supplement or post-
effective amendment;
(f) furnish to each Holder of the Placed Shares being
registered and each managing underwriter, without charge, at least
one signed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements
and schedules and all documents incorporated therein by reference;
(g) deliver to each Holder of Placed Shares being
registered and the underwriters, if any, without charge, as many
copies of the Prospectus and any amendment or supplement thereto as
such persons may reasonably request; the Company consents to the
use of the Prospectus or any amendment or supplement thereto by
each of the Holders and the underwriters, if any, in connection
with the offering and sale of the Placed Shares covered by the
Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Placed Shares, use
reasonable efforts to register or qualify, and to cooperate with
the Holders, the underwriters, if any, and their respective counsel
in connection with the registration or qualification of, such
Shares for offer and sale under the securities or blue sky of such
jurisdictions as any such Holder or underwriter reasonably requests
in writing; provided that the Company will not be required to
qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action which would subject it
to general service of process in any such jurisdiction where it is
not then so subject;
<PAGE>
(i) upon the occurrence of any event contemplated by
paragraph (c)(6) above, prepare a post-effective amendment to the
Registration Statement and/or a supplement to the Prospectus and/or
an amendment to any document incorporated therein by reference or
file any other required document so that, as thereafter delivered
to the purchasers of the Placed Shares, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
misleading;
(j) enter into such agreements (including an
underwriting agreement) in order to expedite or facilitate the
disposition of the Placed Shares and in such connection, whether or
not an underwriting agreement is entered into and whether or not
the registration is an underwritten registration (1) make such
representations and warranties to the Holders of Placed Shares
being registered and the underwriters, if any, in form, substance
and scope as are customarily made by issuers to underwriters in
primary underwritten offerings and confirm the accuracy of the same
if and when requested; (2) obtain opinions of counsel to the
Company and updates thereof addressed to each such Holders and the
underwriters, if any, covering the matters customary in
underwritten primary offerings; (3) obtain "cold comfort" letters
and updates thereof from the Company's independent certified public
accountants addressed to such Holders and the underwriters, if any,
such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters to underwriters
in connection with primary underwritten offerings; (4) if an
underwriting agreement is entered into, the same shall set forth
indemnification and contribution provisions and procedures
substantially equivalent to those contained in Section 6.5 hereof
with respect to all parties to be indemnified pursuant to said
Section. The above shall be done at each closing under such
underwriting or similar agreement; and
(k) use its best efforts to list the Placed Shares on
the securities exchange on which the Company's Common Stock is then
listed, if any.
The Company may require each Holder to furnish to the Company
such information regarding the distribution of the Placed Shares as
the Company may from time to time reasonably request in writing.
Each Holder agrees by acquisition of such Placed Shares that,
upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 6.3(i) hereof, such Holder
will forthwith discontinue disposition of Placed Shares pursuant to
the Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by
Section 6.3(i) hereof, or until it is advised in writing by the
Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are
incorporated by reference in the Prospectus, and, if so directed by
<PAGE>
the Company, each Holder will deliver to the Company all copies,
other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Placed Shares at the time of
receipt of such notice.
6.4 Registration Expenses.
Except as otherwise provided below, all expenses incident
to the Company's performance of or compliance with this Section 6,
including, without limitation, all registration and filing fees,
including with respect to filings required to be made with the
National Association of Securities Dealers, fees and expenses of
compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for the underwriters
in connection with blue sky qualifications of the Placed Shares
under the laws of such jurisdictions as the managing underwriters
may designate), printing expenses, mailing and delivery expenses,
and fees and disbursements of counsel for the Company, and of all
independent certified public accountants (including the expenses of
any "cold comfort" letters required by or incident to such
performance) will be borne by the Company. The Company shall not be
liable for any discounts, commissions, selling fees of or other
payments to, underwriters, selling brokers or similar persons
relating to the distribution of the Placed Shares or the fees and
expenses of counsel for any Holder or, except as provided above,
any underwriter. The Company shall not be liable for any stock
transfer taxes in connection with any resale of Placed Shares by a
Holder.
