UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) April 29, 2010
Six Flags Entertainment Corporation
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
1-13703 |
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13-3995059 |
(Commission File Number) |
|
(IRS Employer Identification No.) |
1540 Broadway, 15 th Floor |
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New York, New York |
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10036 |
(Address of Principal Executive Offices) |
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(Zip Code) |
(212) 652-9403
(Registrants Telephone Number, Including Area Code)
Six Flags, Inc.
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
General
As previously disclosed, on June 13, 2009, Six Flags, Inc. (Holdings), Six Flags Operations Inc. (SFO) and Six Flags Theme Parks Inc. (SFTP) and certain of SFTPs domestic subsidiaries (the SFTP Subsidiaries and, collectively with Holdings, SFO and SFTP, the Debtors) filed voluntary petitions for relief (the Chapter 11 Filing) under Chapter 11 in the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court) (Case No. 09-12019).
On April 1, 2010, the Debtors filed with the Bankruptcy Court their Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code (as the same has been or may be further modified, amended or supplemented, the Plan). On April 30, 2010, the Bankruptcy Court entered an Order Confirming Debtors Modified Fourth Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (the Confirmation Order), dated April 29, 2010, which approved and confirmed the Plan. A copy of the Confirmation Order is attached as Exhibit 99.1 to this Current Report on Form 8-K (this Current Report) and is incorporated herein by reference. A copy of the Plan, as confirmed by the Bankruptcy Court, is attached as Exhibit 2.1 to this Current Report and is incorporated herein by reference.
Pursuant to the Plan, on the Effective Date, but after the Plan became effective and prior to the distribution of securities under the Plan, Holdings filed with the Secretary of State of the State of Delaware a Restated Certificate of Incorporation (the Certificate of Incorporation) which, among other things, changed Holdings corporate name to Six Flags Entertainment Corporation. As used herein, Holdings or SFI means Six Flags, Inc. as a Debtor or prior to its name change to Six Flags Entertainment Corporation, and references to the Company or SFEC mean Six Flags Entertainment Corporation following the filing of the Certificate of Incorporation with the Secretary of State of the State of Delaware. Capitalized terms used but not otherwise defined herein have the meanings given to such terms in the Plan.
On April 30, 2010 (the Effective Date), the Debtors consummated their reorganization through a series of transactions contemplated by the Plan and the Plan became effective pursuant to its terms. On May 3, 2010, the Debtors filed a notice of the occurrence of the Effective Date with the Bankruptcy Court. In accordance with the Plan, the Debtors entered into the following material agreements:
Exit First Lien Credit Facility and Exit Second Lien Credit Facility
On the Effective Date, the Company, SFO and SFTP entered into a First Lien Credit Agreement (the First Lien Credit Agreement) with several lenders, Bank of America, N.A. and Barclays Capital, as co-syndication agents, Deutsche Bank Securities Inc. and Goldman Sachs Lending Partners LLC (Goldman Sachs), as co-documentation agents, and JPMorgan Chase Bank N.A., as administrative agent, and related loan and security documentation (the Exit First Lien Facility). The Exit First Lien Facility consists of an $890,000,000 senior secured credit facility comprised of a $120,000,000 revolving loan facility (the Exit Revolving Loan), which
may be increased to up to $150,000,000 in certain circumstances, and a $770,000,000 term loan facility (the Exit Facility First Lien Term Loan and, together with the Exit Revolving Loan, the Exit Facility First Lien Loans). Interest on the Exit First Lien Facility accrues at an annual rate equal to the London Interbank Offered Rate (LIBOR) + 4.25% in the case of the Exit Revolving Loan and LIBOR + 4.00% in the case of the Exit Facility First Lien Term Loan, with a 2.00% LIBOR floor and a 1.50% commitment fee on the average daily unused portion of the Exit Revolving Loan. The principal amount of the Exit Revolving Loan is due and payable on June 30, 2015. The First Lien Credit Agreement requires quarterly repayments of principal on the Exit Facility First Lien Term Loan beginning in March 2013 in an amount equal to 0.25% of the initial aggregate principal amount of the Exit Facility First Lien Term Loan and all remaining outstanding principal is due and payable on June 30, 2016.
On the Effective Date, the Company, SFO and SFTP entered into a Second Lien Credit Agreement (the Second Lien Credit Agreement and, together with the First Lien Credit Agreement, the Exit Facility Credit Agreements) with several lenders, and Goldman Sachs, as syndication agent, documentation agent and administrative agent, and related loan and security documentation (the Exit Second Lien Facility and together with the Exit First Lien Facility, the Exit Facilities). The Exit Second Lien Facility consists of a $250,000,000 senior secured term loan facility (the Exit Facility Second Lien Loan and, together with the Exit Facility First Lien Loans, the Exit Facility Loans). Interest on the Exit Facility Second Lien Loan accrues at an annual rate equal to LIBOR + 7.25% with a 2.00% LIBOR floor. The Second Lien Credit Agreement does not require any amortization of principal and the entire outstanding principal amount of the Exit Facility Second Lien Loan is due and payable on December 31, 2016.
Pursuant to the First Lien Guarantee and Collateral Agreement and the Second Lien Guarantee and Collateral Agreement, amounts outstanding on the Exit First Lien Facility and the Exit Second Lien Facility, respectively, are guaranteed by SFEC, SFO and each of the current and future direct and indirect domestic subsidiaries of SFTP; provided that to the extent SFTP acquires any non-wholly owned direct or indirect subsidiary after the Effective Date, such subsidiary will not be required to be a guarantor and/or pledgor of the Exit Facilities (together with SFTP, collectively, the Exit Financing Loan Parties). The Exit First Lien Facility is secured by first priority liens upon substantially all existing and after-acquired assets of the Exit Financing Loan Parties and the Exit Second Lien Facility is secured by second priority liens upon substantially all existing and after-acquired assets of the Exit Financing Loan Parties. The Exit Facility Credit Agreements contain certain representations, warranties and affirmative covenants, including minimum interest coverage and maximum senior leverage maintenance covenants and, with respect to the First Lien Credit Agreement, a maximum first lien leverage maintenance covenant. In addition, the Exit Facility Credit Agreements contain restrictive covenants that, subject to certain exceptions, limit or restrict, among other things, the ability of the Exit Financing Loan Parties to incur indebtedness, create liens, engage in mergers, consolidations and other fundamental changes, make investments or loans, engage in transactions with affiliates, pay dividends, make capital expenditures and repurchase capital stock. The Exit Facility Credit Agreements contain certain events of default, including payment, breaches of covenants and representations, cross defaults to other material indebtedness, judgment, changes of control and bankruptcy events of default.
The above summaries of the materials terms of each of the First Lien Credit Agreement, Second Lien Credit Agreement, First Lien Guarantee and Collateral Agreement and Second Lien Guarantee and Collateral Agreement do not purport to be complete and are qualified in their entirety by reference to the agreements, which will be attached as exhibits to the Companys Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2010, which the Company intends to file with the Securities and Exchange Commission on or about May 17, 2010.
Time Warner Loan Agreement
On the Effective Date, SFOG Acquisition A, Inc., SFOG Acquisition B, L.L.C., SFOT Acquisition I, Inc. and SFOT Acquisition II, Inc. (collectively, the Acquisition Parties) entered into the Multiple Draw Term Credit Agreement (the New TW Loan Agreement) with TW-SF, LLC (the New TW Lender). The New TW Loan Agreement provided the Acquisition Parties with a $150,000,000 multi-draw term loan facility (the New TW Loan). Interest on the New TW Loan accrues at a rate equal to (i) the greater of (a) LIBOR and (b) 2.50% (or to the extent that any LIBOR or similar rate floor under the Exit Facility First Lien Loans (or under any senior term credit facility that amends, restates, amends and restates, refinances, modifies or extends the Exit First Lien Term Loan) is higher than 2.50%, such higher floor) plus (ii) the then Applicable Margin under the Exit First Lien Term Loan (or, if higher) under any successor term facility plus (iii) 1.00%. In the event that any of the loan parties issue corporate bonds or other public debt, and the then applicable credit default swap spread is higher than the Applicable Margin referenced in the foregoing sentence, such Applicable Margin will be increased based on the applicable default swap spread then in effect, subject to a fixed cap. Funding during the availability period under the New TW Loan will occur only on May 14th (or the immediately preceding business day) of each fiscal year (each a Funding Date) in which amounts required to satisfy the put obligations exceeds (a) for the fiscal year ending December 31, 2010, $10,000,000, (b) for the fiscal year ending December 31, 2011, $12,500,000 and (c) for each subsequent fiscal year, $15,000,000. The principal amount of the New TW Loan borrowed on each Funding Date will be due and payable five years from such Funding Date. The New TW Loan Agreement requires prepayments with any cash of the Acquisition Parties (other than up to $50,000 per year) including the proceeds received by the Acquisition Parties from the limited partnership interests in the Partnership Parks and is prepayable at any time at the option of the Acquisition Parties. The New TW Loan is unconditionally guaranteed on a joint and several and senior unsecured basis by SFEC, SFO, SFTP and each of the current direct and indirect domestic subsidiaries of SFEC who are or in the future become guarantors under the Exit Facilities (collectively, the New TW Guarantors) under the terms of the Guarantee Agreement (the New TW Guarantee Agreement) entered into by the New TW Guarantors in favor of the New TW Lender on the Effective Date. The New TW Loan Agreement and New TW Guarantee Agreement contain representations, warranties, covenants and events of default on substantially similar terms as those contained in the First Lien Credit Agreement. No borrowing will occur on May 14, 2010 under the New TW Loan with respect to the 2010 put obligations.
