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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 17)*
Premier Parks Inc. (formerly The Tierco Group, Inc.)
- ---------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $0.01 per share
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(Title of Class of Securities)
740540-10-9
------------------------------------------------------
(CUSIP Number)
James M. Coughlin, Esq.
Mr. Robert J. Gellert Baer Marks & Upham
122 East 42nd Street 805 Third Avenue
New York, New York 10168 New York, New York 10022
(212) 599-3630 (212) 702-5819
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
August 15, 1995
------------------------------------------------------
(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: (1) 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 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 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>
SCHEDULE 13D
CUSIP No. 740540-10-9 Page 2 of Pages
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1. NAME OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NOS. OF
ABOVE PERSONS
The reporting persons are listed on Appendix A (the
"Stockholders")
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)
(b) [X]
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3.1 SEC USE ONLY
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4. SOURCE OF FUNDS All Stockholders. See Appendix B
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION See Appendix A
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7. SOLE VOTING POWER
See Appendix C
---------------------------------------------------------------
NUMBER OF 8. SHARED VOTING POWER
SHARES See Appendix C
BENEFICIALLY
OWNED BY
EACH
PERSON WITH ---------------------------------------------------------------
9. SOLE DISPOSITIVE POWER See Appendix C
---------------------------------------------------------------
10. SHARED DISPOSITIVE POWER See Appendix C
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Appendix C
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) See Appendix C
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14. TYPE OF REPORTING PERSON See Appendix A
================================================================================
<PAGE>
The statement on Schedule 13D, dated May 30, 1980, as amended, with
respect to the shares of common stock, par value $.01 per share (the
"Common Stock") of Premier Parks Inc. (formerly The Tierco Group, Inc.), a
Delaware corporation (the "Corporation"), filed on behalf of the
undersigned is hereby amended and restated as follows:
Item 1. Security and Issuer.
-------------------
This statement relates to shares (the "Shares") of Common Stock, par
value $.01 per share (the "Common Stock") of Premier Parks Inc., a Delaware
corporation (the "Corporation"). The address of the principal executive
office of the Corporation is 11501 Northeast Expressway, Oklahoma City,
Oklahoma 63131.
Item 2. Identity and Background.
-----------------------
This statement is filed by the thirty-eight individuals, one
partnership (the "Partnership"), one corporation ("Lexfor") and twelve
trusts listed on Appendix A (collectively, the "Shareholders"), which sets
forth the following information with respect to each Shareholder, the
partners of the Partnership and the executive officers and directors of
Lexfor: (i) name; (ii) residence or business address; (iii) present
principal occupation, employment or business and the name, principal
business and address of any corporation or other organization in which such
employment is conducted; and (iv) citizenship or jurisdiction of
organization.
The circumstances of the transactions through which the Shareholders
acquired their Shares are such that some or all of the Shareholders may be
deemed to constitute a "group" with respect to the Shares under
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). Neither the filing of this statement nor any of its
contents
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<PAGE>
shall be deemed to constitute an admission that any Shareholder is a member
of any such group, either for purposes of Section 13(d) of the Exchange Act
or for any other purpose, and each Shareholder expressly disclaims
membership in any such group. No Shareholder shall be responsible for the
completeness or accuracy of any information contained in this statement
with respect to any other Shareholder.
None of the Shareholders, the partners of the Partnership or the
executive officers or directors of Lexfor (a) has been convicted during the
last five years in any criminal proceeding (excluding traffic violations or
similar misdemeanors) or (b) has been a party during the last five years to
a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
-------------------------------------------------
As reflected on Appendix B hereto, on August 15, 1995, Michael E.
Gellert, John M. Gellert and Catherine A. Gellert, each a Stockholder,
purchased 10,600, 1,000 and 500 shares, respectively, of the Corporation's
Series A Cumulative Convertible Preferred Stock (the "Preferred Stock") at
a purchase price of $100 per share. Each share of Preferred Stock is
convertible into approximately 60.6 shares of Common Stock. The purchase
price for such shares of Preferred Stock was paid by each such Stockholder
out of his or her personal funds. Subscription Agreements of each such
Stockholder are annexed as Exhibit 58 hereto and incorporated herein by
reference.
As reflected on Appendix B hereto, on August 15, 1995, the Partnership
converted $2,095,000 principal amount of the Corporation's Junior
Subordinated Note ("Junior
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<PAGE>
Subordinated Note") held by the Partnership into 1,551,852 shares of Common
Stock pursuant to a letter agreement annexed hereto as Exhibit 59, and John
M. Gellert and Catherine A. Gellert each converted $100,000 principle
amount of Notes (as hereinafter defined) into 83,933 shares of Common
Stock. The Junior Subordinated Note evidenced accrued interest as of
October 30, 1992 on certain advances made prior to such date by the
Partnership out of its working capital to fund operating expenses of, and a
portion of the purchase price of certain acquisitions made by, the
Corporation.
As reflected on Appendix B hereto, on October 12, 1994, the
Partnership and Michael E. Gellert, a Stockholder and a general partner of
the Partnership, purchased 744,696 shares of Common Stock and 111,111
shares of Common Stock, respectively, from the Corporation in a private
placement (the "1994 Private Placement") at a purchase price of $1.35 per
share. Subscription Agreements of the Partnership and Michael E. Gellert
are annexed hereto as Exhibits 55 and 56, respectively. The purchase price
of the shares purchased by the Partnership, $1,005,340, was paid (i)
$350,000 in cash out of the working capital of the Partnership and (ii)
$655,340 by cancellation by the Partnership of indebtedness in such amount
owed by the Corporation to the Partnership. The indebtedness related to
amounts advanced by the Partnership to the Corporation out of the
Partnership's working capital to fund operating expenses of, and a portion
of the purchase price of certain acquisitions made by, the Corporation.
The purchase price of the shares purchased by Michael E. Gellert, $150,000,
was paid by him out of his personal funds.
As reflected on Appendix B hereto, pursuant to a Convertible Note
Purchase Agreement (the "Purchase Agreement"), dated as of March 3, 1993,
among the Corporation and the purchasers named therein, on July 29, 1993,
each of John M. Gellert and Catherine
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<PAGE>
A. Gellert, each a Stockholder, purchased $100,000 principal amount of 9.5%
Senior Subordinated Convertible Notes (the "Notes") of the Corporation. In
connection with this transaction the Corporation issued $7,000,000
principal amount of Notes. Each Note is convertible into shares of Common
Stock at a conversion price of $1.25 per share, subject to anti-dilution
adjustments. A copy of the Purchase Agreement is annexed hereto as Exhibit
52 and incorporated herein by reference. The purchase price of $100,000
for each such Note was paid by John M. Gellert and Catherine A. Gellert,
respectively, out of their respective personal funds.
As reflected on Appendix B hereto, on October 30, 1992, the
Partnership and Michael E. Gellert, a Stockholder and a general partner of
the Partnership, purchased 3,500,000 shares of Common Stock and 15,000
shares of Common Stock, respectively, from the Corporation in a private
placement (the "1992 Private Placement") at a purchase price of $1.00 per
share. Subscription Agreements of the Partnership and Michael E. Gellert
are annexed hereto as Exhibits 47 and 48, respectively. The purchase price
of $3,500,000 was paid by the Partnership by surrender of promissory notes
of the Corporation in favor of the Partnership in the principal amount of
$3,500,000. The Notes evidenced advances made by the Partnership to the
Corporation out of the Partnership's working capital to fund operating
expenses of, and a portion of the purchase price of certain acquisitions
made by, the Corporation. The purchase price of $15,000 was paid by
Michael E. Gellert out of his personal funds.
By virtue of the 1992 Private Placement, warrants to purchase 126,200
shares of Common Stock held by the Partnership, warrants to purchase
315,966 shares of Common
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<PAGE>
Stock held by Michael E. Gellert and warrants to purchase 488,514 shares of
Common Stock held by Lexfor (collectively, the "Warrants") expired by their
respective terms.
In connection with the 1992 Private Placement, the Partnership granted
to Lexfor, for nominal consideration, an option to purchase 325,000 shares
of Common Stock (the "Option"). The Option was exercisable at $1.25 per
share through October 30, 1993, and at $1.50 per share thereafter until
termination on October 18, 1994. The Option was exercised in full on
October 19, 1993. The exercise price was paid out of Lexfor's working
capital. The Option Agreement is annexed as Exhibit 49 hereto.
Except for purchases of Preferred Stock, shares of Common Stock issued
upon conversion of the Junior Subordinated Note and the Note, shares of
Common Stock purchased in the 1992 Private Placement and the 1994 Private
Placement and shares purchased pursuant to the exercise of the Option, and
certain other purchases of shares of Common Stock by certain Stockholders
and the transfer of shares of Common Stock by certain Stockholders by means
of gift and distributions under will or trust to certain other
Stockholders, which purchases and transfers are set forth on Appendix B
hereto, which is incorporated herein by reference, all of the Stockholders
acquired their shares of Common Stock pursuant to the reorganization of
Tierco, a Massachusetts business trust ("Tierco"), into a corporation by
its merger (the "Merger") into the Corporation on June 3, 1981. Pursuant
to the Merger, each of the issued and outstanding shares of beneficial
interest, par value $1.00 (the "Shares") of Tierco was converted into one
share of Common Stock. There was no other consideration for this exchange.
Prior to the Merger, certain Stockholders acquired their Shares in
connection with the liquidation of Viking, Inc., an Alaska corporation
("Viking"), pursuant to an Agreement and
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<PAGE>
Plan of Reorganization dated September 13, 1979 (the "Plan"), and letter
agreements (the "Agreements") pursuant to which stockholders of Viking sold
some of the Shares they were to receive upon the liquidation of Viking at a
price of $3.50 per Share. Under the terms of the Agreements, the Shares
were paid for in cash from the Stockholders' personal funds and by delivery
of promissory notes. The Plan and letter agreements attached as Exhibits 1
and 2 through 8, respectively, to the original statement on Schedule 13D
are incorporated herein by reference.
Item 4. Purpose of Transaction
----------------------
The Preferred Shares and the shares of Common Stock acquired upon
conversion of the Junior Subordinated Note and the Notes by Michael E.
Gellert, John M. Gellert, Catherine A. Gellert and the Partnership, as the
case may be, were acquired for investment purposes.
The Notes were acquired by John M. Gellert and Catherine A. Gellert
for investment purposes. Pursuant to the Purchase Agreement, holders of a
majority in interest of the shares of Common Stock issued upon conversion
of the Notes (the "Conversion Shares") have the right to designate one
member of the Corporation's board of directors unless any single holder of
Conversion Shares shall own such a majority in interest and an officer,
director, employee, agent or other affiliate of such holder shall then be a
member of such board of directors. An officer of Hanseatic Corporation,
the holder of a majority in interest of the Conversion Shares, is a
director of the Corporation.
The shares of Common Stock acquired in the 1992 Private Placement and
the 1994 Private Placement by the Partnership and Michael E. Gellert were
acquired for investment purposes. The shares of Common Stock acquired by
Lexfor pursuant to the exercise of the
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<PAGE>
Option were acquired for investment purposes. The Option had been granted
to Lexfor by the Partnership in order to maintain certain relationships
among the Stockholders by virtue of the expiration of the Warrants. All
other shares listed on Appendix B, whether acquired by purchase, by gift or
by distributions under will or trust by the Stockholders listed on Appendix
B, were acquired for investment purposes. The balance of the shares of
Common Stock held by the Stockholders were acquired by the Stockholders in
exchange for all of their Shares as a result of the Merger. As a result of
these transactions, the Stockholders "beneficially own" (as defined in Rule
13d-3 under the Exchange Act) an aggregate of 7,949,149 shares of the
Corporation's outstanding Common Stock.
None of the Stockholders, the directors or executive officers of
Lexfor or the general partners of the Limited Partnership has any current
plans or proposals that relate to or would result in the acquisition of
additional securities of the Corporation or the disposition of securities
of the Corporation, or an extraordinary transaction, such as a merger,
reorganization or liquidation involving the Corporation, or a sale or
transfer of a material amount of assets of the Corporation, or any material
changes in the Corporation's present capitalization or dividend policy, or
any other material changes in the Corporation or its business or corporate
structure. However, some or all of the Stockholders in the future may
acquire additional shares of Common Stock or other securities of the
Corporation, or may, subject to the restrictions on disposition imposed by
the securities laws, dispose of shares of Common Stock or other securities
of the Corporation, or may propose such changes in the Corporation and its
business and management as they deem to be appropriate. Since 1989,
Michael E. Gellert has been a director of the Corporation. Mr. Gellert has
agreed to vote
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<PAGE>
shares of Common Stock beneficially owned by him for the election to the
Board of the designee of the holders of the Conversion Shares.
Item 5. Interest in Securities of the Issuer
------------------------------------
The Stockholders "beneficially own," as defined in Rule 13d-3 under
the Exchange Act, an aggregate of 7,949,149 shares of Common Stock, which
constitutes 31.77% of the sum of (i) the 16,860,607 shares of Common Stock
outstanding on June 30, 1995, as reported by the Corporation in its
Quarterly Report on Form 10-Q for the quarter then ended, (ii) the
7,427,162 shares of Common Stock issued on August 15, 1995 upon conversion
of the Junior Subordinated Note and the Notes and (iii) the 733,333 shares
of Common Stock issuable upon conversion of the shares of Preferred Stock
held by the Stockholders. Appendix C to this statement sets forth
information with respect to the number of shares and percentage of Common
Stock beneficially owned by each Stockholder, which Appendix is
incorporated herein by reference.