6.5 Indemnification.
(a) The Company will indemnify and hold each Holder,
each underwriter involved in the offering of Placed Shares pursuant
to a Registration Statement, and each person who controls any such
holder or any such underwriter within the meaning of Section 15 of
the Act or Section 20 of the Securities Exchange Act of 1934 (the
"1934 Act") (each such Holder, each such underwriter and each such
controlling person being referred to as an "Indemnified Person")
harmless from and against any and all losses, claims, damages,
liabilities and expenses arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or arising out of or based upon
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which
they were made, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue
statement or omission or allegation thereof based upon information
furnished in writing to the Company by such Indemnified Person
expressly for use herein. Notwithstanding the foregoing, the
Company shall not be obligated to so indemnify any such Holder,
underwriter or controlling person with respect to any loss, claim,
<PAGE>
damage, liability or expense arising out of the failure by such
Holder or underwriter to comply with the prospectus delivery
requirements under the Act and the rules and regulations
promulgated thereunder.
(b) If any action or proceeding (including any
governmental investigation) shall be brought, threatened or
asserted against any Indemnified Person in respect of which
indemnity may be sought from the Company, such Indemnified Person
shall promptly notify the Company in writing, and the Company shall
assume the defense thereof, including employment of counsel and the
payment of all expenses related thereto. Any such Indemnified
Person shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Company has agreed to pay such
fees and expenses; or (ii) the Company shall have failed to assume
the defense of such action or proceeding and employ counsel in such
action or proceeding; or (iii) the named parties to any such action
or proceeding (including any impleaded parties) include both such
Indemnified Person and the Company, and such Indemnified Person
shall have been advised by counsel that there may be one or more
legal defenses available to such Indemnified Person which are
different from or additional to those available to the Company (in
which case, if such Indemnified Person notifies the Company in
writing that it elects to employ separate counsel at the expense of
the Company, the Company will not have the right to assume the
defense of such action or proceeding on behalf of such Indemnified
Person); provided, however, that the Company will not, in
connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys at any time for all such Indemnified
Persons, which firm shall be designated in writing by a majority in
interest of such Indemnified Persons. The Company shall not be
liable for any default judgment caused by any Indemnified Person or
settlement of any such action or proceeding or confession of
judgment without its prior written consent, but if settled with its
written consent, or if there be a final judgment (other than such
default judgment) for the plaintiff in any such action or
proceeding, the Company agrees to indemnify and hold harmless such
Indemnified Person from and against any loss or liability by reason
of such settlement or judgment. If the Company agrees to a
settlement of an action or proceeding against an Indemnified Person
which does not involve any finding or admission of liability or
wrongdoing on the part of the Indemnified Person and stands ready,
willing and able to pay such settlement and the Indemnified Person
refuses to settle, then the Indemnified Person shall continue the
defense at its own expense and the Company shall be responsible to
indemnify only the lesser of the amount of the settlement accepted
by the Company or the cost of the final disposition of the claim.
<PAGE>
(c) Each Holder agrees to indemnify and hold harmless
the Company, its directors and officers, and each person, if any,
who controls the Company within the meaning of either Section 15 of
the Act or Section 20 of the 1934 Act, to the same extent as the
indemnity from the Company to each Indemnified Person set forth in
Section 6.5(a), but only (i) with respect to untrue statements,
alleged untrue statements, omissions or alleged omissions relating
to such Holder or an Indemnified Person who is such by reason of
such person's relationship to such Holder, furnished in writing by
such Holder or such person to the Company expressly for use in the
Registration Statement or the Prospectus, or any amendment or
supplement thereto and (ii) with respect to any failure by such
Holder to comply with the prospectus delivery requirements under
the Act and the rules and regulations thereunder. In case any
action or proceeding shall be brought against the Company or its
officers or directors or any such controlling person in respect of
which indemnity may be sought against a Holder under the provisions
of this Section 6.5(c), such Holder shall have the rights and
duties given to the Company and each of the Company or its
directors or its officers or its controlling persons shall have the
rights and duties given to each Holder and other Indemnified
Persons, under the terms of Section 6.5(b) above.