On the Effective Date, in connection with the New TW Loan Agreement, SFEC, SFO, STFP, SFOG II, Inc., SFT Holdings, Inc., Historic TW, Inc., Warner Bros. Entertainment Inc., TW-SPV Co., certain other subsidiaries of SFEC and GP Holdings, Inc. entered into Amendment
No. 7 to the Subordinated Indemnity Agreement (Amendment No. 7), pursuant to which, among other things, the parties thereto ratified and confirmed their obligations under that certain subordinated indemnity agreement dated as of April 1, 1998, as amended.
The above summaries of the materials terms of each of the New TW Loan Agreement, New TW Guarantee Agreement and Amendment No. 7 do not purport to be complete and are qualified in their entirety by reference to the agreements, which will be attached as exhibits to the Companys Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2010, which the Company intends to file with the Securities and Exchange Commission on or about May 17, 2010.
Registration Rights Agreement
Pursuant to the Plan, on the Effective Date, SFEC entered into a registration rights agreement (the Registration Rights Agreement) with each stockholder who, as of the Effective Date, held (together with its affiliates) at least 1% of the Common Stock. Pursuant to the Registration Rights Agreement, SFEC agreed to register the resale of the shares of Common Stock issued to such holders in accordance with the requirements of the Securities Act (including, within 30 days following the Effective Date, pursuant to a resale shelf registration statement pursuant to Rule 415 promulgated under the Securities Act). The Registration Rights Agreement provides that, at any time from and after the Effective Date, holders party thereto collectively owning at least 20% of the then outstanding shares of Common Stock have the right to require SFEC to effect certain underwritten registered offerings of such holders Common Stock, including Common Stock acquired pursuant to the Plan or the Offering, on the terms and conditions set forth in the Registration Rights Agreement. Holders of the Common Stock entitled to demand such registrations are entitled to request an aggregate of five (5) underwritten offerings (which, individually, must include an amount of Common Stock to be registered and/or sold by such holders in excess of $100 million). In addition, holders party to the Registration Rights Agreement have unlimited piggyback registration rights.
The above summary of the materials terms of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the text of the Registration Rights Agreement, a copy of which is included as Exhibit 4.1 to this Current Report and is incorporated by reference herein.
Long-Term Incentive Plan
Pursuant to the Plan, on the Effective Date, the Six Flags Entertainment Corporation Long-Term Incentive Plan became effective (the Long-Term Incentive Plan). The Long-Term Incentive Plan permits SFEC to grant stock options, stock appreciation rights, restricted stock, restricted stock units, unrestricted stock, deferred stock units, performance and cash-settled awards and dividend equivalents (collectively, Awards) to select employees, officers, directors and consultants of SFEC and its affiliates (collectively, Eligible Persons). The Long-Term Incentive Plan provides that no more than 4,833,333 shares of Common Stock may be issued pursuant to Awards under the Long-Term Incentive Plan as of the Effective Date, and if and to the extent the Delayed Draw Equity Purchase is consummated, up to 149,956 additional shares
of Common Stock shall be available for issuance under the Long-Term Incentive Plan. At least one-third of the total shares available for issuance under the Long-Term Incentive Plan shall be available for grants of restricted stock or restricted stock units.
Any stock options or stock appreciation rights granted under the Long-Term Incentive Plan must have an exercise price at least equal to 100% of the fair market value of the underlying shares of Common Stock on the grant date.
Either the Postconfirmation Board or the compensation committee appointed by the Postconfirmation Board will administer the Long-Term Incentive Plan (the Administrator). Subject to the terms of the Long-Term Incentive Plan, the Administrator has express authority to determine the Eligible Persons who will receive Awards, the number of shares of Common Stock, units or dollars to be covered by each Award, and the terms and conditions of Awards. The Administrator has broad discretion to prescribe, amend, and rescind rules relating to the Long-Term Incentive Plan and its administration, to interpret and construe the Long-Term Incentive Plan and the terms of all Award agreements, and to take all actions necessary or advisable to administer the Long-Term Incentive Plan. Within the limits of the Long-Term Incentive Plan, the Administrator may accelerate the vesting of any Award, allow the exercise of unvested Awards, and may modify, replace, cancel or extend or renew them.
The Administrator shall equitably adjust the number of shares covered by each outstanding Award, and the number of shares that have been authorized for issuance under the Long-Term Incentive Plan but as to which no Awards have yet been granted or that have been returned to the Long-Term Incentive Plan upon cancellation, forfeiture or expiration of an Award, as well as the price per share covered by each such outstanding Award, to reflect any increase or decrease in the number of issued shares resulting from a stock split, reverse stock split, stock dividend, combination, recapitalization or reclassification of the shares, merger, consolidation, change in form of organization or any other increase or decrease in the number of issued shares effected without receipt of consideration by SFEC. In the event of any such transaction or event, the Administrator may (and shall if SFEC is not the surviving entity or the shares are otherwise no longer outstanding) provide in substitution for any or all outstanding Awards under the Long-Term Incentive Plan such alternative consideration (including securities of any surviving entity) as it may in good faith determine to be equitable under the circumstances and may require in connection therewith the surrender of all Awards so replaced.
In addition, in the event of a Change in Control (as defined in the Long-Term Incentive Plan), but subject to the terms of any Award agreements or employment-related agreements between SFEC or any of its affiliates and any participant, each outstanding Award shall be assumed or a substantially equivalent award shall be substituted by the surviving or successor company or a parent or subsidiary of such successor company upon consummation of the transaction. However, the Administrator may (and where so stated in the Long-Term Incentive Plan shall) at any time in its sole and absolute discretion and authority, without obtaining the approval or consent of SFECs stockholders or any participant with respect to his or her outstanding Awards, take one or more of the following actions: (a) arrange for or otherwise provide that each outstanding Award will be assumed or substituted with a substantially equivalent award by a successor company or a parent or subsidiary of such successor company
(Successor Company); (b) (A) to the extent required pursuant to the terms of an employment agreement between SFEC and a participant that was in effect on or as of the Effective Date, or (B) if an Award is not assumed or substituted by the Successor Company or the stock or securities to be subject to any Award that would be so assumed or substituted is not publicly traded on an established securities market, the Administrator may (and shall with respect to Awards granted pursuant to any employment agreement filed in connection with the Long-Term Incentive Plan) accelerate the vesting of Awards so that Awards shall fully vest (and, to the extent applicable, become fully exercisable) immediately prior to the consummation of the Change in Control as to the shares of Common Stock that otherwise would have been unvested and provide that repurchase rights of SFEC with respect to shares of Common Stock issued upon exercise of an Award shall lapse as to the shares of Common Stock subject to such repurchase right; (c) arrange or otherwise provide for payment of cash or other consideration to participants in exchange for the satisfaction and cancellation of outstanding vested Awards, and, if the consideration payable to SFEC or its stockholders in connection with the Change in Control is all cash, vested options and stock appreciation rights that have an exercise price greater than the then-current fair market value of the Common Stock may be cancelled for zero consideration; (d) terminate all or some of the unvested Awards upon the consummation of the transaction; or (e) make such other modifications, adjustments or amendments to outstanding Awards or Long-Term Incentive Plan as the Administrator deems necessary or appropriate.
The Postconfirmation Board may from time to time, amend, alter, suspend, discontinue or terminate the Long-Term Incentive Plan; provided that Long-Term Incentive Plan amendments shall be subject to approval of the holders of Common Stock to the extent the Postconfirmation Board determines such approval is required by applicable laws. In addition, no amendment or termination of the Long-Term Incentive Plan may materially and adversely affect a participants rights under an Award already granted unless the participant consents in writing such termination or amendment or, in the case of an amendment, the amendment is required by applicable laws.