Except as described in Items 3 and 4, no Shareholder, partner of the
Partnership or executive officer or director of Lexfor has effected any
transaction in shares of Common Stock during the past sixty days.
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer
------------------------------------------------------
Except as otherwise indicated in this Schedule 13D (including the
Appendices), none of the Shareholders, partners of the Partnership or
executive officers or directors of Lexfor has 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 of such securities, finders' fees, joint
ventures, loans or option
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<PAGE>
arrangements, puts or calls, guarantees of profits, division of profits or
losses or the giving or withholding of proxies.
Pursuant to Subscription Agreements, dated as of August 3, 1995, which
are annexed hereto as Exhibit 58 and incorporated herein by reference, the
Corporation provided certain registration rights under the Securities Act
of 1933, as amended (the "Act") to Michael E. Gellert, John M. Gellert and
Catherine A. Gellert in respect of the shares of Common Stock into which
the shares of Preferred Stock purchased by them are convertible. Pursuant
to an Amendment, dated as of August 15, 1995, to certain Subscription
Agreements, the Corporation granted registration rights under the Act to
the Partnership in respect of the shares of Common Stock issued upon
conversion of the Junior Subordinated Note. The Amendment is annexed
hereto as Exhibit 60 and incorporated herein by reference.
Pursuant to Subscription Agreements, dated as of October 12, 1994,
which are annexed hereto as Exhibits 55 and 56, respectively, and
incorporated herein by reference, the Corporation provided certain
registration rights under the Act to the Partnership and Michael E. Gellert
in respect of shares of Common Stock purchased by them in the 1994 Private
Placement.
Pursuant to Subscription Agreements dated October 29, 1992, which are
annexed hereto as Exhibits 47 and 48, respectively, and incorporated herein
by reference, the Corporation provided certain registration rights under
the Act to the Partnership and Michael E. Gellert in respect of shares of
Common Stock purchased by them in the 1992 Private Placement.
The Corporation has agreed in various agreements referred to herein to
provide to certain of its stockholders, including the Partnership,
Michael E. Gellert, John M. Gellert
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<PAGE>
and Catherine A. Gellert, copies of the reports and other documents filed
by the Corporation under Sections 13 and 15 of the Exchange Act.
Item 7. Material to be Filed as Exhibits
--------------------------------
The following exhibits are filed herewith:
Exhibit No. Exhibit
- ----------- -------
1. The Plan.
2. Letter Agreement, dated November 2, 1979, between DMG and
Peter J. Gellert, on his own behalf and as agent for certain
beneficial stockholders of Viking.
3. Letter Agreement, dated November 2, 1979, between DMG and
Robert J. Gellert, on his own behalf and as agent for
certain beneficial stockholders of Viking.
4. Letter Agreement, dated November 2, 1979, between DMG and
MEG, on his own behalf and as agent for certain beneficial
stockholders of Viking.
5. Letter Agreement, dated November 2, 1979, between DMG and
Lewis E. Dickinson, on his own behalf and as agent for
Dickinson-Oswald Enterprises.
6. Letter Agreement, dated November 2, 1979, between DMG and
Harry J. Lang.
7. Letter Agreement, dated November 2, 1979, between DMG and
HCL.
8. Letter Agreement, dated November 2, 1979, between DMG and
Robert B. Ballow.
9. Agreement dated May 30, 1980 among all the Shareholders with
respect to filing this statement on behalf of all of them.
10. Powers of Attorney given to Robert J. Gellert by each of the
other Shareholders.
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<PAGE>
11. Agreement dated June 11, 1981 among the Stockholders with
respect to filing a statement on Schedule 13D and amendments
thereto.
12. Powers of attorney given to Robert J. Gellert by certain of
the new Shareholders.
13. Agreement dated November 9, 1981, among the Stockholders
with respect to filing a statement on Schedule 13D and
amendments thereto.
14. Agreement, dated December 2, 1982, among the Stockholders
with respect to filing a statement on Schedule 13D and
amendments thereto.
15. Agreement dated June 8, 1984 among the Stockholders with
respect to filing a statement on Schedule 13D and amendments
thereto.
16. Powers of attorney given to Robert J. Gellert by certain of
the Stockholders.
17. Agreement dated December 10, 1984 among the Stockholders
with respect to filing a statement on Schedule 13D and
amendments thereto.
18. Voting Trust Agreement, dated as of November 28, 1984.
19. Agreement dated February __, 1989 among the Stockholders
with respect to filing a statement on Schedule 13D and
amendments thereto.
20. Powers of attorney given to Robert J. Gellert by certain of
the Stockholders.
21. Press release issued by the Corporation dated March 21,
1989.
22. Agreement dated April 4, 1989 among the Stockholders with
respect to filing a statement on Schedule 13D and amendments
thereto.
23. Promissory Note dated March 16, 1989.
24. Mortgage dated March 16, 1989 on certain property owned by
GSMI, Inc. located in Oklahoma City, Oklahoma.
25. Guaranty dated March 16, 1989 executed by the Corporation.
26. Agreement dated April 26, 1989 among the Stockholders with
respect to filing a statement on Schedule 13D and amendments
thereto.
27. Bridge Note and Warrant Purchase Agreement, dated
October 16, 1989.
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<PAGE>
28. Form of Bridge Note.
29. Form of Warrant.
30. Power of Attorney given by Catherine A. Gellert to Robert J.
Gellert.
31. Agreement dated October 31, 1989 among the Stockholders with
respect to filing a statement on Schedule 13D and amendments
thereto.
32. Agreement dated December 11, 1989 among the Stockholders
with respect to filing a statement on Schedule 13D and
amendments thereto.
33. Note, dated November 21, 1989, of Kieran Burke payable to
the Partnership.
34. Agreement dated December 28, 1989 among the Stockholders
with respect to filing a statement on Schedule 13D and
amendments thereto.
35. Note, dated December 26, 1989, of Kieran Burke payable to
the Partnership.
36. Agreement dated May 24, 1990 among the Stockholders with
respect to filing a statement on Schedule 13D and amendments
thereto.
37. Note, dated May 17, 1990, of Kieran Burke payable to the
Partnership.
38. Power of Attorney given by Anthony E. Gellert to Robert J.
Gellert.
39. Agreement dated February 6, 1991 among the Stockholders with
respect to filing a statement on Schedule 13D and amendments
thereto.
40. Purchase Agreement, dated January 11, 1991.
41. Agency Agreement, dated as of January 11, 1991.
42. Letter Agreement, dated January 11, 1991.
43. Non-Negotiable Demand Note, dated December 27, 1990.
44. Non-Negotiable Demand Note, dated January 11, 1991.
45. Form of Senior Subordinated Note of the Corporation.
46. Form of BMAL Note.
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<PAGE>
47. Subscription Agreement dated October 29, 1992 between
Corporation and the Partnership.
48. Subscription Agreement dated October 29, 1992 between
Corporation and Michael E. Gellert
49. Option Agreement, dated October 30, 1992 between Lexfor and
the Partnership.
50. Power of Attorney given by Jennifer Petschek to Robert J.
Gellert.
51. Power of Attorney given by Victoria E.M. Gellert to
Robert J. Gellert.
52. Convertible Note Purchase Agreement dated as of March 3,
1993, between Corporation and the Purchasers named therein.
53. Registration Rights Agreement dated as of March 8, 1993
between Corporation and the Purchasers named therein.
54. Power of Attorney given by Alexandra Petschek to Robert J.
Gellert.
55. Subscription Agreement dated as of October 12, 1994 between
the Corporation and the Partnership
56. Subscription Agreement dated as of October 12, 1994 between
the Corporation and Michael E. Gellert
57. Letter, dated October 12, 1994, addressed to the Corporation
from the Partnership relating to the cancellation of
$655,340 of indebtedness
58. Subscription Agreement dated as of August 3, 1994 between
the Corporation and each of Michael E. Gellert, John M.
Gellert and Catherine A. Gellert
59. Letter Agreement, dated August 3, 1995, between the
Corporation and the Partnership
60. Amendment dated as of August 15, 1995 to Subscription
Agreements, dated October 29, 1992 and October 12, 1994
All exhibits except Exhibits 58-60 have been previously
filed.
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<PAGE>
Signatures
----------
After reasonable inquiry and to the best of our respective knowledge
and belief, we certify that the information set forth in this statement is
true, complete and correct.
Dated: August 24, 1995
/s/ Robert J. Gellert /s/ Robert J. Gellert
------------------------------- ----------------------------------
Robert J. Gellert Robert J. Gellert,
as Trustee for Catherine Ross
/s/ Robert J. Gellert /s/ Robert J. Gellert
------------------------------- ----------------------------------
Robert J. Gellert, as Trustee Robert J. Gellert, as Trustee for
under Article VIII of the the children of Michael E. Gellert
Will of Natalie Gellert
WINDCREST PARTNERS
By: /s/ Robert J. Gellert
-------------------------------
Robert J. Gellert,
as General Partner
/s/ Peter J. Gellert LEXFOR CORPORATION
-------------------------------
Peter J. Gellert, as Trustee
for Michael E. Gellert
Charitable Annuity Lead By: /s/ Robert J. Gellert
Trust for Harvard University -------------------------------
Robert J. Gellert, President
/s/ Peter J. Gellert /s/ Robert J. Gellert
-------------------------------- ----------------------------------
Peter J. Gellert, as Trustee for Robert J. Gellert, as attorney-in-
The Second Michael E. Gellert fact for each of the other
Charitable Annuity Lead Trust Stockholders listed in Appendix
for Harvard University A to the Schedule 13D, as amended1
(other than Marion P. Smith,
deceased)
- --------------------
1/ Powers of attorney for such persons have been filed with the Securities and
Exchange Commission as Exhibit 10 to the original statement on Schedule 13D,
Exhibit 12 to Amendment No. 1 to Schedule 13D, Exhibit 16 to Amendment No. 4 to
Schedule 13D, Exhibit 20 to Amendment No. 6 to Schedule 13D, Exhibit 30 to
Amendment No. 9 to Schedule 13D, Exhibit 38 to Amendment No. 12 to Schedule 13D
and Exhibit 54 to Amendment No. 15 to Schedule 13D and such powers are
incorporated herein by reference.
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<TABLE><CAPTION>
Appendix A
----------
Name, Principal Business
Principal and Address of any Corpo- Citizenship
Occupation, ration or Other Organization Jurisdiction Type
Name of Residence Employment (if any) in which such of Reporting
or Business Address or Business Employment is Conducted Organization Person
- ---------------------- ----------- ---------------------------- ------------ ---------
<S> <C> <C> <C> <C>
1. Robert J. Gellert Executive United Continental Corporation U.S.A. IN
21 Kerry Lane (bookkeeping, taxes and other
Chappaqua, NY 10514 personal financial services)
122 East 42nd Street
New York, NY 10168
2. Harry E. Petschek Consultant ---- U.S.A. IN
1314 Massachusetts Ave.
Lexington, MA 02173-3809
3. Marion P. Smith (deceased) Housewife ---- U.S.A. IN
69 Joralemon Street
Brooklyn, NY 11201
4. Alfred E. Petschek Vice President United Continental Corporation U.S.A. IN
Southlawn (bookkeeping, taxes and other
Birchall Drive personal financial services)
Scarsdale, NY 10583 122 East 42nd Street
New York, NY 10168
5. Susan F.J. Petschek Teacher ---- U.S.A. IN
14 Sutton Place South
New York, NY 10022
6. Elinor G. Barber Education Office of the Provost U.S.A. IN
115 Central Park West Columbia University
New York, NY 10023 (education)
New York, NY 10027
7. Bridget G. Lyons Teacher Rutgers-State University U.S.A. IN
30 West 60th Street (education)
New York, NY 10023 New Brunswick, NJ
<PAGE>
<CAPTION>
<S> <C> <C> <C> <C>
8. Donald N. Gellert Lawyer Otterbourg, Steindler, U.S.A. IN
110 Riverside Drive Houston & Rosen
New York, NY 10024 (law)
230 Park Avenue
New York, NY 10169
9. Eva Goldmann Housewife ---- U.S.A. IN
150 East 69th Street
New York, NY 10021
10. Ina Schlesinger Teacher State University of New York U.S.A. IN
1385 York Avenue (S.U.N.Y)
New York, NY 10021 (education)
College at Purchase
Purchase, NY 10577
11. Eric Petschek Investor ---- U.S.A. IN
87 Talmadge Hill Rd.
New Canaan, CT 06840
12. Ruth Stein Housewife ---- U.S.A. IN
49 Sheldrake Road
Scarsdale, NY 10583
13. Peter J. Gellert Executive United Continental Corporation U.S.A. IN
1049 Park Avenue (bookkeeping, taxes and other
New York, NY 10028 personal financial services)
122 East 42nd Street
New York, NY 10168
14. Martin F. Gellert Bio-Chemist National Institute of Health U.S.A. IN
4108 Dresden Street Dept. of Health and Human
Kensington, MD 20895 Services
Bethesda, MD 20014
15. Hubert J. Gellert Real Estate Continental Land Investments Ltd. U.S.A. IN
12831 Tracy Way 715 L Street
Anchorage, AK 99516 Anchorage, AK 99501
A-2
<PAGE>
<CAPTION>
<S> <C> <C> <C> <C>
16. Michael E. Gellert General Partner Windcrest Partners U.S.A. IN
75 Round Hill Road (Investing)
Greenwich, CT 06831 122 East 42nd Street
New York, NY 10168
17. Albert G. Petschek Retired/ ---- U.S.A. IN
122 Piedra Loop Consultant
White Rock, NM 87544-3828
18. Max E. Gellert Retired U.S.A. IN
2301 Fairview Ave., East
Seattle, WA 98102
19. Glenn P. Gellert Real Estate Continental Land Investments Ltd. U.S.A. IN
3103 West 42nd Avenue 715 L Street
Anchorage, AK 99517 Anchorage, AK 99501
20. Tracy M. Gellert Lawyer State of Alaska U.S.A. IN
1561 Nelchina Street Court System
Anchorage, AK 99501 Anchorage, AK
21. Midori A. Gellert Lawyer ---- U.S.A. IN
1151 Golden Dawn Circle
Anchorage, AK 99515
22. Dell I. Salza Housewife ---- U.S.A. IN
29 Hart Street
Beverly, MA 01915
23. Bruce I. Petschek Film Producer Self-employed U.S.A. IN
44B Sacramento St.