(d) If the indemnification provided for under Section
6.5(a) or Section 6.5(c) hereof is unavailable to an indemnified
party thereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the
relative benefits to the Company, on the one hand, and the Holders
on the other of the transactions contemplated by the Registration
Statement, the relative fault of the Company on the one hand and of
the Holders on the other in connection with the statements or
omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand
and of the Holders on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material
fact relates to information supplied by the Company on the one hand
or by such Holders on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. No person guilty of fraudulent
misrepresentation (within the meaning of Subsection 11(f) of the
Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
6.6 Assignment of Registration Rights. The rights to
cause the Company to register Placed Shares pursuant to this
Section 6 may be assigned by a Holder to a transferee or assignee
of Placed Shares; provided that (a) the Company is furnished with
<PAGE>
written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration
rights are being assigned; and (b) such assignment shall be
effective only if, immediately following such transfer, the further
disposition of such securities by the transferee or assignee is
restricted under the Act.
6.7 Amendment of Registration Rights. Any provision of
this Section 6 may be amended and the observance thereof may be
waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of
the Company and the Holders of a majority of the Placed Shares and,
in the case of the Shelf Registration Statement, the Prior Shares.
Any amendment or waiver effected in accordance with this Section
6.7 shall be binding upon each Holder of any Placed Shares
purchased under this Agreement at the time outstanding, each future
holder of all such Shares and the Company.
7. Other Agreements of Company. Promptly following the
filing thereof with the SEC, the Company shall deliver to the
Subscriber a copy of each of the Company's Quarterly Reports on
Form 10-Q.
8. MISCELLANEOUS.
(a) Cooperation. Subject to the terms and conditions
herein provided, each of the parties hereto shall use reasonable
efforts to take, or cause to be taken, such action, to execute and
deliver, or cause to be executed and delivered, such additional
documents and instruments and to do, or cause to be done, all
things necessary, proper or advisable under the provisions of this
Agreement and under applicable law to consummate and make effective
the transactions contemplated hereby.
(b) Notices. Any notice or other communication required
or permitted hereunder shall be in writing and shall be delivered
personally, telegraphed, sent by facsimile transmission or sent by
mail, postage prepaid. Any such notice shall be deemed given when
so delivered personally, telegraphed or sent by facsimile
transmission or, if mailed by certified or registered mail, three
days after the date of deposit in the mails, as follows:
if to the Company, one copy to:
The Tierco Group, Inc.
122 E. 42nd Street
New York, New York 10168
Attn: Kieran E. Burke
Telecopier: (212) 949-6203
<PAGE>
<PAGE>
with a copy to:
Baer Marks & Upham
805 Third Avenue, 20th Floor
New York, New York 10022
Attn: James M. Coughlin
Telecopier: (212) 702-5941
If to the Subscriber, one copy to the address indicated on the
signature page hereof. Any party, by notice given in accordance
with this Section to the other party, may designate another address
or person for receipt of notices hereunder. Notices by a party may
be given by counsel to such party.
(c) Entire Agreement. This Agreement constitutes the
complete understanding between the parties with respect to the
subject matter hereof and supersedes all prior agreements or
undertakings, written or oral, and all contemporaneous oral
agreements or understandings with respect to such subject matter.
(d) Amendments. Except as otherwise provided in Section
6.7, this Agreement may not be amended nor shall any waiver,
change, modification, consent or discharge be effected except by an
instrument in writing executed by or on behalf of the party seeking
or against whom enforcement of any amendment, waiver, change,
modification, consent or discharge is sought.
(e) No Waiver. Any failure or delay on the party of a
party in exercising any power or right hereunder shall not operate
as a waiver thereof, nor shall any single or partial exercise of
any such right or power to preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or
otherwise available in law or in equity.
(f) Severability. If any provisions of this Agreement
for any reason shall be held to be illegal, invalid, or
unenforceable, such illegality shall not effect any other provision
of this Agreement, but this Agreement shall be construed as if such
illegal, invalid or unenforceable provision had never been herein.
(g) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within
such State.
(h) Binding Effect. This Agreement and all of its
provisions, rights and obligations shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors. Except as provided in Section 6.6, this Agreement may
not be assigned by either party without the express written consent
of the other and any purported assignment, unless so consented to,
shall be void and without effect. Except as provided in Section
6.6, nothing herein express or implied is intended or shall be
<PAGE>
construed to confer upon or to give anyone other than the parties
hereto and their respective representatives and successors any
rights or benefits under or by reason of this Agreement.
(i) Counterparts. The Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original as against any party whose signature appears thereon, and
all of which shall together constitute one and the same instrument.
This Agreement shall become binding when one or more counterparts
hereof, individually or taken together, shall bear the signatures
of all of the parties reflected herein as the signatories.