The above summary of the materials terms of the Long-Term Incentive Plan does not purport to be complete and is qualified in its entirety by reference to the text of the Long-Term Incentive Plan, a copy of which is included as Exhibit 10.1 to this Current Report and is incorporated by reference herein.
Amendments to Employment Agreements
On the Effective Date and pursuant to the Plan, the Company entered into (i) an Amended and Restated Employment Agreement among the Company, SFO, SFTP and Mark Shapiro, dated as of April 1, 2010 (the Shapiro Employment Agreement); (ii) an Amendment to the Employment Agreement among the Company, SFO, SFTP and Jeff Speed, dated as of April 1, 2010; (iii) an Amendment to the Employment Agreement among the Company, SFO, SFTP and Louis Koskovolis, dated as of April 1, 2010; (iv) an Amendment to the Employment Agreement among the Company, SFO, SFTP and Mark Quenzel, dated as of April 1, 2010; and (v) an Amendment to the Employment Agreement among the Company, SFO, SFTP and Andrew Schleimer, dated as of April 1, 2010 ((ii)-(v) collectively, the Employment Agreement Amendments).
The Shapiro Employment Agreement continues to provide for Mr. Shapiros employment with the Company in his current position as President and Chief Executive Officer during the four year period that commenced on April 1, 2009 and expires on April 1, 2013, unless sooner terminated by either party. Mr. Shapiros annual base salary remains $1,300,000 and his annual target bonus amount remains $1,300,000. The maximum annual bonus Mr. Shapiro may receive for any fiscal year under the following performance parameters is $2.6 million. Mr. Shapiros bonus will be determined based upon the level of achievement of the following performance parameters: 50% will be based on the attainment of the Budgeted Adjusted EBITDA target, and 50% will be based on the attainment of the Budgeted Free Cash Flow, Budgeted Attendance, Budgeted In-Park Net Revenue Per Capita and Budgeted Sponsorship/Licensing Revenue targets (12.5% each). No bonus is payable if 90% of the Adjusted EBITDA target is not obtained. In addition, upon the occurrence of a Triggering Event (which includes the Companys emergence from bankruptcy), Mr. Shapiro will be entitled to a success bonus of $3,000,000 payable in a lump sum cash payment within ten business days, except that $1,000,000 of Mr. Shapiros success bonus will become payable on the first anniversary of the Triggering Event (subject to his continued employment through such date) or, earlier, upon the termination of Mr. Shapiros employment without cause, for good reason, without good reason in connection with a change in control or significant change in board composition, or due to death or disability (as such term is defined in the Shapiro Employment Agreement). In addition, the Company shall issue to Mr. Shapiro under the Long-Term Incentive Plan restricted shares and options to purchase shares of the Companys common stock in an amount and with such vesting and other terms as mutually agreed to by Mr. Shapiro and the board of directors.
Severance will become payable under the Shapiro Employment Agreement upon termination of Mr. Shapiros employment without cause or for good reason during the contract term. Mr. Shapiro would be entitled to receive, in addition to a pro-rated target bonus, a lump sum cash amount equal to three times the sum of his base salary and his target bonus. In addition, Mr. Shapiro will receive 36 months of continued health and life insurance coverage and all outstanding stock options and restricted stock then held by Mr. Shapiro will become fully vested (with stock options generally remaining exercisable for the balance of their terms).
If Mr. Shapiro terminates his employment without good reason during the 90-day period following a change in control, in addition to a pro-rated target bonus, Mr. Shapiro will be entitled to the severance payments and benefits that he would receive upon a termination without cause (as specified above). In addition, upon a change in control all of Mr. Shapiros outstanding stock options and restricted stock fully vest (with continued exercisability of such stock options for the balance of their terms, subject to certain limits).
Upon expiration of the contract term, Mr. Shapiro will be entitled to receive an amount equal to (i) 18 months base salary, plus (ii) his annual bonus for the prior fiscal year, and all of Mr. Shapiros outstanding stock options and restricted stock will fully vest (with continued exercisability of such stock options for the balance of their terms, subject to certain limits).
The Employment Agreement Amendments provide that (i) following a Triggering Event (as such term is defined in the employment agreements), the Company shall issue to each executive under the Long-Term Incentive Plan restricted shares and options to purchase shares of
the Companys common stock in an amount and with such vesting and other terms as mutually agreed to by the chief executive officer and the board of directors; and (ii) the transactions contemplated by Plan shall not be deemed to constitute Good Reason (as such term is defined in the employment agreements) for purposes of the employment agreements among the Company, SFO, SFTP and each of Messrs. Speed, Koskovolis, Quenzel and Schleimer. Moreover, the Employment Agreement Amendments also amended the annual bonus parameters for each of Messrs. Speed, Quenzel and Schleimer. Pursuant to the Employment Agreement Amendments, bonuses will be determined based upon the level of achievement of the following performance parameters for each of Messrs. Speed, Quenzel and Schleimer: 50% of each executives bonus will be based on the attainment of the Budgeted Adjusted EBITDA target, and 50% of each executives bonus will be based on the attainment of the Budgeted Free Cash Flow, Budgeted Attendance, Budgeted In-Park Net Revenue Per Capita and Budgeted Sponsorship/Licensing Revenue targets (12.5% each). No bonuses are payable if 90% of the Adjusted EBITDA target is not obtained.
The above summary of the materials terms of the Shapiro Employment Agreement, a copy of which is included as Exhibit 10.2 to this Current Report and is incorporated by reference herein, and the Employment Agreement Amendments, which are included as Exhibits 10.3, 10.4, 10.5 and 10.6 and are incorporated by reference herein, do not purport to be complete and are qualified in their entirety by reference to their text.
Item 1.02 Termination of a Material Definitive Agreement
Debt Securities
On the Effective Date, by operation of the Plan, all outstanding obligations under the following notes issued by SFI and SFO (collectively, the Prepetition Notes) were cancelled and the indentures governing such obligations were cancelled, except to the extent to allow the Debtors, Reorganized Debtors or the relevant Prepetition Notes indenture trustee, as applicable, to make distributions pursuant to the Plan on account of claims related to such Prepetition Notes :
· SFIs 8-7/8% Senior Notes due 2010 (the 2010 Notes), which were issued pursuant to the Indenture, dated as of February 11, 2002, between the Company and The Bank of New York (BONY), as trustee, (the 2010 Indenture);
· SFIs 9-3/4% Senior Notes due 2013 (the 2013 Notes), which were issued pursuant to the Indenture, dated as of April 16, 2003, between the Company and BONY, as trustee, (the 2013 Indenture);
· SFIs 9-5/8% Senior Notes due 2014 (the 2014 Notes), which were issued pursuant to the Indenture, dated as of December 5, 2003, between the Company and BONY, as trustee, (the 2014 Indenture);
· SFIs 4.50% Convertible Senior Notes due 2015 (the 2015 Notes), which were issued pursuant to the Indenture, dated as of June 30, 1999, between the Company and BONY, as trustee, and the Second Supplemental Indenture, dated as of November 19, 2004, between the Company and BONY, as trustee, (the 2015 Indenture); and
· SFOs 12-1/4% Notes due 2016 (the 2016 Notes), which were issued pursuant to the Indenture, dated as of June 16, 2008, among SFO, as issuer, the Company, as parent guarantor, and HSBC Bank USA, National Association, as trustee, (the 2016 Indenture).
Credit Agreement
On the Effective Date, pursuant to the Plan and the Confirmation Order, the Second Amended and Restated Credit Agreement, dated as of May 25, 2007 (as amended, modified or otherwise supplemented from time to time, the Credit Agreement), among Holdings, SFO, SFTP (as the primary borrower), certain of SFTPs foreign subsidiaries party thereto, the lenders thereto, the agent banks party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity, the Administrative Agent), was cancelled (except that the Credit Agreement continues in effect solely for the purposes of allowing creditors under the Credit Agreement to receive distributions under the Plan and allowing the Administrative Agent to exercise certain rights).
Time Warner Promissory Note
On the Effective Date, the Acquisition Parties repaid in full all amounts outstanding under that certain Promissory Note, dated May 15, 2009, by and among the Acquisition Parties and TW-SF LLC, pursuant to which TW-SF LLC, which as of the Effective Date was $32,561,779.