Cambridge, MA 02140
24. Kim P. Rawls Housewife ---- U.S.A. IN
(formerly Kim D. Petschek)
16848 Northeast 143rd St.
Woodinville, WA 98072
25. Tristram H. Smith Psychologist ---- U.S.A. IN
210 North Van Buren Street
Moscow, ID 83843
A-3
<PAGE>
<CAPTION>
<S> <C> <C> <C> <C>
26. Lisa M. Smith Public Relations R. Greenberg Associates U.S.A. IN
50 West 67th Street Manager 350 West 39th Street
New York, NY 10023-6227 New York, NY 10018
27. Rebecca Smith Waddell Computer Processor Self-Employed U.S.A. IN
1074 Feylers Corner
Road
Waldoboro, ME 04572-5710
28. Windcrest Partners Investing ---- N.Y. PN
122 East 42nd Street
New York, NY 10168
29. Walter Petschek Investor ---- U.S.A. 00
Trustee for
Rodolfo Petschek
122 East 42nd Street
New York, NY 10168
30. Walter Petschek See no. 29 00
Trustee for
Rita Kafka
122 East 42nd Street
New York, NY 10168
31. Robert J. Gellert See no. 1 00
Trustee for
Catherine Ross
122 East 42nd Street
New York, NY 10168
--------------------------------
1 The general partners of Windcrest Partners are Robert J. Gellert and Michael E. Gellert. See nos. 1 and 16.
The address noted is the address of the principal business and office of Windcrest Partners.
A-4
<PAGE>
<CAPTION>
<S> <C> <C> <C> <C>
32. Peter J. Gellert See no. 13 00
Trustee for
Heriberto Petschek
122 East 42nd Street
New York, NY 10168
33. Peter J. Gellert See no. 13 00
Trustee for
Egon Petschek
122 East 42nd Street
New York, NY 10168
34. Robert J. Gellert See no. 1 00
Trustee for the
children of
Michael E. Gellert
122 East 42nd Street
New York, NY 10168
35. Peter J. Gellert See no. 13 00
Trustee for
Michael E. Gellert
Charitable Annuity
Lead Trust for
Harvard University
122 East 42nd Street
New York, NY 10168
36. Peter J. Gellert See no. 13 00
Trustee for The
Second Michael E.
Gellert Charitable
Annuity Lead Trust
for Harvard
University
122 East 42nd Street
New York, NY 10168
A-5
<PAGE>
<CAPTION>
<S> <C> <C> <C> <C>
37. Robert J. Gellert See no. 1 00
Trustee under
Article VIII of the
Will of Natalie S.
Gellert FBO
Max E. Gellert
122 East 42nd Street
New York, NY 10168
38. Philip E. Petschek Teacher Greater Lowell Regional U.S.A. IN
5 Moore Street Voc. Tech. School District
Chelmsford, MA 01824 Pawtucket Blvd.
Tyngsboro, MA 01879
39. Marion C. S. Letvin Doctor Massachusetts General Hospital U.S.A. IN
36 Brackett Road Boston, MA
Newton, MA 02158
40. Peter J. Gellert See no. 13 00
Trustee U/I 5/2/75
FBO Vivien S. Reuter
122 East 42nd Street
New York, NY 10168
41. Peter J. Gellert See no. 13 00
Trustee U/I 1/2/81
FBO Diana L. Stein
122 East 42nd Street
New York, NY 10168
42. Peter J. Gellert See no. 13 00
Trustee U/I 11/30/82
FBO Sylvia S. Philips
122 East 42nd Street
New York, NY 10168
43. Andrew M. Ross Vice President Laporte Plc. U.S.A. IN
The Garden Flat Laporte House
59 Fitzjohn's Avenue Kingsway
London NW3 6PH, England Luton LU4 8EW, England
A-6
<PAGE>
<CAPTION>
<S> <C> <C> <C> <C>
44. Jennifer A. Ross Lawyer International Managements Group U.S.A. IN
121 West 72nd Street 22 East 71st Street
New York, NY 10023 New York, NY 10021
45. Barbara C. Ross Medical Student ---- U.S.A. IN
1099 22nd Street, N.W.
Washington, D.C. 20037
46. John M. Gellert Shipping SCF Corp. U.S.A. IN
303 East 83rd Street 1370 Avenue of the Americas
New York, NY 10028 New York, NY 10019
47. Catherine A. Gellert News CNN Business News U.S.A. IN
1035 Fifth Avenue Five Penn Plaza
New York, NY 10028 New York, NY 10001
48. Anthony E. Gellert Graduate Student ---- U.S.A. IN
6 Soldiers Field Park
Boston, MA 02163
49. Jennifer S. Petschek ---- ---- U.S.A. IN
P.O. Box 238
Rutherford, CA 94573
50. Victoria E.M. Gellert ---- ---- U.S.A. IN
12831 Tracy Way
Anchorage, AK 99516
51. Alexandra Petschek Paralegal Friedman & Kaplan U.S.A. IN
105 West 13th Street 875 Third Avenue
New York, NY 10011 New York, NY 10022-6225
52. Lexfor Corporation Investing ---- DE CO
122 East 42nd Street
New York, NY 10168
53. Executive Officers and
Directors of Lexfor
Corporation:
A-7
<PAGE>
<CAPTION>
<S> <C> <C> <C> <C>
(a) Robert J. Gellert, See No. 1
(President, Treasurer
and a director)
(b) David B. Spohn Treasurer United Continental Corporation U.S.A. IN
Gellert (bookkeeping, taxes and other
5 Riverside Drive personal financial services)
New York, NY 10023 122 East 42nd Street
New York, NY 10168-0127
(Vice President,
Secretary and
a director)
(c) William R. Peter Vice President United Continental Corporation U.S.A. IN
49 Carnegie Drive (bookkeeping, taxes and other
Smithtown, NY 11787 personal financial services)
122 East 42nd Street
(Vice President, New York, NY 10168-0127
Assistant Secretary,
Assistant Treasurer
and a director)
</TABLE>
A-8
<PAGE>
Appendix B
----------
Purchases of Shares of Common Stock
Number Price Source Total
of per of Purchase
Stockholder Date Shares Share Funds Price
- ----------- ---------- ------ ----- ------- --------
Windcrest Partners 5/25/84(1) 10,000 $4.875(2) WC $ 48,750.00(2)
5/31/84(3) 92,000 5.00 WC 460,000.00
6/21/84(1) 4,000 5.00(2) WC 20,000.00(2)
6/28/84(4) 14,066 5.00 WC 70,330.00
11/17/89(1) 31,300 1.0625 WC 33,256.25
12/19/89(1) 22,100 1.0625 WC 23,481.25
01/17/90(1) 3,110 0.9275 WC 2,915.63
02/01/90(1) 5,000 0.59375 WC 2,968.76
05/10/90(1) 25,000 0.625 WC 16,408.25
10/30/92(5) 3,500,000 1.0 WC 3,500,000
10/12/94(5) 744,696 1.35 WC 1,005,340
8/15/95(6) 1,551,852 1.35 WC 2,095,000
Michael E. Gellert 10/30/92(5) 15,000 1.0 PF 15,000
10/12/94(5) 111,111 1.35 PF 150,000
12/15/94(1) 55,000 1.20 PF 66,204
12/15/94(1) 99,992 1.20 PF 120,390.37
8/15/95(7) 642,424 1.65 PF 1,060,000
John M. Gellert 8/15/95(6) 83,933 1.19 PF 100,000
8/15/95(7) 60,606 1.65 PF 100,000
Catherine A. Gellert 8/15/95(6) 83,933 1.19 PF 100,000
8/15/95(7) 30,303 1.65 PF 50,000
Lexfor Corporation 10/19/93(7) 325,000 1.25 WC 406,250
Sale of Shares of Common Stock pursuant to Option (8)
Windcrest Partners 10/19/93 325,000 1.25 -- --
_______________
(1) Purchase made in the over-the-counter market.
(2) Excludes broker's commission.
(3) Privately negotiated transaction.
(4) Privately negotiated transaction whereby 14,066 shares of Common Stock
reported in Amendment No. 4 to Schedule 13D as owned by Stephen R.
Petschek were acquired by Windcrest Partners.
(5) Private placement by issuer.
(6) Represents shares of Common Stock issued upon conversion of the
Corporation's Junior Subordinated Note and 9.5% Senior Subordinated
Convertible Notes. These Notes were private placed by the Corporation.
(7) Represents shares of Common Stock into which the Corporation's Series A
7% Cumulative Convertible Preferred Stock is convertible. The Preferred
Stock was privately placed by the Corporation.
(8) Exercise of private option granted to Lexfor Corporation by Windcrest
Partners.
<PAGE>
Transfer of Shares of Common Stock by Gift
Number
Date of Shares
-------- ---------
Michael E. Gellert to:
- Peter J. Gellert, 12/21/82 4,100
Robert J. Gellert 12/19/83 3,600
and
William R. Peters,
Trustees for John 12/17/84 2,600
M. Gellert
- Peter J. Gellert, 12/21/82 4,100
Robert J. Gellert 12/19/83 3,600
and
William R. Peters,
Trustees for 12/17/84 2,600
Catherine A. Gellert
- Peter J. Gellert, 12/21/82 6,000
Trustee for
Michael E. Gellert,
Charitable Annuity
Lead Trust for
Harvard University
- Peter J. Gellert, 11/22/83 2,400
Trustee for The
Second Michael E.
Gellert Charitable
Annuity Lead Trust
for Harvard University
- President and Fellows 9/25/94 25,000
of Harvard College, Trustee
for Michael E. Gellert
Charitable Annuity Lead Trust
Peter J. Gellert to:
- Walter Petschek, 12/19/83 2,000
Robert J. Gellert
and
William R. Peters,
Trustees for Anthony
E. Gellert
B-2
<PAGE>
Number
Date of Shares
-------- ---------
Peter J. Gellert, as Agent
for Hubert J. Gellert to:
- Peter J. Gellert, as
Agent for
Glenn P. Gellert 12/19/83 3,600
12/09/86 3,000
Tracy M. Gellert 12/19/83 3,600
12/09/86 3,000
Midori A. Gellert 12/19/83 3,600
12/09/86 3,000
Peter J. Gellert, 12/19/83 3,600
Robert J. Gellert 12/09/86 3,000
and
William R. Peters,
Trustees for Victoria
E.M. Gellert
Robert J. Gellert, as
Agent for Harry E.
Petschek to:
- Robert J. Gellert,
as Agent for
Dell I. Salza 12/16/82 4,400
12/09/86 3,000
Bruce I. Petschek 12/16/82 4,400
12/09/86 3,000
Kim P. Rawls 12/16/82 4,400
12/09/86 3,000
Philip E. Petschek 12/09/86 3,000
Robert J. Gellert, as
Agent for Marion P.
Smith to:
- Robert J. Gellert,
as Agent for
Tristram H. Smith 12/23/82 1,000
Lisa M. Smith 12/23/82 1,000
12/09/86 3,000
Rebecca S. Waddell 12/23/82 1,000
(formerly Rebecca 12/09/86 3,000
Smith)
Robert J. Gellert, as
Agent for Harry E.
Petschek to:
- Dell I. Salza 12/17/85 2,000
- Bruce I. Petschek 12/17/85 2,000
- Kim P. Rawls 12/17/85 2,000
B-3
<PAGE>
Number
Date of Shares
-------- ---------
Robert J. Gellert, as
Agent for Ruth Stein to:
- Robert J. Gellert
as Agent for
Marion C. Levin 12/09/86 3,000
- Peter J. Gellert,
Trustee for
Vivien S. Reuter 12/09/86 3,000
- Peter J. Gellert,
Trustee for
Diana L. Stein 12/09/86 3,000
- Peter J. Gellert,
Trustee for
Sylvia S. Philips 12/09/86 3,000
Peter J. Gellert to:
- Andrew M. Ross 12/16/86 2,800
- Jennifer A. Ross 12/16/86 2,800
- Barbara C. Ross 12/16/86 2,800
Michael E. Gellert to:
- John M. Gellert 12/16/94 16,000
- Catherine A. Gellert 12/16/94 16,000
B-4
<PAGE>
Transfer of Shares of Common Stock by
Testamentary Distribution and Distributions under Trusts
Number
Date of Shares
-------- ---------
Robert J. Gellert,
as Agent for
Max E. Gellert,
Executor of the
Estate of Natalie
S. Gellert to:
- Max E. Gellert 09/25/85 5,419
- Robert J. Gellert,
as Trustee under
Art. VIII of the
will of Natalie S.