(j) Captions. The section and other headings contained
in this Agreement are for reference purposes only and shall not
affect the meaning or interpretation of this Agreement.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Subscriber hereto has executed this
Agreement as of the 12th day of October, 1994.
Number of Shares: 1,296,296
---------
Aggregate Purchase Price: $1,750,000
----------
Hanseatic Corporation
-------------------------------
Name of Subscriber
s/Paul A. Biddelman, Treasurer
-----------------------------------------
Signature(s) and title, if applicable
Address: 450 Park Avenue, Suite 2302
-------------------------------------
New York, New York 10152
-------------------------------------
If Wire Transfer of Purchase Price is being made:
Name of Transferring Bank:
-----------------------------------
Name of Account:
-----------------------
Account Number:
-----------------------
Accepted as of October 12, 1994
THE TIERCO GROUP, INC.
By: s/Kieran E. Burke
----------------------------
Kieran E. Burke
Chairman of the Board
<PAGE>
<PAGE>
EXHIBIT A
Under Regulation D promulgated under the Securities Act of
1933, as amended, an "accredited investor" is:
(a) A natural person who had individual income of more than
$200,000 in each of the most recent two years, or joint income with
that person's spouse in excess of $300,000 in each of the most
recent two years and who reasonably expects to reach that same
income level for the current year. For this purpose, "individual
income" means adjusted gross income, as reported for federal income
tax purposes, less any income attributable to a spouse or to
property owned by a spouse, (A) increased by the individuals share
(and not a spouse's share) of: (i) the amount of any tax exempt
interest income received, (ii) amounts contributed to an IRA or
Keogh retirement plan, (iii) alimony paid, and (iv) the excluded
portion of any long-term capital gains, and (B) adjusted, plus or
minus, for any non-cash loss or gain, respectively, reported for
federal income;
(b) A natural person whose individual net worth is in excess
of $1,000,000. For this purpose, "net worth" means the excess of
total assets at fair market value, including home and personal
property, over total liabilities, provided, however, for the
purpose of determining a person's net worth, the principal
residence owned by an individual shall be valued at cost, including
the cost of improvements, net of current encumbrances upon the
property or valued on the basis of a written appraisal used by an
institutional lender making a loan secured by the property. For the
purposes of this provision, "institutional lender" means a bank,
savings and loan association, industrial loan company, credit
union, personal property broker or a company whose principal
business is as a lender upon loans secured by real property and
which has such loans receivable in the amount of $2,000,000 or
more. Any person relying on the appraisal value of a principal
residence must deliver to the Company, at or prior to the date of
execution hereof, a copy of such appraisal;
(c) A trust, with total assets in excess of $5,000,000, which
is not formed for the purpose of acquiring the Shares and whose
purchase is directed by a person who has such knowledge and
experience in financial business matters that such person is
capable of evaluating the risks and merits of an investment in the
Shares;
(d) A corporation, a partnership, an organization described
in Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended, or a Massachusetts or similar business trust, not formed
for the specific purpose of acquiring the Shares, with total assets
in excess of $5,000,000;
<PAGE>
<PAGE>
(e) A bank as defined in Section 3(a)(2) of the Act or a
savings and loan association or other institution as defined in
Section 3(a)(5)(A) of the Act, whether acting in its individual or
fiduciary capacity; a broker or dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934; an insurance
company as defined in Section 2(13) of the Act; an investment
company registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48) of the
Investment Company Act of 1940; a small business investment company
licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958; a plan
established and maintained by a state, its political subdivisions,
or an agency or instrumentality of a state or its political
subdivisions, for the benefit of its employees, if such plan has
total assets in excess of $5,000,000; or an employee benefit plan
within the meaning of Title I of the Employee Retirement Income
Security Act of 1974, if the investment decision is made by a plan
fiduciary,, as defined in Section 3(21) of the Employee Retirement
Income Security Act of 1974, which is either a bank, savings and
loan association, insurance company, or registered adviser, or if
the employee benefit plan has total assets in excess of $5,000,000
or, if the employee benefit plan is a self-directed plan, the
invested decision is made solely by persons who are accredited
investors;
(f) A private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940; or
(g) An entity in which all of the equity owners meet the
requirements of at least one of the above subparagraphs for
accredited investors.