Equity Interests
Upon the Effective Date, by operation of the Plan, all of Holdings common stock, preferred stock purchase rights, preferred income equity redeemable shares (PIERS) and any other ownership interest in SFI, whether or not transferable, and all options, warrants or rights, contractual or otherwise (including, but not limited to, stockholders agreements, registration rights agreements, rights agreements, repurchase agreements and arrangements, or other similar instruments or documents), (collectively, the SFI Preconfirmation Equity Interests) were cancelled as of the Effective Date. Included in the SFI Preconfirmation Equity Interests were (i) SFIs 2001 Stock Option and Incentive Plan, which was filed as Exhibit 4(dd) to SFIs Form 10-K for the year ended December 31, 2002; (ii) the Stock Option Plan for Directors, which was filed as Exhibit 4(ee) to SFIs Form 10-K for the year ended December 31, 2002; (iii) SFIs 2004 Stock Option and Incentive Plan, which was filed as Exhibit 10.1 to SFIs Registration Statement on Form S-8 (Reg. No. 333-131831), filed on February 14, 2006; (iv) 2006 Stock Option and Incentive Plan, which was filed as Exhibit 10.1 to SFIs Current Report on Form 8-K, filed on May 30, 2006; (v) SFIs 2006 Employee Stock Purchase Plan, which was filed as Exhibit 10.2 to SFIs Current Report on Form 8-K, filed on May 30, 2006; (vi) the Six Flags, Inc. 2007 Stock Option and Incentive Plan, which was filed as Exhibit 10.1 to SFIs Current Report on Form 8-K filed on May 24, 2007; (vii) the Six Flags, Inc. 2008 Stock Option and Incentive Plan, which was filed as Exhibit 10.1 to SFIs Current Report on Form 8-K, filed on May 28, 2008; and (viii) all outstanding awards and grants thereunder. Former stockholders of SFI and holders of other SFI Preconfirmation Equity Interests will receive no distributions or other consideration under the Plan.
Item 1.03 Bankruptcy or Receivership
As discussed above, on April 30, 2010, the Bankruptcy Court entered the Confirmation Order confirming the Plan, which order was dated April 29, 2010. The information in Items 1.01 and 5.03 of this Current Report are incorporated by reference into this Item 1.03.
The following is a summary of the material terms of the Plan. This summary highlights only certain substantive provisions of the Plan and is not a complete description of the Plan. This summary is qualified in its entirety by reference to the full text of the Plan.
General
The Plan includes (i) the Exit Facilities of $1.140 billion; (ii) the assignment to SFI of 2016 Notes held by certain holders of Prepetition Notes (the SFO Equity Conversion) in an aggregate amount of $69.5 million in exchange for a number of shares of common stock of SFI, representing 8.625% of the equity of SFI on the Effective Date (the Common Stock) in full satisfaction of their claims arising under such assigned 2016 Notes; (iii) a $505.5 million rights offering (the Offering), which represents 62.733% of the Common Stock, to the holders of certain unsecured claims (Allowed Unsecured Claims) specified in the Plan, that are Accredited Investors, as defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (Eligible Holders); provided, however, that if the net proceeds from the Offering are less than $505.5 million, the parties who have agreed to backstop the Offering (the Backstop Purchasers) pursuant to the terms and conditions set forth in the commitment agreement executed by the Debtors and the Backstop Purchasers (the Equity Commitment Agreement), will subscribe for any amount of Common Stock offered but not purchased pursuant to the Offering; (iv) an offering (the Direct Equity Purchase) to the Backstop Purchasers for an aggregate purchase price of $75.0 million (the Direct Purchase Amount) of a number of shares of Common Stock, representing 12.410% of the Common Stock; and (v) an offering (the Additional Equity Purchase) to certain Backstop Purchasers for an aggregate purchase price of $50 million (the Additional Purchase Amount), on the same pricing terms as the Offering, a number of shares of Common Stock, representing 6.205% of the Common Stock. In addition, the Plan also contemplates the New TW Loan.
Pursuant to the Confirmation Order, the Plan also contemplates that the Company shall send to each SFI Noteholder who did not return an accredited investor questionnaire in accordance with the Offering Procedures on or before April 21, 2010 (excluding any SFI Noteholder who was deemed to return such questionnaire on or before April 21, 2010 pursuant to Section 2.11 of the Offering Procedures) (each, an Unconfirmed Holder) (i) a questionnaire seeking certification that such Unconfirmed Holder is not an Accredited Investor (the Non-Accredited Investor Questionnaire) and (ii) a notice setting forth the rights of the Unaccredited SFI Noteholders. Each Unconfirmed Holder who returns a completed Non-Accredited Investor Questionnaire, subject to certain conditions, shall be considered an Unaccredited SFI Noteholder and shall have the right to receive such Unaccredited SFI Noteholders Unaccredited Pro Rata Share (as defined below) of the Offering Net Value (as defined below); provided, however, that if the aggregate amount of the Offering Net Value to be distributed to the Unaccredited SFI Noteholders would exceed $2.94 million (the Offering Net Value Cash Cap), then the aggregate amount to be distributed to the Unaccredited SFI Noteholders shall be
limited to the Offering Net Value Cash Cap, which shall be distributed to the Unaccredited SFI Noteholders based on each holders Unaccredited Pro Rata Share. As used herein, the Offering Net Value means $29.4 million and the Unaccredited Pro Rata Share is a fraction, the numerator of which shall be the face value of the SFI Notes held by an Unaccredited SFI Noteholder and the denominator of which shall be $868.3 million.
Summary of Classification and Treatment of Claims and Preconfirmation Equity Interests
Pursuant to the Plan, the Preconfirmation SFTP Equity Interests are unimpaired by the Plan, and each holder of a Preconfirmation SFTP Equity Interest is conclusively presumed to accept the Plan and is not entitled to vote to accept or reject the Plan. On the Effective Date, Preconfirmation SFTP Equity Interests shall be reinstated and rendered unimpaired in accordance with the Bankruptcy Code.
Under the Plan, recoveries to the holders of SFTP Prepetition Credit Agreement Claims and holders of SFO Unsecured Claims are 100%. Recoveries to the holders of SFI Unsecured Claims (excluding any value attributable to the Offering) based upon the implied transaction value of $1.865 billion is 8.2% (based upon a 9.5% allocation of the Common Stock under the Plan). Holders of SFI Preconfirmation Equity Interests will receive no distributions or other consideration under the Plan.
The classification and treatment of all Claims against the Debtors is more fully described in Article III of the Plan.
Assets and Liabilities
Information as to the assets and liabilities of Six Flags, Inc. as of the most recent practicable date is contained in the consolidated financial statements filed with SFIs Annual Report on Form 10-K for the year ended December 31, 2009, filed on March 5, 2010, and incorporated by reference herein.
Item 3.02 Unregistered Sales of Equity Securities
Pursuant to the Plan, on the Effective Date, the Company issued an aggregate of 27,388,889 shares of Common Stock. The Company has reserved approximately 5,000,000 shares of Common Stock for issuance pursuant to the Long-Term Incentive Plan in accordance with the Plan. The Company has also reserved 500,000 shares of Common Stock in the event the board of directors determines to pay up to 50% of the annual director fees payable to non-employee members of the board of directors in shares of New Common Stock.
Consistent with the Confirmation Order and applicable law, the Company relied on Section 1145(a)(1) of the Bankruptcy Code to exempt from the registration requirements of the Securities Act of 1933, as amended (the Securities Act), the issuance of 2,601,944 shares of Common Stock, which represents 9.5% of the Common Stock, to the holders of SFI Unsecured Claims. Section 1145 (a)(1) of the Bankruptcy Code exempts the offer and sale of securities under a plan of reorganization from registration under Section 5 of the Securities Act and state laws if three principal requirements are satisfied:
· the securities must be issued under a plan of reorganization by the debtor, its successor under a plan or an affiliate participating in a joint plan of reorganization with the debtor;
· the recipients of the securities must hold a claim against, an interest in, or a claim for administrative expense in the case concerning the debtor or such affiliate; and
· the securities must be issued either (i) in exchange for the recipients claim against, interest in or claim for administrative expense in the case concerning the debtor or such affiliate or (ii) principally in such exchange and partly for cash or property.
On the Effective Date and pursuant to the Plan, the Company relied on upon the exemption from registration pursuant to Section 4(2) of the Securities Act, and Rule 506 promulgated thereunder, to effect the following sales and issuance of Common Stock:
· The SFO Equity Conversion resulted in certain holders of the 2016 Notes in the aggregate amount of $69.5 million exchanging such 2016 Notes for 2,362,309 shares of Common Stock, which represents 8.625% of the Common Stock;
· Eligible Holders that subscribed for Common Stock in the Offering purchased 17,181,975 shares of Common Stock, which represents 62.733% of the Common Stock;
· The Direct Equity Purchase by the Backstop Purchasers for the Direct Purchase Amount resulted in the sale and issuance of 3,399,006 shares of Common Stock, which represents 12.410% of the Common Stock;
· The Additional Equity Purchase by certain Backstop Purchasers for the Additional Purchase Amount resulted in the sale and issuance of 1,699,503 shares of Common Stock, which represents 6.205% of the Common Stock; and
· 144,152 shares of Common Stock, which represents 0.526% of the Common Stock, were issued to the Delayed Draw Equity Purchasers as consideration for their commitment to purchase an additional $25.0 million of Common Stock on or before June 1, 2011, following approval by a majority of the members of the Companys board of directors (the Delayed Draw Equity Purchase).