Gellert for
Max E. Gellert 09/25/85 5,419
Robert J. Gellert,
Trustee for the
children of
Michael E. Gellert to:
- John M. Gellert 06/15/88 1,338
Robert J. Gellert,
Trustee for the
children of
Michael E. Gellert to:
- Catherine A. Gellert 09/09/89 1,338
Walter Petschek,
Robert J. Gellert 03/23/90 2,000
and
William R. Peters,
Trustees for
Anthony E. Gellert to:
- Anthony E. Gellert
Peter J. Gellert, Robert 04/04/91 10,300
J. Gellert and William R.
Peters, Trustees U/I dated
12/22/71 for John M. Gellert to:
- John M. Gellert
B-5
<PAGE>
Number
Date of Shares
-------- ---------
Robert J. Gellert,
as Agent for
Peter J. Gellert, Robert 08/09/91 43
J. Gellert and Alfred
E. Petschek, Trustees
U/I dated 02/23/71
for Jennifer S.
Petschek to:
- Robert J. Gellert,
as Agent for
Jennifer S. Petschek
Peter J Gellert, 09/24/91 6,600
as Agent for
Peter J. Gellert, Robert
J. Gellert and William
R. Peters, Trustees
U/I dated 12/22/70 for
Victoria E.M. Gellert to:
- Peter J. Gellert
as Agent for
Victoria E.M. Gellert
Robert J. Gellert, Peter 06/04/92 10,300
J. Gellert and William
R. Peters, Trustees
U/I dated 12/22/71 for
Catherine A. Gellert to:
- Catherine A. Gellert
Robert J. Gellert,
as Agent for
Robert J. Gellert, Peter 03/11/93 43
J. Gellert and Alfred E.
Petschek, Trustees
U/I dated 12/18/72 for
Alexandra Petschek to:
- Robert J. Gellert
as Agent for Alexandra Petschek
B-6
<PAGE>
Appendix C
(1) The following table sets forth information with respect to the Common
Stock beneficially owned by each Stockholder:
<TABLE><CAPTION>
Number of Voting Dispositive
Shares Power Power Percent
Beneficially ------ ------------ of Shares
Stockholder Owned Sole Shared Sole Shared Outstanding*
- ----------- ------------- ---- ------ ---- ------ -----------
<S> <C> <C> <C> <C> <C> <C>
Robert J. Gellert 11,070 11,070 11,070 0.05
Robert J. Gellert, as
agent1 for:
-Harry E. Petschek 21,378 21,378 21,378 0.09
-Marion P. Smith (deceased) 6,910 6,910 6,910 0.03
-Alfred E. Petschek 20,377 20,377 20,377 0.08
-Susan F.J. Petschek 20,292 20,292 20,292 0.08
-Elinor G. Barber 10,928 10,928 10,928 0.04
-Bridget G. Lyons 10,928 10,928 10,928 0.04
-Donald N. Gellert 10,928 10,928 10,928 0.04
-Walter Petschek, Trustee
for Rodolfo Petschek 48,426 48,426 48,426 0.20
-Eva Goldmann 9,272 9,272 9,272 0.04
-Ina Schlesinger 9,272 9,272 9,272 0.04
-Walter Petschek, Trustee
for Rita Kafka 9,271 9,271 9,271 0.04
-Eric Petschek 17,334 17,334 17,334 0.07
-Ruth Stein 5,411 5,411 5,411 0.02
-Albert G. Petschek 574 574 574 **
-Dell I. Salza 7,400 7,400 7,400 0.03
-Bruce I. Petschek 7,400 7,400 7,400 0.03
-Kim P. Rawls 7,400 7,400 7,400 0.03
-Tristram H. Smith 1,000 1,000 1,000 **
-Lisa M. Smith 4,000 4,000 4,000 0.02
-Philip E. Petschek 3,000 3,000 3,000 0.01
-Marion C.S. Letvin 3,000 3,000 3,000 0.01
-Peter J. Gellert, Trustee
for Vivien S. Reuter 3,000 3,000 3,000 0.01
- --------------------------------
* Based upon sum of (i) 16,860,607 shares outstanding as of June 30, 1995, as reported in the Corporation's Quarterly
Report for the quarter then ended, (ii) 7,427,162 shares of Common Stock issued by the Corporation upon conversion of certain
Notes on August 15, 1995 and (iii), with respect to any Stockholder, shares to be issued upon conversion of such Stockholder's
Series A 7% Cumulative Convertible Preferred Stock.
1 Each principal shares voting and dispositive power with Peter J. Gellert, agent and shareholder of record, with respect
to the indicated number of shares.
** Less than 0.01%.
</TABLE>
C-1
<PAGE>
<TABLE><CAPTION>
Number of Voting Dispositive
Shares Power Power Percent
Beneficially ------ ------------ of Shares
Stockholder Owned Sole Shared Sole Shared Outstanding*
- ----------- ------------- ---- ------ ---- ------ -----------
<S> <C> <C> <C> <C> <C> <C>
Con't. Robert J. Gellert
-Rebecca Smith 4,000 4,000 4,000 0.02
-Jennifer S. Petschek 43 43 43 **
-Alexandra Petschek 43 43 43
-Max Gellert 91 91 91 **
-Peter J. Gellert, Trustee
for Heriberto Petschek 154 154 154 **
-Peter J. Gellert, Trustee
for Egon Petschek 153 153 153 **
-Peter J. Gellert, Trustee
for Diana L. Stein 3,000 3,000 3,000 0.01
-Peter J. Gellert, Trustee
for Sylvia S. Philips 3,000 3,000 3,000 0.01
Robert J. Gellert, Trustee
for the children of
Michael E. Gellert 27,794 27,794 27,794 0.11
Peter J. Gellert 124 124 124 **
Peter J. Gellert, as
Agent2 for:
-Martin F. Gellert 10,838 10,838 10,838 0.04
-Robert J. Gellert, Trustee
for Catherine Ross 10,838 10,838 10,838 0.04
-Hubert J. Gellert 138,147 138,147 138,147 0.57
-Glenn P. Gellert 6,600 6,600 6,600 0.03
-Tracy M. Gellert 6,600 6,600 6,600 0.03
-Midori A. Gellert 6,600 6,600 6,600 0.03
-Victoria E.M. Gellert 6,600 6,600 6,600 0.03
Michael E. Gellert 1,121,140 1,121,140 1,121,140 4.50
- --------------------------------
* Based upon sum of (i) 16,860,607 shares outstanding as of June 30, 1995, as reported in the Corporation's Quarterly
Report for the quarter then ended, (ii) 7,427,162 shares of Common Stock issued by the Corporation upon conversion of
certain Notes on August 15, 1995 and (iii), with respect to any Stockholder, shares to be issued upon conversion of
such Stockholder's Series A 7% Cumulative Convertible Preferred Stock.
** Less than 0.01%.
2 Each principal shares voting and dispositive power with Peter J. Gellert, agent and shareholder of record,
with respect to the indicated number of shares.
</TABLE>
C-2
<PAGE>
<TABLE><CAPTION>
Number of Voting Dispositive
Shares Power Power Percent
Beneficially ------ ----------- of Shares
Stockholder Owned Sole Shared Sole Shared Outstanding*
- ----------- ------------- ---- ------ ---- ------ -----------
<S> <C> <C> <C> <C> <C> <C>
Windcrest Partners2 5,680,124 5,680,124 5,680,124 23.39
Anthony E. Gellert 2,000 2,000 0.01
Michael E. Gellert
Charitable Annuity Lead
Trust for Harvard University
Peter J. Gellert, Trustee 6,000 6,000 6,000 0.02
The Second Michael E. Gellert
Charitable Annuity Lead
Trust for Harvard University
Peter J. Gellert, Trustee 2,400 2,400 2,400 0.01
Robert J. Gellert, Trustee
Under Article VIII of the
will of Natalie S. Gellert
FBO Max E. Gellert 5,419 5,419 5,419 0.02
Andrew M. Ross 2,800 2,800 2,800 0.01
Jennifer A. Ross 2,800 2,800 2,800 0.01
Barbara C. Ross 2,800 2,800 2,800 0.01
John M. Gellert 172,177 172,177 172,177 0.71
Dell I. Salza 2,000 2,000 2,000 0.01
Bruce I. Petschek 2,000 2,000 2,000 0.01
Kim W. Rawls 2,000 2,000 2,000 0.01
Max E. Gellert 5,419 5,419 5,419 0.02
Catherine A. Gellert 141,874 141,874 141,874 0.58
Lexfor Corporation 325,000 325,000 325,000 1.34
--------------------------------
* Based upon sum of (i) 16,860,607 shares outstanding as of June 30, 1995, as reported in the Corporation's Quarterly Report
for the quarter then ended, (ii) 7,427,162 shares of Common Stock issued by the Corporation upon conversion of certain Notes on
August 15, 1995, and (iii) with respect to any Stockholder, shares to be issued upon conversion of such Stockholder's Series A
7% Cumulative Convertible Preferred Stock.
2 The principal, a New York limited partnership, shares voting and investment power with its general partners, Michael
E. Gellert and Robert J. Gellert. The limited partners of Windcrest Partners disclaim beneficial ownership of these shares.
</TABLE>
C-3
<PAGE>
<TABLE><CAPTION>
(2) The following table sets forth information with respect to the
total number of shares of Common Stock beneficially owned by each Stockholder
with multiple entries under (1) above:
Number of Voting Dispositive
Shares Power Power Percent
Beneficially ------ ------------ of Shares
Stockholder Owned Sole Shared Sole Shared Outstanding*
- ----------- ------------- ---- ------ ---- ------ -----------
<S> <C> <C> <C> <C> <C> <C>
Michael E. Gellert1 6,943,138 1,121,140 5,821,998 1,121,140 5,821,998 27.82
Robert J. Gellert2 6,308,230 44,283 6,263,947 44,283 6,263,947 25.97
Peter J. Gellert 204,054 8,524 195,530 8,524 195,530 0.84
Walter Petschek 57,697 57,697 57,697 0.24
Dell I. Salza 9,400 2,000 7,400 2,000 7,400 0.04
Bruce I. Petschek 9,400 2,000 7,400 2,000 7,400 0.04
Kim P. Rawls 9,400 2,000 7,400 2,000 7,400 0.04
Max E. Gellert 5,510 5,419 91 5,419 91 0.02
--------------------------------
* Based upon sum of (i) 16,860,607 shares outstanding as of June 30, 1995, as reported in the Corporation's Quarterly
Report for the quarter then ended, (ii) 7,427,162 shares of Common Stock issued by the Corporation upon conversion of
certain Notes on August 15, 1995 and (iii), with respect to any Stockholder, shares to be issued upon conversion of
such Stockholder's Series A 7% Cumulative Convertible Preferred Stock.
1 Includes 5,680,124 shares of Common Stock beneficially held by Windcrest Partners, of which Mr. Gellert is
a general partner, and 141,874 shares of Common Stock beneficially held by his daughter residing in his household,
as to which Mr. Gellert disclaims beneficial ownership.
2 Includes 5,680,124 shares of Common Stock beneficially held by Windcrest Partners, of which Mr. Gellert is
a general partner, and shares of Common Stock as to which Mr. Gellert acts as agent or trustee as specified in this
Appendix C. Also includes 325,000 shares beneficially owned by Lexfor Corporation, of which Mr. Gellert is
President and a director, and as to which Mr. Gellert disclaims beneficial ownership.
</TABLE>
C-4
<PAGE>
(3) The following table sets forth information with respect to the
total number of shares of Common Stock beneficially owned by each
Stockholder who beneficially owns in excess of five percent of the shares
outstanding:
Total Number Percent of
of Shares Shares
Stockholder Beneficially Owned Outstanding*
- ----------- ------------------ -----------
Michael E. Gellert 6,943,138 27.82
Robert J. Gellert 6,308,230 25.97
Windcrest Partners 5,680,124 23.39
- --------------------------------
* Based upon sum of (i) 16,860,607 shares outstanding as of June 30, 1995,
as reported in the Corporation's Quarterly Report for the quarter then ended,
(ii) 7,427,162 shares of Common Stock issued by the Corporation upon conversion
of certain Notes on August 15, 1995, and (iii) with respect to any Stockholder,
shares to be issued upon conversion of such Stockholder's Series A 7%
Cumulative Convertible Preferred Stock.
C-5
Exhibit 58
PREMIER PARKS INC.
SUBSCRIPTION AGREEMENT
----------------------
Premier Parks Inc.
11501 Northeast Expressway
Oklahoma City, Oklahoma 73131
Attention: Kieran E. Burke, Chairman of the Board
Gentlemen:
1. Subscription. The undersigned (the "Subscriber"), intending to
------------
be legally bound, hereby agrees to purchase from Premier Parks Inc. (the
"Company"), a Delaware corporation, the number of shares (the "Shares") of
Series A 7% Cumulative Convertible Preferred Stock, par value $1.00 per
share (the "Preferred Stock"), of the Company set forth on the signature
page hereof. This subscription is submitted to the Company in accordance
with and subject to the terms and conditions described in this Agreement,
relating to a placement (the "Placement") to the Subscriber and certain
other purchasers (collectively, the "Purchasers") of up to 200,000 shares
of Preferred Stock (the "Preferred Shares"). The purchase price ("Purchase
Price") of the Preferred Shares shall be $100.00 per Share.