Item 3.03 Material Modification to Rights of Security Holders
The information regarding the cancellation of the debt securities and equity interests of SFI set forth in Item 1.02 of this Current Report is incorporated by reference in this Item 3.03.
The information regarding the amendments to the Companys Certificate of Incorporation and the Amended and Restated Bylaws (the Bylaws) set forth in Item 5.03 of this Current Report is incorporated by reference in this Item 3.03.
Item 5.01 Changes in Control of Registrant
Upon the Effective Date, by operation of the Plan and as discussed under Equity Interests in Item 1.02 of this Current Report, all of SFIs common stock, PIERS and other equity interests were cancelled and, as described in Item 3.02 of this Current Report, all of the Companys issued and outstanding Common Stock as of the Effective Date was issued to holders of SFI Unsecured Claims, certain holders of the 2016 Notes in the SFO Equity Conversion, Eligible Holders that participated in the Offering, and the Backstop Purchasers that participated in the Direct Equity Purchase and the Additional Equity Purchase, and as consideration to the Delayed Draw Equity Purchasers for their commitment to the Delayed Draw Equity Purchase in accordance with the Plan. In addition, as discussed in Item 5.02 of this Current Report, the composition of the board of directors as of the Effective Date is substantially different than the composition of the board of directors immediately prior to the Effective Date.
Item 5.02 Departure of Directors or Certain Officers, Election of Directors, Appointment of Certain Officers, Compensatory Arrangements of Certain Officers
Departure and Appointment of Directors
Pursuant to the Plan, as of the Effective Date the following directors ceased to serve on the Companys board of directors: Charles Elliott Andrews, Robert J. McGuire, Perry Rogers, Dwight C. Schar, Daniel M. Snyder and Harvey Weinstein.
Pursuant to the Plan, as of the Effective Date the number of directors of the Company was fixed at nine, with Charles Koppelman, Usman Nabi, Daniel Murphy, John Baker, Jon Luther, Kurt Cellar and Steve Owens becoming members of the Companys board of directors. Existing directors Mark Shapiro, the Companys President and Chief Executive Officer, and Mark Jennings remain on the Companys board of directors.
The directors were chosen in accordance with the terms of the Plan. Under the terms of the Plan, the initial board of the Company upon the Effective Date shall consist of (i) the Chief Executive Officer of the Company, Mr. Shapiro, (ii) six (6) directors chosen by Majority Backstop Purchasers, (iii) one (1) director selected by the Creditors Committee, and (iv) one director chosen by Mr. Shapiro.
Committees of the Board of Directors
The committees of the Companys board of directors consist of an audit committee, a compensation committee and a nominating and corporate governance committee. It is expected that the membership of each committee will be determined by the board of directors at its first meeting, which is scheduled to be held on or about May 11, 2010.
Compensation of Directors
The Company will establish a director compensation program comparable to that of companies of similar size and complexity. The specific provisions of the director compensation program have not yet been finalized. The compensation committee will recommend a director compensation program to the board of directors, which will set the compensation based on that recommendation. The board of directors may determine to pay up to 50% of the annual director fees payable to non-employee members of the board of directors in shares of New Common Stock.
Indemnification of Directors
The Company expects to enter into individual indemnification agreements with each member of the Companys board of directors. The indemnification agreements are intended to assure that the Companys directors are indemnified to the fullest extent permitted under applicable law.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
In connection with the Plan and the Companys emergence from Chapter 11, the Company (i) adopted the Certificate of Incorporation and the Bylaws, effective as of the Effective Date; and (ii) changed the Companys corporate name to Six Flags Entertainment Corporation. The following sets forth a summary of the material provisions of the Certificate of Incorporation and the Bylaws, and does not purport to be complete and is qualified in its entirety by reference to the text of the Certificate of Incorporation and the Bylaws, copies of which are included as Exhibits 3.1 and 3.2, respectively, to this Current Report and are incorporated by reference herein.
Authorized Capital Stock. The total number of shares of all classes of stock that the Company is authorized to issue is 65,000,000 shares, consisting of 5,000,000 shares of Preferred Stock, par value $1.00 per share (the Preferred Stock), and 60,000,000 shares of Common Stock, par value $0.025 per share. To the extent prohibited by Section 1123(a)(6) of the Bankruptcy Code, the Company will not issue non-voting equity securities; provided, however the foregoing restriction will (a) have no further force and effect beyond that required under Section 1123 of the Bankruptcy Code, (b) only have such force and effect for so long as Section 1123 of the Bankruptcy Code is in effect and applicable to the Company and (c) in all events may be amended or eliminated in accordance with applicable law as from time to time may be in effect. The number of authorized shares of either of the Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Company entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the General Corporation Law of the State of Delaware (DGCL) (or any successor provision thereto), and no vote of the holders of either of the Common Stock or Preferred Stock voting separately as a class shall be required therefor.
Dividends and Distributions. Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock or any class or series of stock having a preference over or the right to participate with the Common Stock with respect to the payment of dividends and other distributions in cash, stock of any corporation or property of the Company, such dividends and other distributions may be declared and paid on the Common Stock out of the assets of the Company that are by law available therefor at such times and in such amounts as the board of directors in its discretion shall determine .
Liquidation Rights . In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company, after payment or provision for payment of the debts and other liabilities of the Company and of the preferential and other amounts, if any, to which the holders of Preferred Stock shall be entitled, the holders of all outstanding shares of Common Stock shall be entitled to receive the remaining assets of the Company available for distribution ratably in proportion to the number of shares of Common Stock held by each such stockholder.
Voting; Proxies. All shares of Common Stock have identical rights and privileges. With limited exceptions, holders of Common Stock shall have the exclusive right to vote and are entitled to one vote for each outstanding share of Common Stock held of record by each stockholder on all matters, including the electing of directors, properly submitted for the vote of the Companys stockholders. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the Certificate of Incorporation, the Bylaws, the rules or regulations of any stock exchange applicable to the Company, or applicable law or pursuant to any regulation applicable to the Company or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the Company which are present in person or represented by proxy at the meeting and entitled to vote thereon. Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. Every proxy must be authorized in a manner permitted by Section 212 of the DGCL or any successor provision. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by delivering to the secretary of the Company a revocation of the proxy or a new later dated proxy.
Adoption, Alteration or Repeal of Bylaws. The board of directors is expressly authorized to make, alter and repeal the Bylaws of the Company. Any adoption, alteration or repeal of a Bylaw must be approved either by (a) the affirmative vote of a majority of the Whole Board (as defined below) or the unanimous written consent of all members of the board of directors, or (b) the affirmative vote of the holders of at least seventy-five percent (75%) of the voting power of the outstanding shares entitled to vote generally in the election of directors, voting as a single class. Whole Board means the total number of directors the Company would have if there were no vacancies.
Number of Directors . The Bylaws provide that the number of directors shall initially be fixed at nine (9) and shall thereafter be fixed from time to time by resolution of the board of directors.
Removal of Directors . Except for such additional directors, if any, as are elected by the holders of any series of Preferred Stock as provided for in a Preferred Stock Designation, until April 30, 2011, any director, or the entire board of directors, may be removed from office at any time, with or without cause, only by the affirmative vote of at least 80% of the total voting power of the outstanding shares entitled to vote generally in the election of directors, voting together as a single class. From and after April 30, 2011, except for such additional directors, if any, as are elected by the holders of any series of Preferred Stock as provided for in a Preferred Stock Designation, any director, or the entire board of directors, may be removed from office at any time, with or without cause, only by the affirmative vote of at least a majority of the total voting power of the outstanding shares entitled to vote generally in the election of directors, voting together as a single class.
Newly Created Directorships and Vacancies on the Board of Directors . S ubject to the rights, if any, of the holders of any series of Preferred Stock to elect additional directors under circumstances specified in a Preferred Stock Designation, newly created directorships resulting from any increase in the number of directors and any vacancies on the board of directors resulting from death, resignation, disqualification, removal, or other cause shall be filled by a majority vote of the directors then in office, even if the number of such directors then in office is less than a quorum, or by a sole remaining director, if applicable. Any director elected in accordance with the preceding sentence shall hold office until the expiration of the term of office of the director whom such director has replaced or until such directors successor has been elected and qualified. No decrease in the number of directors constituting the board of directors may shorten the term of any incumbent director.