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 the Closing Date, as such term is defined in
the Agreement and Plan of Merger, dated as of June 30, 1995, as in effect
on the date hereof (the "Merger Agreement"), among the
<PAGE>
Company, a wholly-owned subsidiary of the Company, Premier Parks
Acquisition, Inc., Funtime Parks, Inc. ("Funtime") and certain of the
shareholders of Funtime, Parks, Inc., a true and complete copy of which has
been delivered to the Subscriber by the Company. Pursuant to an escrow
agreement (the "Escrow Agreement"), between the Company and Baer Marks &
Upham (the "Escrow Agent"), a true and complete copy of which has been
delivered to the Subscriber by the Company, the Escrow Agent will hold
funds of the Purchasers (collectively, the "Escrow Funds"), respectively,
representing payment of the Purchase Price. If the Closing shall not have
occurred on or prior to September 30, 1995 or, if the Merger Agreement
shall be terminated in accordance with its terms, the Escrow Agent shall
forthwith return the Escrow Funds to the Purchasers, with accrued interest
thereon. For purposes of this Agreement, "business day" shall mean any day
on which banks are not required or authorized to close in the City of New
York. The Company will give the Subscriber at least five business days'
prior written notice of the Closing Date. Except as otherwise provided
herein or in the Escrow Agreement, the subscription by the Subscriber shall
be irrevocable and shall survive the death, incapacity or disability of the
Subscriber; provided, however, that, without limiting any other provision
-------- -------
set forth in this Agreement or the Escrow Agreement, the obligations of the
parties at the Closing shall be conditioned upon the consummation of the
Merger, as defined in the Merger Agreement and the receipt by the
Subscriber of the Supplement (as hereinafter defined) in form and substance
reasonably acceptable to the Subscriber.
(b) Delivery by Company. At the Closing, against receipt of the
-------------------
Purchase Price for the Shares being purchased at such Closing paid by the
Subscriber, and as a condition thereto, the Company shall deliver to the
Subscriber (i) a share certificate
-2-
<PAGE>
registered in the Subscriber's name and representing such Shares, which
certificate shall bear the legend set forth in Section 4.7(d) hereof,
together with any legends required under applicable state securities laws,
(ii) an opinion of Baer Marks & Upham, addressed to the Subscriber and
dated the Closing Date, in form and substance satisfactory to the
Subscriber with respect to the matters set forth in Exhibit A hereto, and
(iii) evidence in form and substance satisfactory to the Subscriber that
the Company has received any and all opinions of counsel to Funtime and its
Shareholders provided for under the Merger Agreement. The Company shall
pay any and all taxes and governmental fees in connection with: (a) the
issuance, sale or delivery by the Company to the Subscriber of the Shares,
and (b) the execution and delivery of this Agreement and any other
documents or instruments executed and delivered to the Subscriber at the
Closing. The Company shall hold the Subscriber harmless, without
limitation as to time, against any and all liabilities with respect to any
such taxes and fees, and such obligations shall survive the transfer of the
Shares, or any of them, and the termination of this Agreement; provided,
--------
however, that such obligations shall not extend to any taxes and
- -------
governmental fees due of the Subscriber of any Shares as a consequence of
its transfer of such Shares, or in respect of any income or gains to such
Subscriber. At the Closing, the Company shall deliver to the Subscriber
such additional certificates, instruments, and other documents in form and
substance satisfactory to the Subscriber as the Subscriber shall have
reasonably requested in connection with the Closing.
(c) Payment of the Purchase Price by the Subscriber. No later
-----------------------------------------------
than two business days prior to the Closing, the Subscriber shall pay the
Purchase Price for the Shares being purchased at the Closing by means of a
bank wire transfer of immediately available funds to the Escrow Agent to an
account, to be held by the Escrow Agent pursuant to the
-3-
<PAGE>
Escrow Agreement, designated in the Company's notice of the Closing
referred to above. The Subscriber must complete the information called for
on the signature page hereof relating to such wire transfer.
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 Preferred
Shares, in whole or in part, at any time prior to the Closing, notwith-
standing prior receipt by the Subscriber of oral or written notice of
acceptance. If this subscription is rejected by the Company in whole or in
part, the Company shall promptly return all funds (or in the case of a
partial rejection, the portion of the funds representing the Purchase Price
of the rejected subscription) received from the Subscriber. If the
subscription is rejected in whole, this Agreement shall thereafter be of no
further force or effect, except as otherwise expressly stated herein.
4. Representations, Warranties and Agreements of Subscriber. The
--------------------------------------------------------
Subscriber hereby acknowledges, represents and warrants to, and agrees
with, the Company, as follows:
4.1 (a) The Subscriber understands that the offering and sale
of the Preferred Shares is intended to be exempt from registration under
the Securities Act of 1933, as amended (the "Act"), by virtue of Section
4(2) of the Act and the provisions of Regulation D promulgated thereunder,
and in accordance therewith and in furtherance thereof, the Subscriber
represents and warrants and agrees as follows:
(b) The Subscriber and/or the Subscriber's adviser(s)
(i) has/have received the Company's Preliminary Confidential Placement
Memorandum, dated July 21, 1995, relating to the issuance by the Company of
its Senior Notes (the "Senior Notes") in
-4-
<PAGE>
connection with the Merger (at the date hereof referred to as the
"Memorandum" and, at Closing, together with a supplement thereto (the
"Supplement") setting forth the principal terms of the Senior Notes not
included in such Preliminary Memorandum herein referred to as the
"Memorandum"), and a copy of the Certificates of Designation relating to
the Preferred Shares (collectively, the "Certificate"), in all material
respects in the form in which it will be filed with the Secretary of State
of the State of Delaware, (ii) has/have carefully reviewed the information
contained therein, and (iii) has/have had access to the same kind of
information which would have been available in a registration statement
filed by the Company under the Act.
(c) The Subscriber acknowledges that the Subscriber, the
Subscriber's attorney, accountant, or adviser(s) has/have had a reasonable
opportunity to inspect all documents, records and books pertaining to this
investment (including, without limitation, the Memorandum).
(d) The Subscriber and/or the Subscriber's adviser(s)
has/have had a reasonable opportunity to ask questions and receive answers
from a person or persons acting on behalf of the Company concerning the
Merger, the issuance of the Senior Notes and the Placement and all such
questions have been answered to the full satisfaction of the Subscriber.
(e) No oral or written information furnished to the
Subscriber or the Subscriber's adviser(s) in connection with the Placement
was in any way inconsistent with the information stated in the Memorandum.
(f) 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
-5-
<PAGE>
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.
(g) 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.
(h) 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.
(i) The Subscriber is not relying on the Company or any
agent of the Company with respect to the tax and other economic
considerations of an investment in the Shares (except as set forth in the
final sentence of Section 2(b) hereof).
(j) The Subscriber will not sell or otherwise transfer the
Shares without registration under the Act and applicable state securities
laws, or pursuant to an exemption therefrom. The Shares have not been
registered under the Act or under the securities laws of any state and,
except as set forth under Section 6 hereof, the Company will be under no
obligation to so register the Shares. The Subscriber represents that the
Subscriber is purchasing the Shares for the Subscriber's own account, for
investment and not
-6-
<PAGE>
with a view to resale or distribution except in compliance with the Act and
applicable state securities laws.
(k) 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 B hereto
as of the date of this Agreement, and if there is any material change in
such status prior to the Closing, the Subscriber will promptly notify the
Company in writing.
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 respect 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
-7-
<PAGE>
has been duly authorized, executed and delivered by the Subscriber and
constitutes the valid and binding agreement of the Subscriber enforceable
against it in accordance with its terms, except as may be limited by
bankruptcy, insolvency or other laws affecting generally the enforceability
of creditors' rights and by limitations on the availability of equitable
remedies.
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. The Shares have
not been recommended by any federal or state securities commission or
regulatory authority. Furthermore, the foregoing authorities have not
confirmed the accuracy or determined the adequacy of the Memorandum or this
Agreement. Any representation to the contrary is a criminal offense.
(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.
-8-
<PAGE>
(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 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, the certificates representing the shares of
Preferred Stock issuable as dividends on the Preferred Shares (the
"Dividend Shares") and the certificates representing the shares (the
"Conversion Shares") of the Company's common stock, par value $.01 per
share ("Common Stock") into which the Preferred Shares are convertible,
shall bear a legend in substantially the following form, together with any
legend required by applicable state securities law, and the Subscriber
shall not transfer any or all of the Shares, the Dividend Shares, the
Conversion Shares or any interest therein, except in accordance with the
terms of such legends:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act") or
applicable state securities laws, and may be offered, sold or
otherwise transferred only if so registered under the Act and
applicable state securities laws or if the holder has delivered to the
Company an opinion of counsel, which counsel and opinion shall be
satisfactory to the Company, that an exemption from such registration
is available."
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
-9-
<PAGE>
laws of its jurisdiction of organization. The Subsidiaries own and operate
the themed amusement and water parks described in the Memorandum as owned
by them. Each of the Company and its Subsidiaries is duly qualified and in
good standing in each jurisdiction in which the character or location of
its properties or the nature or conduct of its business makes such
qualification necessary, except where the failure to be so qualified or in
good standing would not, in the aggregate, have a material adverse effect
on the financial condition of the Company and its Subsidiaries, taken as a
whole. Each of the Company and its Subsidiaries has all requisite
corporate power and authority, and all material consents, approvals,
authorizations, orders, registrations, qualifications, licenses and permits
of and from all public, regulatory or governmental agencies and bodies, to
own, lease and operate its properties and conduct its business as now being
conducted.
(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
-10-
<PAGE>
of preemptive rights. Prior to the Placement, the capitalization of the
Company was as set forth in the Memorandum. Prior to the Closing, the
Company shall not issue any shares of Preferred Stock (except in the
Placement) or, except as described in the Memorandum, any shares of Common
Stock, or securities convertible into or exercisable with respect to any
such shares. Except as disclosed in the Memorandum, there are no
subscriptions, warrants, options, calls, commitments by or arrangements to
which the Company is bound relating to the issuance or purchase of any
shares of capital stock of the Company.
(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 materially interfere
with or materially impair the present use of such property in the normal
conduct of the business of the Company or such Subsidiary.
(f) Subsequent to March 31, 1995, and except as disclosed in the
Memorandum, there has not occurred any material adverse change in the
condition (financial or otherwise), earnings or business prospects of the
Company and its Subsidiaries, taken as a whole.
-11-
<PAGE>
(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
the Merger Agreement or this Agreement. As a condition to Closing on the
part of the Subscriber, no action, suit or proceeding against the Company
or the Subscriber relating to the consummation of the Placement nor any
government action seeking to delay or enjoin any such transaction shall be
pending or threatened.
(h) The historical consolidated financial statements of the
Company contained in the Memorandum present fairly the financial condition
and results of operations of the Company and its Subsidiaries as of the
respective dates and for the respective periods indicated therein and were
prepared in accordance with generally accepted accounting principles
applied on a consistent basis. To the best of the knowledge of the
Company, based upon information provided to it in connection with the
Merger, the consolidated financial statements of Funtime contained in the
Memorandum present fairly the financial condition and results of operations
of Funtime and its subsidiaries as of the respective dates and for the
respective periods indicated therein and were prepared in accordance with
generally accepted accounting principles applied on a consistent basis.
The pro forma adjustments have been properly applied to historical amounts,
in all material respects in accordance with Regulation S-X of the SEC (as
defined), in the preparation of the pro forma financial statements included
in the Memorandum.
-12-
<PAGE>
(i) The Company has full corporate power and authority to enter
into this Agreement and to issue and sell the Preferred Shares on the terms
and conditions set forth herein. The execution and delivery of this
Agreement, the Merger Agreement, the Senior Notes and the consummation of
the transactions contemplated hereby and thereby have been duly and validly
authorized and approved by all necessary corporate action on the part of
the Company. At the Closing, the Subscriber shall have received a
certificate of the Secretary or an Assistant Secretary of the Company in
form and substance satisfactory to the Subscriber, with respect to the
authorization by the Board of Directors of the Company of this Agreement
and the Certificate and the consummation of the transactions contemplated
hereby. As of the Closing, this Agreement, the Merger Agreement and the
Senior Notes will have been duly executed and delivered and will constitute
the valid and binding obligations of the Company enforceable in accordance
with their respective terms.
(j) The Company has previously furnished the Subscriber with
true and complete copies of the Memorandum. As of the date hereof the
information in the Memorandum does not, and as of the date of the
Supplement, the information in the Memorandum relating to the Company or
the Subsidiaries shall not, contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein
not misleading. To the knowledge of the Company, based upon information
provided to it in connection with the Merger, as of the date hereof the
information in the Memorandum relating to Funtime, and its subsidiaries
does not, and as of the date of the Supplement, the information in the
Memorandum relating to Funtime and its subsidiaries shall not, contain any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading.
-13-
<PAGE>
(k) The Company has delivered to the Subscriber a true and
complete copy of the Merger Agreement. The Merger Agreement is in full
force and effect. Neither the Company or any subsidiary of the Company,
nor, to the best of the knowledge of the Company, Funtime or any
stockholder of Funtime is in default in any material respect under the
Merger Agreement. No event has occurred or, to the best of the knowledge
of the Company, is alleged to have occurred, which constitutes or, with
lapse of time or giving of notice or both, would constitute such a default
or a basis for a claim of force majeure or other claim of excusable delay
----- -------
or non-performance under the Merger Agreement by the Company or any
subsidiary of the Company or, to the best of the knowledge of the Company,
by Funtime or any stockholder of Funtime. To the best of the knowledge of
the Company, based upon information provided to it in connection with the
Merger, the representations and warranties of Funtime and its stockholders,
and each of them, under the Merger Agreement are true and correct in all
material respects.
(l) The Certificate will have been duly filed with the Secretary
of State of the State of Delaware prior to the Closing. The Preferred
Shares, the Dividend Shares and the Conversion Shares, when issued,
delivered and paid for in accordance with the terms hereof and the
Certificate, will be duly and validly issued, fully paid and non-assessable
and shall be free and clear of all liens, claims and encumbrances. The
Dividend Shares and the Conversion Shares have been duly reserved for
issuance by the Company. There are no preemptive rights with respect to
any shares of the capital stock of the Company, including, without
limitation, the Shares or the Conversion Shares.
(m) The execution, delivery and performance of this Agreement,
the Merger Agreement or the Senior Notes by the Company (i) will not
constitute a default under
-14-
<PAGE>
or conflict with the Company's charter or bylaws or any agreement or other
instrument to which the Company or any Subsidiary is a party or by which
the Company or any Subsidiary, or any of their respective assets, is bound,
(ii) will not conflict with or violate any order, judgment, decree,
statute, ordinance or regulation applicable to the Company or any
Subsidiary and (iii) do not require the consent of any person or entity,
except as disclosed in writing to the Subscriber, all of which will have
been obtained prior to the Closing Date.
(n) Neither the Company nor anyone acting on its behalf has
directly or indirectly offered any securities for sale to, or solicited any
offer to buy any of the same from, anyone so as to bring the offer, sale,
issuance and/or delivery of the Preferred Shares, the Dividend Shares or
the Conversion Shares, or any of them, within the registration requirements
of the Act. Assuming representations and warranties of the Purchasers
contained in this Agreement and the other Subscription Agreements are true
and correct, neither the offer, sale, issuance and/or delivery of the
Preferred Shares, the Dividend Shares or the Conversion Shares, nor any of
them, hereunder will result in any contravention of any applicable federal
or state securities laws, and will not require any approval or consent of
any governmental authority, commission or agency (other than filings under
applicable state securities law required to be made by the Company which
the Company shall effectuate on a timely basis).
The representation, warranties and agreements of the Company
contained herein shall, as a condition to Closing on the part of the
Subscriber, be true and correct in all material respects on and as of the
Closing Date of the sale of the Shares as if made on and as of such date
and shall survive the execution and delivery of this Agreement and the sale
of
-15-
<PAGE>
the Shares, and the Company shall have delivered to the Subscriber a
certificate to that effect, dated the Closing Date, executed by its
Chairman, President or one of its Vice Presidents.
6. Registration Rights.
-------------------
6.1 Demand Registration
-------------------
(a) If the Company shall receive at any time after December
31, 1996 a written request from the holders of a majority of the Conversion
Shares (assuming for the purpose of such request and the determination of
such holders that all Preferred Shares outstanding on the date of such
request had been converted into Conversion Shares) for registration with
the Securities and Exchange Commission ("SEC") under the Act of all or part
of such holders' Registrable Securities (as hereinafter defined), within
ten days thereafter, the Company shall give written notice of such
registration request to all holders of record ("Holders") of Registrable
Securities. All requests made pursuant to this paragraph (a) shall specify
the number of Registrable Securities to be registered and shall also
specify the intended methods of disposition thereof; provided, however,
-------- -------
that if the Holders of a majority of the Registrable Securities requested
to be included in such registration request an underwritten offering, the
method of disposition shall be such an offering. As used herein, the term
"Registrable Securities" shall mean (i) the Conversion Shares and (ii) any
securities issued or issuable with respect to the Conversion Shares by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization;
provided, however, that a security shall cease to be a Registrable Security
- -------- -------
when it shall no longer be a "Restricted Security". "Restricted Security"
shall mean any security unless or until: (i) it has been registered under
the Act; (ii) it is distributed to
-16-
<PAGE>
the public pursuant to Rule 144 under the Act or is then capable of being
sold by the Holder thereof pursuant to Rule 144(k) (or any similar
provisions then in force); or (iii) it has otherwise been transferred and a
new certificate or other evidence of ownership for it not bearing a
restrictive legend pursuant to the Act and not subject to any stop transfer
order has been delivered by or on behalf of the Company.
(b) Following the receipt by the Company of the notice
referred to in Section 6(a) above, the Company shall within 90 days prepare
and file with the SEC a registration statement under the Act (a
"Registration Statement") and shall use its reasonable good faith efforts
to effect the registration of the aggregate number of Registrable
Securities designated in such notice and in any written notice from any
other Holder received by the Company within 15 days following the delivery
of the Company's notice to all Holders referred to in Section 6(a), all to
the extent necessary to permit the disposition (in accordance with the
intended methods thereof) by the Holders of Registrable Securities included
in such Registration Statement. The Company will use its best efforts to
keep current the prospectus included in such Registration Statement (a
"Prospectus") for the period reasonably necessary to effect the sale of
such Registrable Securities, which period shall not exceed nine (9) months
after the effective date of the Registration Statement (or, if the Company
is entitled to file the Registration Statement on Form S-3, two years
thereafter). If the registration is being made in connection with an
underwritten offering, the managing underwriter shall be selected by the
holders of a majority of the Registrable Securities to be included in such
Registration Statement, and shall be reasonably acceptable to the Company.
(c) Subject to the provisions of paragraph (d) below, the
Holders of Registrable Securities shall be entitled to two registrations
pursuant to this Section 6.1;
-17-
<PAGE>
provided, however, that the Company's obligation with respect to each such
- -------- -------
demand shall be deemed satisfied only when a Registration Statement
covering all Registrable Securities specified in a request for a
registration under this Section 6.1, for sale in accordance with the method
of disposition specified in such request, shall have become effective.
(d) If (i) the Holders of a majority of the Registrable
Securities included in any Registration Statement determine for any reason
not to proceed with a registration pursuant to this Section 6.1 at any time
before the Registration Statement has been declared effective by the SEC
and (if such Registration Statement has then been filed with the SEC or a
period of 30 days has elapsed since the date the Company has received from
such Holders a written request for registration pursuant to Section 6.1(a))
or (ii) the Registration Statement, which has been declared effective,
relates to a firm commitment underwritten public offering and the sale of
the included Registrable Securities to the underwriter does not occur for
any reason, and such Holders do not agree to bear their own expenses
---
incurred in connection therewith and to reimburse the Company for the
reasonable expenses incurred by it attributable to the registration of such
Registrable Securities, then such Holders shall be deemed to have exercised
one of their two rights to require the Company to register Registrable
Securities pursuant to this Section 6.1.
(e) If, prior to the time any written request for
registration is received by the Company pursuant to this Section 6.1, the
Company by action of its board of directors or any duly authorized
committee thereof has determined to proceed with the preparation and filing
of a Registration Statement under the Act in connection with the proposed
offer and sale for cash of any of its securities by it, such written
request shall be deemed to have been given pursuant to Section 6.2 rather
than this Section 6.1, the Holders'
-18-
<PAGE>
rights with respect to such request shall be governed by Section 6.2 and
the Holders shall not be deemed to have exercised their rights to require
the Company to register Registrable Securities pursuant to this Section
6.1.
(f) The Company shall not have the right to include any of
its securities in any registration initiated under this Section 6.1. The
Holders acknowledge that, as of the Closing, the holders (the "Prior
Holders") of approximately 21,000,000 shares of Common Stock pursuant to
(i) Subscription Agreements dated October 1992 and October 1994 and (ii) a
Registration Rights Agreement, dated March 8, 1995 (collectively, the
"Prior Agreements") will have the right to include such shares of Common
Stock in a Registration Statement under Section 6.1 to the extent provided
in the Prior Agreements. Other than the Prior Holders, no securityholder
of the Company shall be entitled to include securities in a Registration
Statement under Section 6.1. The Prior Holders may not include shares of
Common Stock therein unless:
(i) if any of the Registrable Securities covered by
such registration are to be sold in an underwritten offering, the Prior
Holders agree in writing to sell their securities on the same terms and
conditions as apply to the Registrable Securities being sold; and
(ii) if any of the Registrable Securities covered
by such registration are to be sold in an underwritten offering and the
managing underwriters shall have advised the Holders of Registrable
Securities demanding such registration that, in their opinion, the total
number or dollar amount of the securities requested to be included in such
registration by the Prior Holders, together with the Registrable Securities
demanded to be
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<PAGE>
registered hereunder, exceeds the number of securities which can be sold in
such offering, the Company shall include in such registration:
(A) first, all securities requested to be
-----
included in such registration by the Holders of Registrable Securities
demanding such registration; and
(B) second, the number of such shares of Common
------
Stock requested to be included in such registration in excess of the number
of securities the holders of Registrable Securities demanding such
registration propose to sell which, in the opinion of such underwriters,
can be sold (allocated pro rata among the Prior Holders on the basis of the
number of shares requested to be included therein by each such holder).
6.2 Piggyback Registration. (a) If the Company proposes to
----------------------
register any shares of Common Stock under the Act (other than in connection
with a merger, consolidation or similar plan of acquisition or pursuant to
Forms S-4 or S-8 or comparable or successor registration forms or pursuant
to the Shelf Registration as such term is defined in the Prior Agreements)
it will give written notice thereof at least 30 days prior to the filing of
each such Registration Statement to each of the Holders. If any Holder
notifies the Company in writing within 20 days after receipt of any such
notice of its desire to include Registrable Securities in the proposed
Registration Statement, the Company shall afford such Holder the
opportunity to have its Registrable Securities registered pursuant to such
Registration Statement.
(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 Registrable Securities of
any Holder who does not accept the terms of the underwriting as agreed to
by the Company (or, in the case of a secondary registration, the
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<PAGE>
securityholders initiating such registration) and the underwriters selected
by the Company or such securityholders, and then only in such quantity as
will not (in the opinion of such underwriters) adversely affect the success
of the offering by the Company or such securityholders. If the total
amount of securities (including Registrable Securities) to be included in
such Registration Statement exceeds the amount that the underwriters
reasonably believe compatible with the success of the offering, then the
Company shall be required to include in the offering:
A. If the registration is a primary registration on
behalf of the Company:
(i) first, all shares of Common Stock the Company
-----
proposes to sell; and
(ii) second, the number of Registrable
------
Securities and such other shares of Common Stock requested to be included
in such registration in excess of the shares the Company proposes to sell
which, in the opinion of such underwriter, can be sold (allocated pro rata
among the Holders and the holders of such other shares of Common Stock on
the basis of the number of securities requested to be included therein by
each such Holder and holder).
B. If the registration is a secondary registration on
behalf of holders of Common Stock:
(i) first, all shares of Common Stock requested
-----
to be included in such registration by the securityholders initiating the
registration; and
---
(ii) second, the number of Registrable
------
Securities and such other shares of Common Stock requested to be included
in such registration in excess of
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<PAGE>
the shares such initiating holders propose to sell which, in the opinion of
such underwriters, can be sold (allocated pro rata among the Holders and
the holders of such other shares of Common Stock on the basis of the number
of securities requested to be included therein by each such Holder and
holder).
(c) Notwithstanding any provision of this Section 6, the
Company shall have the right with respect to any primary registration on
its behalf at any time after it shall have given written notice pursuant to
this Section 6.2 (irrespective of whether a written request for inclusion
of any Registrable Securities shall have been made) to elect not to file
any such proposed Registration Statement, or to withdraw the same after the
filing but prior to the effective date thereof.
6.3 Holdback Agreements. (a) Each Holder of Registrable
-------------------
Securities agrees, if requested by the managing underwriters of any
Registration Statement filed pursuant to Section 6.1 or 6.2 or any primary
Registration Statement filed by the Company on its behalf, not to effect
any public sale or distribution of securities of the Company of the same
class as the securities included in such Registration Statement, including
a sale pursuant to Rule 144 under the Act (except as part of such
underwritten registration) during the ten-day period prior to, and during
the 90-day period beginning on, the closing date of each such underwritten
offering, without the consent of the managing underwriters, to the extent
such Holder is timely notified in writing by the Company or the managing
underwriters.
(b) The Company agrees:
(i) at the request of the managing underwriters of
each underwritten offering made pursuant to a Registration Statement filed
under Section 6.1 hereof, not to effect any public or private sale or
distribution of its equity securities, or any
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<PAGE>
securities convertible into or exchangeable or exercisable for such equity
securities, including a sale pursuant to Regulation D under the Act, during
the ten-day period prior to and during the 90-day period beginning on, the
closing date of such underwritten offering, without the consent of the
managing underwriters, to the extent the Company is timely notified in
writing by the managing underwriters (except as part of such underwritten
registration or pursuant to registrations on Form S-4 or S-8 or any
successor form to such Forms); and
(ii) at the request of the managing underwriters,
to use best efforts to cause each officer and director of the Company who
is a holder of its equity securities, or any securities convertible into or
exchangeable or exercisable for such equity securities, to agree not to
effect any public sale or distribution of any such securities during such
period, including a sale pursuant to Rule 144 under the Act (except as part
of such underwritten registration, if permitted, or with the consent of the
managing underwriter of such underwritten offering).