Amendment of the Certificate of Incorporation. The Company reserves the right at any time and from time to time to amend or repeal any provision contained in the Certificate of Incorporation (including any Preferred Stock Designation), or to add any new provision to the Certificate of Incorporation in the manner now or hereafter prescribed by the Certificate of Incorporation and the DGCL; and, except as set forth in Article VIII, Article IX and Article X of the Certificate of Incorporation, all rights, preferences and privileges conferred upon stockholders, directors or any other persons by and pursuant to the Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in Article XII of the Certificate of Incorporation; provided, however, that in addition to any other vote of stockholders (if any) required by law and notwithstanding that a lower vote (or no vote) of stockholders would otherwise be required, if any provision of the Certificate of Incorporation other than Article XII requires a particular vote of stockholders in order to take the action specified in such provision, then such vote of stockholders shall be required in order to alter, amend or repeal, or adopt any provision inconsistent with, such provision of the Certificate of Incorporation.
Notwithstanding any other provisions of the Certificate of Incorporation, and in addition to any other vote required by law, until April 30, 2011, Article VI subsection (a), Article VII
Section 2 and Section 3 and Article XII of the Certificate of Incorporation may not be altered, amended or repealed in any respect (including by merger, consolidation or otherwise), nor may any provision inconsistent therewith be adopted, unless such alteration, amendment, repeal or adoption is approved by the affirmative vote of at least 80% of the total voting power of the outstanding shares entitled to vote generally in the election of directors, voting together as a single class.
Limitations on Directors Liability . The Certificate of Incorporation contains a provision eliminating the personal liability of the Companys directors to the Company or any of its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by applicable law. The Certificate of Incorporation also contains provisions generally providing for indemnification and prepayment of expenses to the Companys directors and officers to the fullest extent permitted by applicable law.
Provisions of the Certificate of Incorporation and Bylaws that May Have an Anti-Takeover Effect. Certain provisions in the Certificate of Incorporation and the Bylaws, as well as the DGCL, may have the effect of discouraging transactions that involve an actual or threatened change in control of the Company. In addition, provisions of the Certificate of Incorporation, the Bylaws and the DGCL may be deemed to have an anti-takeover effect and may delay, deter or prevent a tender offer or takeover attempt that a stockholder might consider to be in its best interests.
· Blank Check Preferred Stock. The Certificate of Incorporation contains provisions that permit the board of directors to provide for the issuance of up to 5,000,000 shares of Preferred Stock in such series and, by filing a certificate pursuant to the applicable law of the State of Delaware (referred to herein as Preferred Stock Designation), to fix from time to time the number of shares to be included in any such series and the designations, powers, preferences, and rights of the shares of each such series and the qualifications, limitations and restrictions thereof. The authority of the Board with respect to each such series shall include, without limiting the generality of the foregoing, the determination of any or all of the following: (i) the number of shares of such series and the designation to distinguish the shares of such series from the shares of all other series; (ii) the voting powers, if any, of the holders of shares of such series and whether such voting powers are full or limited; (iii) the redemption rights, if any, applicable to such series, including, without limitation, the redemption price or prices, if any, to be paid for the shares of such series; (iv) whether dividends on such series, if any, will be cumulative or noncumulative, the dividend rate of such series, and the dates and preferences of dividends on such series; (v) the rights of the holders of shares of such series upon the voluntary or involuntary liquidation, dissolution or winding up of the affairs of, or upon any distribution of the assets of, the Company; (vi) whether the shares of such series shall be convertible into or exchangeable for shares of any other class or series, or any other security, of the Company or any other corporation, and, if so, the specification of such other class or series or such other security, the conversion or exchange price or prices or rate or rates, any adjustments thereof, the date or dates at which such shares shall be convertible or exchangeable and all other terms and conditions upon which such conversion or exchange may be made; (vii) the right, if any, of holders of shares of such
series to subscribe for or to purchase any securities of the Company or any other corporation or other entity; (viii) the terms and amount of any sinking fund, if any, applicable to such series; and (ix) any other preferences or relative, participating, optional or other special rights, qualifications, limitations or restrictions thereof.
· Initial Board. The board of directors shall consist of the persons named as directors in the plan supplement filed in the Bankruptcy Court on April 30, 2010 in connection with the Plan, and each director shall hold office until the first annual meeting of stockholders following the Effective Date, or until his or her successor is duly elected and qualified (the Initial Board). At the first annual meeting of stockholders following the Effective Date, which in no event shall be prior to April 30, 2011, unless otherwise approved by a majority of the Whole Board, and at each annual meeting thereafter, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such directors earlier death, resignation, disqualification or removal. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect a candidate. Election of directors of the Company need not be by written ballot unless the Bylaws of the Company shall so provide. If authorized by the board of directors, any requirement of a written ballot shall be satisfied by a ballot submitted by electronic transmission, provided that any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder or proxy holder.
· Special Meetings of Stockholders . The chairman of the board of directors, the chief executive officer of the Company, the president of the Company, or the secretary of the Company may call a special meeting of stockholders within 10 calendar days after receipt of written request of the board of directors, provided, however, that such request must be made by a majority of the Whole Board (as defined below) if the request is made prior to April 30, 2011 and relates to a special meeting of stockholders, one of the purposes of which is to elect or remove directors or to effect changes in the size of the board or upon written request of stockholders holding shares representing at least twenty percent (20%) of the voting power of the outstanding shares entitled to vote on the matter for which such meeting is to be called, voting as a single class, provided, however, that such stockholders may only make such request following April 30, 2011 in respect of a special meeting of stockholders, one of the purposes of which is to elect or remove directors. Any such request shall state the purpose or purposes of the proposed meeting.
· Advance Notice of Stockholder Action at a Meeting . Stockholders seeking to nominate directors or to bring business before a stockholder meeting must comply with certain timing requirements and submit certain information to the Company in advance of such meeting.
· No Written Consent of Stockholders . Any action required or permitted to be taken by the stockholders of the Company must be effected at a duly called annual or special meeting of stockholders of the Company and may not be effected by any consent in writing of such stockholders.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
2.1 Modified Fourth Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code, as confirmed by the Bankruptcy Court on April 29, 2010
3.1 Restated Certificate of Incorporation of Six Flags Entertainment Corporation
3.2 Amended and Restated Bylaws of Six Flags Entertainment Corporation
4.1 Registration Rights Agreement, dated as of April 30, 2010, between Six Flags Entertainment Corporation and certain holders of Common Stock
10.1 Six Flags Entertainment Corporation Long-Term Incentive Plan
10.2 Amended and Restated Employment Agreement, dated as of April 1, 2010, among the Company, Six Flags Operations Inc., Six Flags Theme Parks Inc. and Mark Shapiro
10.3 Amendment No. 1 to Employment Agreement, dated as of April 1, 2010, among the Company, Six Flags Operations Inc., Six Flags Theme Parks Inc. and Jeff Speed
10.4 Amendment No. 1 to Employment Agreement, dated as of April 1, 2010, among the Company, Six Flags Operations Inc., Six Flags Theme Parks Inc. and Louis Koskovolis
10.5 Amendment No. 1 to Employment Agreement, dated as of April 1, 2010, among the Company, Six Flags Operations Inc., Six Flags Theme Parks Inc. and Mark Quenzel
10.6 Amendment No. 1 to Employment Agreement, dated as of April 1, 2010, among the Company, Six Flags Operations Inc., Six Flags Theme Parks Inc. and Andrew Schleimer
99.1 Order Confirming Modified Fourth Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code, dated April 29, 2010, as entered by the Bankruptcy Court on April 30, 2010
Cautionary Statement:
The information contained in this Current Report, other than historical information, consists of forward-looking statements within the meaning of Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended. These statements may involve risks and uncertainties that could cause actual results to differ materially from those described in such statements. These risks and uncertainties include, among others, the potential adverse impact of the Chapter 11 Filing on the Companys operations, management and employees; customer response to the Chapter 11 Filing; and the risk factors or uncertainties listed from time to time in the Companys filings with the Securities and Exchange Commission (SEC) and with the Bankruptcy Court in connection with the Debtors Chapter 11 Filing. In addition, important factors, including factors impacting attendance, local conditions, events, disturbances and terrorist activities, risk of accidents occurring at theme parks, adverse weather conditions, general financial and credit market conditions, economic conditions (including consumer spending patterns), competition, pending, threatened or future legal proceedings and other factors could cause actual results to differ materially from the Companys expectations. Although the Company believes that the expectations reflected in such forward-looking statements are reasonable, it can give no assurance that such expectations will prove to have been correct. Reference is made to a more complete discussion of forward-looking statements and applicable risks contained under the captions Cautionary Note Regarding Forward-Looking Statements and Risk Factors in SFIs Annual Report on Form 10-K for the year ended December 31, 2009, and its other filings and submissions with the SEC, each of which are available free of charge on the Companys website http://www.sixflags.com.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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SIX FLAGS, INC. |