6.4 Registration Procedures. In connection with any
-----------------------
registration of Registrable Securities under Section 6.1 or 6.2 the Company
agrees as follows:
(a) before filing a Registration Statement or a Prospectus
or any amendments or supplements thereto (excluding documents incorporated
by reference), furnish to the Holders and the underwriters, if any, copies
of all such documents proposed to be filed, and the Company shall not file
any Registration Statement or amendment or supplement thereto or Prospectus
to which the holders of a majority of the Registrable Securities covered in
such Registration Statement or the underwriters, if any, shall reasonably
object;
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<PAGE>
(b) in the case of a registration pursuant to Section 6.1,
(i) prepare and file with the SEC such amendments or supplements to the
Prospectus and such post-effective amendments to the Registration Statement
as may be necessary to keep the Prospectus current for the period set forth
in Section 6.1(b), and (ii) otherwise comply with the provisions of the Act
applicable to it in connection with the offer and sale of the Registrable
Securities pursuant to the Registration Statement during the period
referred to in Section 6.1(b) in accordance with the intended methods of
disposition by the Holders set forth in such Registration Statement;
(c) notify the Holders of Registrable Securities being
registered and the managing underwriters, if any, promptly, and (if
requested by any such person) confirm such advice in writing (1) when the
Registration Statement, the Prospectus or any supplement or amendment
thereto has been filed, and, with respect to the Registration Statement or
any post-effective amendment thereto, when the same has become effective,
(2) of any request by the SEC for amendments or supplements to the
Registration Statement or the Prospectus or for additional information, (3)
of the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose, (4) if at any time the representations and warranties of the
Company contemplated by Section (j) below cease to be true and correct, (5)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose, and (6) of the happening of any event which makes any
statement made in the Registration Statement, the Prospectus or any
document incorporated therein by reference untrue in any material respect
or which requires the making of any changes in the Registration Statement,
-24-
<PAGE>
the Prospectus or any document incorporated therein by reference in order
to make the statements therein not misleading in any material respect;
(d) use reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(e) if requested by the managing underwriters or the
Holders of a majority of the Registrable Securities being registered,
incorporate in the Registration Statement, the Prospectus or any supplement
or amendment thereto such information as the managing underwriters or such
Holders agree should be included therein relating to the distribution of
the Registrable Securities, including, without limitation, with respect to
the number of Registrable Securities being sold to such underwriters, the
purchase price being paid therefor by such underwriters and any other terms
of the underwritten offering of the Registrable Securities to be sold in
such offering; and make all required filings of any such Registration
Statement, Prospectus, amendment or supplement as soon as practicable
following the notification of the matters to be incorporated therein;
(f) furnish to each Holder of the Registrable Securities
being registered and each managing underwriter, without charge, at least
one signed copy of the Registration Statement and any amendment thereto,
including financial statements and schedules and all documents incorporated
therein by reference;
(g) deliver to each Holder of Registrable Securities being
registered and the underwriters, if any, without charge, as many copies of
the Prospectus and any amendment or supplement thereto as such persons may
reasonably request; the Company consents to the use of the Prospectus or
any amendment or supplement thereto by each of the
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<PAGE>
Holders and the underwriters, if any, in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities,
use reasonable efforts to register or qualify, and to cooperate with the
Holders, the underwriters, if any, and their respective counsel in
connection with the registration or qualification of, such Registrable
Securities for offer and sale under the securities or blue sky of such
jurisdictions as any such Holder or underwriter reasonably requests in
writing; provided that the Company will not be required to qualify
--------
generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service
of process in any such jurisdiction where it is not then so subject;
(i) upon the occurrence of any event contemplated by
Section (c)(6) above, prepare a post-effective amendment to the
Registration Statement and/or a supplement to the Prospectus and/or an
amendment to any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading;
(j) enter into such agreements (including an underwriting
agreement) in order to expedite or facilitate the disposition of the
Registrable Securities and in such connection, whether or not an
underwriting agreement is entered into and whether or not the registration
is an underwritten registration (1) make such representations and
warranties to the Holders of Registrable Securities being registered and
the underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings and
confirm the accuracy of the same if and when
-26-
<PAGE>
customarily requested; (2) obtain opinions of counsel to the Company and
updates thereof addressed to each such Holders and the underwriters, if
any, covering the matters customary in underwritten primary offerings; (3)
obtain "cold comfort" letters and updates thereof from the Company's
independent certified public accountants addressed to such Holders and the
underwriters, if any, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters to
underwriters in connection with primary underwritten offerings; (4) if an
underwriting agreement is entered into, the same shall set forth
indemnification and contribution provisions and procedures substantially
equivalent to those contained in Section 6.6 hereof with respect to all
parties to be indemnified pursuant to said Section; and
(k) use its best efforts to list the Registrable Securities
on the securities exchange on which the Company's Common Stock is then
listed, if any.
The Company may require each Holder to furnish to the Company
such information regarding the distribution of the Registrable Securities
as the Company may from time to time reasonably request in writing.
Each Holder agrees by acquisition of Preferred Shares or
Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 6.4(i) hereof,
such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6.4(i) hereof, or until it is advised in writing by
the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings which are incorporated by
reference in the Prospectus, and, if so directed by the
-27-
<PAGE>
Company, each Holder will deliver to the Company all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities at the time of receipt of such notice.
6.5 Registration Expenses.
---------------------
Except as otherwise provided below, all expenses incident to the
Company's performance of or compliance with this Section 6, including,
without limitation, all registration and filing fees, including with
respect to filings required to be made with the National Association of
Securities Dealers, fees and expenses of compliance with state securities
or blue sky laws (including reasonable fees and disbursements of counsel
for the underwriters in connection with blue sky qualifications of the
Registrable Securities under the laws of such jurisdictions as the managing
underwriters may designate), printing expenses, mailing and delivery
expenses, and fees and disbursements of counsel for the Company, and of all
independent certified public accountants (including the expenses of any
"cold comfort" letters required by or incident to such performance) will be
borne by the Company. The Company shall not be liable for, and the Holders
shall bear, any discounts, commissions, selling fees of or other payments
to, underwriters, selling brokers or similar persons relating to the
distribution of the Registrable Securities and the fees and expenses of
counsel for such Holder. Except as provided above, any underwriter shall
bear the fees and expenses of its counsel. The Company shall not be liable
for any stock transfer taxes in connection with any resale of Registrable
Securities by a Holder.
6.6 Indemnification.
---------------
(a) The Company will indemnify and hold each Holder, each
officer, director or partner thereof, each underwriter involved in the
offering of Registrable
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<PAGE>
Securities pursuant to a Registration Statement, and each person who
controls any such Holder or any such underwriter within the meaning of
Section 15 of the Act or Section 20 of the Securities Exchange Act of 1934
(the "1934 Act") (each such Holder, each such underwriter and each such
controlling person being referred to as an "Indemnified Person") harmless
from and against any and all losses, claims, damages, liabilities and
expenses arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
or the Prospectus, or in any amendment or supplement thereto, or arising
out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which
they were made, except insofar as such losses, claims, damages, liabilities
or expenses arise out of or are based upon any untrue statement or omission
or allegation thereof based upon information furnished in writing to the
Company by such Indemnified Person expressly for use therein.
Notwithstanding the foregoing, the Company shall not be obligated to so
indemnify any such Holder, underwriter or controlling person with respect
to any such loss, claim, damage, liability or expense arising out of the
failure by such Holder or underwriter to comply with the prospectus
delivery requirements under the Act and the rules and regulations
promulgated thereunder.
(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
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<PAGE>
Indemnified Person shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Company has agreed to pay such fees and expenses; or (ii)
the Company shall have failed to assume the defense of such action or
proceeding and employ counsel in such action or proceeding; or (iii) the
named parties to any such action or proceeding (including any impleaded
parties) include both such Indemnified Person and the Company, and such
Indemnified Person shall have been advised by counsel that there is
reasonable likelihood that a conflict of interest will exist between such
Indemnified Person and the Company (in which case, if such Indemnified
Person notifies the Company in writing that it elects to employ separate
counsel at the expense of the Company, the Company will not have the right
to assume the defense of such action or proceeding on behalf of such
Indemnified Person); provided, however, that the Company will not, in
connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings arising out of the
same general allegations or circumstances be liable for the fees and
expenses of more than one separate firm of attorneys at any time for all
such Indemnified Persons, which firm shall be designated in writing by a
majority in interest of such Indemnified Persons. The Company shall not be
liable for any default judgment caused by any Indemnified Person or
settlement of any such action or proceeding or confession of judgment
without its prior written consent, but if settled with its written consent,
or if there be a final judgment (other than such default judgment) for the
plaintiff in any such action or proceeding, the Company agrees to indemnify
and hold harmless such Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. If the Company agrees
to a settlement of an action or proceeding against an
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<PAGE>
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.
(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 6.6(a), but only (i) with
respect to untrue statements, alleged untrue statements, omissions or
alleged omissions relating to such Holder or an Indemnified Person who is
such by reason of such person's relationship to such Holder, furnished in
writing by such Holder or such person to the Company expressly for use in
the Registration Statement or the Prospectus, or any amendment or
supplement thereto and (ii) with respect to any failure by such Holder to
comply with the prospectus delivery requirements under the Act and the
rules and regulations thereunder. In case any action or proceeding shall
be brought against the Company or its officers or directors or any such
controlling person in respect of which indemnity may be sought against a
Holder under the provisions of this Section 6.6(c), such Holder shall have
the rights and duties given to the Company and each of the Company or its
directors or its officers or its controlling persons shall have the rights
and duties given to each Holder and other Indemnified Persons, under the
terms of Section 6.6(b) above. In no event shall the obligation of the
Holder hereunder be greater than the dollar amount of the
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<PAGE>
proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligations.
(d) If the indemnification provided for under Section
6.6(a) or Section 6.6(c) hereof is unavailable to an indemnified party
thereunder in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative benefits to the Company, on the one
hand, and the Holders, on the other, of the transactions contemplated by
the Registration Statement, the relative fault of the Company, on the one
hand, and of the Holders, on the other, in connection with the statements
or omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative fault of the Company, on the one hand, and of the Holders, on the
other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by the Company or by
such Holders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. Notwithstanding the provisions of this paragraph (d), no Holder
shall be required to contribute any amount in excess of the amount by which
the net proceeds from the sale of its shares exceeds the amount of any
damages it has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Subsection 11(f) of
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<PAGE>
the Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
6.7 Assignment of Registration Rights. The rights to cause the
---------------------------------
Company to register Registrable Securities pursuant to this Section 6 may
be assigned by a Holder to a transferee or assignee of the Preferred Shares
or the Registrable Securities, or any of them; provided that (a) the
--------
Company is furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and (b) immediately following such
transfer, such securities shall constitute Restricted Securities.
6.8 Amendment of Registration Rights. Any provision of this
--------------------------------
Section 6 may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the
Holders of a majority of the Registrable Securities (assuming for this
purpose all Preferred Shares then outstanding had been converted). Any
amendment or waiver effected in accordance with this Section 6.8 shall be
binding upon each holder of any Preferred Shares, each Holder of
Registrable Securities and the Company.
6.9 Rule 144. The Company covenants that it shall file the
--------
reports and documents required to be filed by it under the Act and the 34
Act and the rules and regulations adopted by the SEC thereunder to the
extent required from time to time to enable Holders to sell Registrable
Securities without registration under the Act pursuant to Rule 144
thereunder, as such rule may be amended from time to time, or any successor
rule or regulation hereafter adopted by the SEC.
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<PAGE>
6.10 Termination of Registration Rights. The provisions of this
----------------------------------
Section 6 (other than Section 6.6 with respect to any then pending claim
for indemnification thereunder), and the rights and obligations of the
parties under such provisions, will terminate on the earlier of (i) the
fifth anniversary of the Closing or (ii) in the case of a Holder's rights
under Section 6.1, the date on which the number of Registrable Securities
shall be less than 500,000 Conversion Shares, which number shall be
proportionately adjusted in the event of any stock splits, stock dividends,
combinations or recapitalizations involving the Common Stock.
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 reports, documents and other filings made pursuant to
Section 13 or 15(d) of the 34 Act.
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
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<PAGE>
so delivered personally, telegraphed or sent by facsimile transmission or,
if mailed by certified or registered mail, three days after the date of
deposit in the mails, as follows:
if to the Company, one copy to:
Premier Parks Inc.
122 East 42nd Street
New York, New York 10168
Attn: Kieran E. Burke
Telecopier: (212) 949-6203
with a copy to:
Baer Marks & Upham
805 Third Avenue, 20th Floor
New York, New York 10022
Attn: James M. Coughlin
Telecopier: (212) 702-5810
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
----------
6.8, this Agreement may not be amended nor shall any waiver, change,
modification, consent or discharge be effected except by an instrument in
writing executed by or on behalf of the
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<PAGE>
party against whom enforcement of any amendment, waiver, change,
modification, consent or discharge is sought.
(e) No Waiver. Any failure or delay on the part of a party
---------
in exercising any power or right hereunder shall not operate as a waiver
thereof, nor shall any single or partial exercise of any such right or
power preclude any other or further exercise thereof or the exercise of any
other right or power hereunder or otherwise available in law or in equity.
(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 6.7, this Agreement may not be assigned by either
party without the express written consent of the other and any purported
assignment, unless so consented to, shall be void and without effect.
Except as provided in Section 6.7, nothing herein express or implied is
intended or shall be construed to confer upon or to give anyone other than
the parties hereto and their respective representatives and successors any
rights or benefits under or by reason of this Agreement.
-36-
<PAGE>
(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 hereon
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.
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<PAGE>
IN WITNESS WHEREOF, the Subscriber hereto has executed this Agreement
as of the ____ day of ___________, 1995.
Number of Shares:
-----------------------
Aggregate Purchase Price: $
---------------
----------------------------------------
Name of Subscriber [Typed or Printed]
----------------------------------------
Signature(s) and title, if applicable
Address:
--------------------------------
----------------------------------------
----------------------------------------
Telecopier Number:
----------------------
Wire Transfer Information:
Name of Transferring Bank:
----------------------------------------
Name of Account:
------------------------
Account Number:
-------------------------
Accepted as of ________ ___, 1995
PREMIER PARKS INC.
By:_______________________________________
Kieran E. Burke
Chairman of the Board
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<PAGE>
EXHIBIT A
---------
[Form of Opinion of Baer Marks & Upham]
(a) Each of the Company and Tierco Maryland, Inc., Frontier City
Properties, Inc., Tierco Water Park, Inc. and Frontier City Partners
Limited Partnership (individually, a "Subsidiary" and collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation or other business entity in good standing under the laws of its
jurisdiction of organization. Each of the Company and its Subsidiaries is
duly qualified and in good standing in each jurisdiction in which the
character or location of its properties or the nature or conduct of its
business makes such qualification necessary, except where the failure to be
so qualified or in good standing would not, in the aggregate, have a
material adverse effect on the financial condition of the Company and its
Subsidiaries, taken as a whole. Each of the Company and its Subsidiaries
has all requisite corporate power and authority to own, lease and operate
its properties and conduct its business as now being conducted.
(b) To the knowledge of such counsel, neither the Company nor any
Subsidiary is in violation of its charter or by-laws (or other
organizational documents) or in default in any material respect under any
indenture, mortgage, deed of trust, note, bank loan or credit agreement, or
any other agreement or instrument known to such counsel and which is
material to the Company and its Subsidiaries, taken as a whole, to which
the Company or any Subsidiary is a party or by which they are bound. To
the knowledge of such counsel, each of the Company and its Subsidiaries is
in compliance with all federal and New York State laws, rules, regulations
and all judgments, orders and decrees known to such counsel of any
government or governmental agency or instrumentality applicable to its
business and properties, except where the failure to so comply would not,
in the aggregate, have a material adverse effect upon the financial
condition of the Company and its Subsidiaries, taken as a whole.
(c) All of the outstanding shares of Common Stock have been duly
authorized and are validly issued and outstanding and are fully paid and
non-assessable, free of preemptive rights, and prior to the Placement, the
capitalization of the Company was as set forth in the Memorandum.
(d) To the knowledge of such counsel, (i) all of the issued and
outstanding capital stock (or other equity interest) of each Subsidiary has
been duly and validly issued and is fully paid and non-assessable and is
owned directly or indirectly by the Company and (ii) there are no
outstanding warrants or options to acquire, or instruments convertible into
or exchangeable for, any shares of capital stock (or other equity
interests) of any Subsidiary.
(e) To the knowledge of such counsel, there is no action, suit or
proceeding before or by any court or governmental agency now pending
against the Company or any Subsidiary that would result in a material
adverse change in the condition (financial or
<PAGE>
otherwise) or earnings of the Company and its Subsidiaries, taken as a
whole, or that would materially and adversely affect the consummation of
the transactions contemplated by the Merger Agreement or Subscription
Agreements.
(f) The Company has full corporate power and authority to enter into
the Subscription Agreements and to issue and sell the Preferred Shares on
the terms and conditions set forth therein. The execution and delivery of
the Subscription Agreements, the Merger Agreement, the Senior Notes and the
consummation of the transactions contemplated thereby have been duly and
validly authorized and approved by all necessary corporate action on the
part of the Company. The Subscription Agreements, the Merger Agreement and
the Senior Notes have been duly executed and delivered and constitute the
valid and binding obligations of the Company enforceable in accordance with
their respective terms, except as such obligations and their enforceability
may be limited by applicable bankruptcy and other similar laws affecting
the enforcement of creditors' rights generally, except that the
availability of equitable remedies is subject to the discretion of the
court before which any proceeding therefor may be brought (whether at law
or in equity) and except that the rights to indemnification provided for
therein are limited by federal and state securities laws.
(g) The Certificate has been duly filed with the Secretary of State
of the State of Delaware. The Preferred Shares, the Dividend Shares and
the Conversion Shares, when issued, delivered and paid for in accordance
with the terms of the Subscription Agreements and the Certificate, will be
duly and validly issued, fully paid and non-assessable and shall be free
and clear of all liens, claims and encumbrances. The Dividend Shares and
the Conversion Shares have been duly reserved for issuance by the Company.
Upon the filing of a certificate of merger in the offices of the Secretary
of State of the State of Ohio in evidence of the terms of the Merger
Agreement, the merger pursuant to the Merger Agreement shall become
effective.
(h) The execution, delivery and performance of the Subscription
Agreements, the Merger Agreement or the Senior Notes by the Company (i)
will not constitute a default under or conflict with the Company's charter
or bylaws or any agreement or other instrument known to such counsel to
which the Company or any Subsidiary is a party or by which the Company or
any Subsidiary is bound, (ii) will not conflict with or violate any order,
judgment or decree known to such counsel applicable to the Company or any
Subsidiary and (iii) to the knowledge of such counsel, do not require the
consent of any person or entity, other than those that will have been
obtained prior to the Closing Date.
(i) Assuming the accuracy of the representations and warranties of
the Subscribers contained in Section 4 of the Subscription Agreements, the
issuance and sale of the Preferred Shares is exempt from the registration
requirements of the Act.
<PAGE>
EXHIBIT B
---------
Under Regulation D promulgated under the Securities Act of 1933, as
amended, an "accredited investor" is:
(a) A natural person who had individual income of more than $200,000 in
each of the most recent two years, or joint income with that person's
spouse in excess of $300,000 in each of the most recent two years and
who reasonably expects to reach that same income level for the current
year. For this purpose, "individual income" means adjusted gross
-------------------
income, as reported for federal income tax purposes, less any income
attributable to a spouse or to property owned by a spouse, (A)
increased by the individuals share (and not a spouse's share) of: (i)
the amount of any tax exempt interest income received, (ii) amounts
contributed to an 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;
(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
<PAGE>
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.
Exhibit 59
August 3, 1995
Windcrest Partners
122 East 42nd Street
New York, New York 10168
Dear Sir:
Reference is made to the Term Loan Agreement, dated October 30, 1992,
between Windcrest Partners ("Windcrest") and Premier Parks Inc., formerly
The Tierco Group, Inc. ("Premier"), pursuant to which Premier issued to
Windcrest the New Note (as defined therein) in a principal amount of
$2,095,000.
Premier hereby offers you the opportunity to convert the principal
amount of such New Note into shares of Premier Common Stock, par value $.01
per share ("Common Stock") at a conversion price of $1.35 per share. Upon
such conversion, Premier will issue to Windcrest 1,551,852 shares of Common
Stock. The conversion will be conditioned upon the consummation of the
Transactions (as such term is defined in Premier's Preliminary Offering
Memorandum, July 21, 1995).
If the foregoing is acceptable to you, please indicate below.
Very truly yours,
PREMIER PARKS INC.
By:/s/ Kieran E. Burke
--------------------------------
Kieran E. Burke
Chairman of the Board
The undersigned hereby agrees to convert
the New Note as described above.
Windcrest Partners
By: /s/ Robert Gellert
--------------------------------------
Robert Gellert
General Partner
Exhibit 60
Amendment dated as of August 15, 1995 to Subscription Agreements dated
October 1992 (the "1992 Subscription Agreements") and October 1994 (the
"1994 Subscription Agreements") between Premier Parks Inc. (the "Company")
and the persons named on the signature page hereto (the "Holders").
The 1992 Subscription Agreements and the 1994 Subscription Agreements
(collectively, the "Subscription Agreements") provide the Holders certain
registration rights with respect to the Offered Shares (as defined in the
1992 Subscription Agreements) and the Placed Shares (as defined in the 1994
Subscription Agreements). Capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Subscription Agreements.
Section 6.7 of the Subscription Agreements provides that the
registration rights provisions thereof can be amended with the written
consent of a majority of the Placed Shares and the Offered Shares, as the
case may be.
NOW, THEREFORE, the parties intending to be legally bound, agree as
follows:
1. The definition of the term "Offered Shares" as used in the 1992
Subscription Agreements shall be amended to mean (i) 11,000,000 shares of
Common Stock issued in the Offering and (ii) 1,551,852 shares of Common
Stock issuable to Windcrest in connection with its conversion of the
Company's Junior Subordinated Note in the principal amount of $2,095,000
held by Windcrest.
2. Section 6.1(a) of the 1992 Subscription Agreements is hereby amended
in its entirety as provided as follows:
"Promptly follow a written request therefor received by the Company
after December 1996 (the "Registration Period") from the Holders of
a majority of the Offered Shares, the Company shall prepare and file
with the Securities and Exchange Commission (the "SEC") a
registration statement, including a prospectus, to register the
public resale of the Offered Shares by the holders thereof (the
"Holders") under the Act; provided that the Company shall not be so
--------
obliged to file any such registration statement at any time at which
it shall not be eligible to use Form S-3 (or any successor form) to
register the sale of the Offered Shares by such Holders. The
Company will use its best efforts to cause such registration
statement, when filed, to become effective under the Act and to
maintain a current prospectus which satisfies the requirements of
Section 10(a)(3) of the Act for the period ending two years after
the effective date of such registration statement or such shorter
period during which all Offered Shares have been sold pursuant to
such registration statement or pursuant to Rule 144 under the Act."
3. Section 6.2(b) of the 1992 Subscription Agreements and the 1994
Subscription Agreements are hereby amended in their entirety as provided as
follows:
<PAGE>
"(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 Offered Shares or
Placed Shares of any Holder who does not accept the terms of the
underwriting as agreed to by the Company (or, in the case of a
secondary registration, the securityholders initiating such
registration) and the underwriters selected by the Company or such
securityholders, and then only in such quantity as will not (in the
opinion of such underwriters) adversely affect the success of the
offering by the Company or such securityholders. If the total
amount of securities (including Offered Shares and 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:
A. If the registration is a primary registration on behalf of the
Company:
(i) first, all shares of Common Stock the Company proposes to
-----
sell; and
(ii) second, the number of Offered Shares and 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 underwriter, can be sold (allocated pro rata among the
Holders and the holders of such other shares of Common Stock on the basis
of the number of securities requested to be included therein by each such
Holder and holder).
B. If the registration is a secondary registration on behalf of
holders of Common Stock:
(i) first, all shares of Common Stock requested to be
-----
included in such registration by the securityholders initiating the
registration; and
---
(ii) second, the number of Offered Shares and Placed Shares
------
and such other shares of Common Stock requested to be included in such
registration in excess of the shares such initiating holders propose to
sell which, in the opinion of such underwriters, can be sold (allocated pro
rata among the Holders and the holders of such other shares of Common Stock
on the basis of the number of securities requested to be included therein
by each such Holder and holder)."
4. Except as amended hereby, the Subscription Agreements shall remain
in full force and effect.
-2-
<PAGE>
5. The Amendment may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which taken together
shall constitute one agreement.
PREMIER PARKS, INC.
---------------------------
Alan N. Locker
By: /s/ Kieran E. Burke Trustee F/B/O Judy Sue Locker
------------------------
Kieran E. Burke
LEPERCQ, DE NEUFLIZE & CO., Trust U/A Paul M. Pinto
DTD 1/8/85
INCORPORATED
By: /s/ James F. Dannhauser By:
------------------------ ------------------------
James F. Dannhauser
Trust U/A John J. Pinto
/s/ James F. Dannhauser DTD 1/8/85
---------------------------
James F. Dannhauser
By:
------------------------
WINDCREST PARTNERS
/s/ Herbert C. Lang
By: /s/ Robert J. Gellert ---------------------------
------------------------ Herbert C. Lang
Robert J. Gellert
General Partner
PINTO PARTNER L.P. /s/ Lewis Dickinson
---------------------------
Lewis Dickinson
By:
------------------------
Hanseatic Corporation
---------------------------
Alan N. Locker By: /s/ Paul A. Biddelman
------------------------
Paul A. Biddelman
By: /s/ Michael H. Lang
------------------------
Michael H. Lang
-3-
<PAGE>
Lawrence Tyrrell, Ortale & ---------------------------
Smith Charles Fabrikant
By: /s/ Jack Tyrell
------------------------ /s/ Michael E. Gellert
Jack Tyrell ---------------------------
Partner Michael E. Gellert by
Robert Gellert
attorney-in-fact
Lawrence Tyrrell, Ortale &
Smith II, LP
By: /s/ Jack Tyrell ---------------------------
------------------------ J. Larry Nichols
Jack Tyrell
Partner
/s/ J. David Grissom
--------------------------- ---------------------------
J. David Grissom David A. Jones
UEMCO X, L.L.C.
---------------------------
Joseph Stein, Jr.
By:
------------------------
Worldwide Special Portfolio,
N.V.
By:
--------------------------- ------------------------
Robert Gutenstein
/s/ Richard O. Loengard, Jr.
---------------------------
Richard O. Loengard, Jr.
---------------------------
Stephen Stamas
---------------------------
John H.T. Wilson
-4-