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By: |
/s/ James M. Coughlin |
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Name: James M. Coughlin |
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Title: General Counsel |
Date: May 3, 2010
EXHIBIT INDEX
Exhibit No. |
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Description |
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2.1 |
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Modified Fourth Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code, as confirmed by the Bankruptcy Court on April 29, 2010 |
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3.1 |
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Restated Certificate of Incorporation of Six Flags Entertainment Corporation |
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3.2 |
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Amended and Restated Bylaws of Six Flags Entertainment Corporation |
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4.1 |
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Registration Rights Agreement, dated as of April 30, 2010, between Six Flags Entertainment Corporation and certain holders of Common Stock |
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10.1 |
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Six Flags Entertainment Corporation Long-Term Incentive Plan |
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10.2 |
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Amended and Restated Employment Agreement, dated as of April 1, 2010, among the Company, Six Flags Operations Inc., Six Flags Theme Parks Inc. and Mark Shapiro |
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10.3 |
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Amendment No. 1 to Employment Agreement, dated as of April 1, 2010, among the Company, Six Flags Operations Inc., Six Flags Theme Parks Inc. and Jeff Speed |
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10.4 |
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Amendment No. 1 to Employment Agreement , dated as of April 1, 2010, among the Company, Six Flags Operations Inc., Six Flags Theme Parks Inc. and Louis Koskovolis |
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10.5 |
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Amendment No. 1 to Employment Agreement, dated as of April 1, 2010, among the Company, Six Flags Operations Inc., Six Flags Theme Parks Inc. and Mark Quenzel |
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10.6 |
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Amendment No. 1 to Employment Agreement, dated as of April 1, 2010, among the Company, Six Flags Operations Inc., Six Flags Theme Parks Inc. and Andrew Schleimer |
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99.1 |
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Order Confirming Modified Fourth Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code, dated April 29, 2010, as entered by the Bankruptcy Court on April 30, 2010 |
Exhibit 2.1
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x |
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In re |
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Chapter 11 |
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Premier International Holdings Inc., et al. , |
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Case No. 09-12019 (CSS) |
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Debtors. |
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(Jointly Administered) |
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DEBTORS MODIFIED FOURTH AMENDED JOINT PLAN OF
REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
Six Flags, Inc. and its affiliated debtors(1) propose the following chapter 11 plan pursuant to section 1121(a) of the Bankruptcy Code:
A. Definitions.
As used in the Plan, the following terms shall have the respective meanings specified below and be equally applicable to the singular and plural of terms defined:
(1) All of the Debtors are identified in Section 1.47 of this Plan.
B. Interpretation; Application of Definitions and Rules of Construction.
Unless otherwise specified, all section, article, schedule or exhibit references in the Plan are to the respective section in, article of or schedule or exhibit, to the Plan or the Plan Supplement, as the same may be amended, waived or modified from time to time. The words herein, hereof, hereto, hereunder and other words of similar import refer to the Plan as a whole and not to any particular section, subsection or clause contained in the Plan. A term used herein that is not defined herein shall have the meaning assigned to that term in the Bankruptcy Code. The rules of construction contained in section 102 of the Bankruptcy Code shall apply to the construction of the Plan. The headings in the Plan are for convenience of reference only and shall not limit or otherwise affect the provisions hereof. In computing any period of time prescribed or allowed by the Plan, unless otherwise expressly provided, the provisions of Bankruptcy Rule 9006(a) shall apply.
Except to the extent that any entity entitled to payment of any Allowed Administrative Expense Claim agrees to a less favorable treatment, each holder of an Allowed Administrative Expense Claim shall receive Cash in an amount equal to such Allowed Administrative Expense Claim on the later of the Effective Date and the date such Administrative Expense Claim becomes an Allowed Administrative Expense Claim, or as soon thereafter as is practicable; provided , however , that Allowed Administrative Expense Claims representing liabilities incurred in the ordinary course of business by the Debtors in Possession shall be paid in full and performed by the Debtors in Possession or Reorganized Debtors, as the case may be, in the ordinary course of business in accordance with the terms and subject to the conditions of any agreements governing, instruments evidencing or other documents relating to such transactions; provided , further , that if any such ordinary course expense is not billed or a request for payment is not made within ninety days after the Effective Date, claims for payment of such an ordinary course expense shall be barred. The reasonable, documented and unpaid fees and expenses of the Backstop Purchasers,
including attorneys fees, shall be Allowed Administrative Expense Claims and shall be paid without the need for further filing of a proof of Claim and without the need for further Bankruptcy Court approval.
Except to the extent that a holder of an Allowed Priority Tax Claim agrees to a different treatment, each holder of an Allowed Priority Tax Claim shall receive, at the option of the Debtors, with the consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), or the Reorganized Debtors, (a) on the Effective Date, or as soon thereafter as is practicable, Cash in an amount equal to such Allowed Priority Tax Claim or, (b) commencing on the Effective Date, or as soon thereafter as is practicable, and continuing over a period not exceeding five (5) years from and after the Petition Date, equal semi-annual Cash payments in an aggregate amount equal to such Allowed Priority Tax Claim, together with interest for the period after the Effective Date at the rate determined under applicable non-bankruptcy law as of the calendar month in which the Plan is confirmed, subject to the option of the Debtors, with the consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), or Reorganized Debtors to prepay the entire amount of the Allowed Priority Tax Claim. All Allowed Priority Tax Claims that are not due and payable on or before the Effective Date shall be paid in the ordinary course of business as such obligations become due.
All entities seeking awards by the Bankruptcy Court of compensation for services rendered or reimbursement of expenses incurred through and including the Confirmation Date under section 330, 331, 503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy Code shall (a) file, on or before the date that is forty-five (45) days after the Effective Date, their respective applications for final allowances of compensation for services rendered and reimbursement of expenses incurred and (b) be paid in full, in Cash, in such amounts as are Allowed by the Bankruptcy Court in accordance with the order relating to or Allowing any such Administrative Expense Claim. The Reorganized Debtors are authorized to pay compensation for professional services rendered and reimbursement of expenses incurred after the Confirmation Date in the ordinary course and without the need for Bankruptcy Court approval.
The following table (i) designates the classes of Claims against and Preconfirmation Equity Interests in the Debtors, (ii) specifies the classes of Claims and Preconfirmation Equity Interests that are Impaired by the Plan and therefore are deemed to reject the Plan or are entitled to vote to accept or reject the Plan in accordance with section 1126 of the Bankruptcy Code, and (iii) specifies the classes of Claims and Preconfirmation Equity Interests that are Unimpaired by the
Plan and therefore are deemed to accept the Plan in accordance with section 1126 of the Bankruptcy Code.
Class |
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Impairment |
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Entitled to Vote |
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|
1 |
|
Other Priority Claims |
|
Unimpaired |
|
No (deemed to accept) |
2 |
|
Secured Tax Claims |
|
Unimpaired |
|
No (deemed to accept) |
3 |
|
Other Secured Claims |
|
Unimpaired |
|
No (deemed to accept) |
4 |
|
SFTP Prepetition Credit Agreement Claims |
|
Unimpaired |
|
No (deemed to accept) |
5 |
|
SFTP TW Guaranty Claims |
|
Impaired |
|
Yes |
6 |
|
SFTP Partnership Parks Claims |
|
Unimpaired |
|
No (deemed to accept) |
7 |
|
SFTP and SFTP Subsidiary Unsecured Claims |
|
Unimpaired |
|
No (deemed to accept) |
8 |
|
SFO Prepetition Credit Agreement Claims |
|
Impaired |
|
Yes |
9 |
|
SFO TW Guaranty Claims |
|
Impaired |
|
Yes |
10 |
|
SFO Partnership Parks Claims |
|
Unimpaired |
|
No (deemed to accept) |
11 |
|
SFO Unsecured Claims |
|
Impaired(2) |
|
Yes |
12 |
|
SFI TW Guaranty Claims |
|
Impaired |
|
Yes |
13 |
|
SFI Partnership Parks Claims |
|
Unimpaired |
|
No (deemed to accept) |
14 |
|
SFI Unsecured Claims |
|
Impaired |
|
Yes |
15 |
|
Funtime, Inc. Unsecured Claims |
|
Impaired |
|
No (deemed to reject) |
16 |
|
Subordinated Securities Claims |
|
Impaired |
|
No (deemed to reject) |
17 |
|
Preconfirmation Subsidiary Equity Interests |
|
Unimpaired |
|
No (deemed to accept) |
17A |
|
Preconfirmation SFTP Equity Interests |
|
Unimpaired |
|
No (deemed to accept) |
18 |
|
Preconfirmation SFO Equity Interests |
|
Unimpaired(2) |
|
No (deemed to accept) |
19 |
|
Preconfirmation SFI Equity Interests |
|
Impaired |
|
No (deemed to reject) |
(2) The Debtors reserve the right to re-classify the impairment status of Class 11 and/or Class 18 to the extent any applicable orders of the Bankruptcy Court cause the Debtors to believe that such claims or equity interests are or are not impaired.
Distributions under the Plan to each holder of an Allowed Insured Claim shall be in accordance with the treatment provided under the Plan for the Class in which such Allowed Insured Claim is classified, but solely to the extent that such Allowed Insured Claim is within the Debtors self-insured retention. Amounts in excess of the applicable self-insured retention amount shall be recoverable only from the available Insurer and the Debtors shall be discharged to the extent of any such excess. Nothing in this Section 4.21 shall constitute a waiver of any claims, obligations, suits, judgments, damages, demands, debts, rights, causes of action or liabilities that any entity may hold against any other entity, including the Debtors Insurers.
Except as otherwise explicitly provided in this Plan, nothing herein shall be deemed to be a waiver or relinquishment of any rights, counterclaims or defenses the Debtors, the Reorganized Debtors or the Majority Backstop Purchasers may have, whether at law or in equity, with respect to any Unimpaired Claim.
Notwithstanding anything to the contrary herein, Intercompany Claims, at the election of the Reorganized Debtors, and with the consent of Time Warner (to the extent adversely affected thereby and which consent shall not be unreasonably withheld) and the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), holding such Claim, shall be (i) adjusted, released, waived and/or discharged as of the Effective Date, (ii) contributed to the capital of the obligor or (iii) Reinstated and left Unimpaired. Any such transaction may be effected on or subsequent to the Effective Date without any further action by the Reorganized Debtors.
An aggregate amount of $655.5 million (which is the aggregate amount required to be funded pursuant to the Backstop Commitment Agreement, the Direct Equity Purchase, the Additional Equity Purchase and the Delayed Draw Equity Purchase) has been deposited into escrow by the respective Backstop Purchasers, the Direct Equity Purchasers, the Additional Equity Purchasers and the Delayed Draw Equity Purchasers pursuant to the Escrow Agreement; provided , however , that the $25 million of the $655.5 million deposited into escrow shall be released to the Delayed Draw Equity Purchasers upon execution of documents evidencing the Delayed Draw Equity Purchasers obligations under the Delayed Draw Equity Purchase.
Subject to Section 5.4 hereof, and to the maximum extent provided by section 1145 of the Bankruptcy Code and applicable non-bankruptcy law, the issuance under the Plan of the New Common Stock and any other securities pursuant to this Plan and any subsequent sales, resales, transfers or other distributions of such New Common Stock or other securities shall be exempt from registration under the Securities Act, any other federal or state securities law registration requirements, and all rules and regulations promulgated thereunder; provided , however , that New Common Stock issued pursuant to the Offering and the Other Offerings will not be exempt from
registration pursuant to section 1145 of the Bankruptcy Code. Instead, such New Common Stock will be exempt from registration under the Securities Act by virtue of section 4(2) thereof and Regulation D promulgated thereunder. Thus, the New Common Stock being issued in the Offering and the Other Offerings is restricted securities within the meaning of Rule 144 under the Securities Act and accordingly may not be offered, sold, resold, pledged, delivered, allotted or otherwise transferred except in transactions that are exempt from, or in transactions not subject to, the registration requirements of the Securities Act and in compliance with any applicable state securities laws. The New Common Stock issued in the Offering shall bear a legend restricting their transferability until no longer required under applicable requirements of the Securities Act and state securities laws.
On the Effective Date, Reorganized SFI expects to enter into a registration rights agreement (the Registration Rights Agreement ), in form and substance acceptable to the Majority Backstop Purchasers, with each holder of greater than 5%, on a fully diluted basis, of the New Common Stock. Pursuant to the Registration Rights Agreement, holders collectively owning at least 20% of the outstanding shares of the New Common Stock party thereto would have the right to require Reorganized SFI to effect certain registered offerings of such holders New Common Stock acquired pursuant to the Plan or the Offering, on terms and conditions to be negotiated and reflected in such Registration Rights Agreement. Holders of the New Common Stock entitled to demand such registrations shall be entitled to request an aggregate of three (3) such registrations (or such provisions that the Postconfirmation Board adopts), and shall have customary piggyback registration rights. A form of the Registration Rights Agreement will be included in a Plan Supplement. Subject to meeting applicable listing standards, Reorganized SFI will seek to list the New Common Stock issued on the Effective Date for trading on a national securities exchange following the Effective Date.
Except as otherwise provided in the Plan, each Debtor shall continue to exist after the Effective Date as a separate corporate entity, limited liability company, partnership or other form, as the case may be, with all the powers of a corporation, limited liability company, partnership or other form, as the case may be, pursuant to the applicable law in the jurisdiction in which each applicable Debtor is incorporated or formed and pursuant to the respective certificate of incorporation and bylaws (or other formation documents) in effect prior to the Effective Date, except with respect to the Postconfirmation Organizational Documents (or other formation documents) that are amended by the Plan, the Plan Supplement or otherwise, and to the extent such documents are amended, such documents are deemed to be pursuant to the Plan and require no further action or approval. Notwithstanding the foregoing, on or as of the Effective Date, or as soon as practicable thereafter, and without the need for any further action, the Reorganized Debtors may: (i) cause any or all of the Reorganized Debtors to be merged into one or more of the Reorganized Debtors, dissolved or otherwise consolidated, (ii) cause the transfer of assets between or among the Reorganized Debtors, or (iii) engage in any other transaction in furtherance of the Plan.
The SFO Note Guaranty Claim shall be deemed satisfied in full in Cash from the payment to SFO of the SFTP Residual Property and the SFO Cash Payment under the Plan.
Each holder of an Allowed Claim in an Impaired Class of Claims that is entitled to vote on the Plan pursuant to Article III and Article IV of this Plan, shall be entitled to vote separately to accept or reject the Plan, as provided in such order as is entered by the Bankruptcy Court establishing procedures with respect to the solicitation and tabulation of votes to accept or reject the Plan, or any other order of the Bankruptcy Court.
If any impaired Class of Claims entitled to vote shall not accept the Plan by the requisite statutory majority provided in section 1126(c) of the Bankruptcy Code, the Debtors, with the
consent of the Majority Backstop Purchasers, after consultation with the Creditors Committee, (which consent shall not be unreasonably withheld), reserve the right to amend the Plan in accordance with Section 14.4 of this Plan or undertake to have the Bankruptcy Court confirm the Plan under section 1129(b) of the Bankruptcy Code or both. With respect to impaired Classes of claims that are deemed to reject the Plan, the Debtors may request that the Bankruptcy Court confirm the Plan pursuant to section 1129(b) of the Bankruptcy Code.
Distributions with respect to holders of Allowed Unsecured Claims shall only be made on each Distribution Date. All Allowed Unsecured Claims held by a single creditor against a single Debtor shall be aggregated and treated as a single Claim against such Debtor. At the written request of the Reorganized Debtors or the Disbursing Agent, any creditor holding multiple Allowed Unsecured Claims shall provide to the Reorganized Debtors or the Disbursing Agent, as the case may be, a single address to which any distributions shall be sent.
In the event that any payment or act under the Plan is required to be made or performed on a date that is not a Business Day, then the making of such payment or the performance of such act may be completed on the next succeeding Business Day, but shall be deemed to have been completed as of the required date.
All distributions under the Plan shall be made by Reorganized SFI as Disbursing Agent or such other entity designated by Reorganized SFI as a Disbursing Agent. No Disbursing Agent shall be required to give any bond or surety or other security for the performance of its duties.
Except as otherwise ordered by the Bankruptcy Court, any reasonable fees and expenses incurred by the Disbursing Agent (including, without limitation, taxes and reasonable attorneys fees and expenses) on or after the Effective Date shall be paid in Cash by the Reorganized Debtors in the ordinary course of business.
The Disbursing Agent shall be empowered to (a) effect all actions and execute all agreements, instruments and other documents necessary to perform its duties under the Plan, (b) make all distributions contemplated hereby, (c) employ professionals to represent it with respect to its responsibilities and (d) exercise such other powers as may be vested in the Disbursing Agent by order of the Bankruptcy Court, pursuant to the Plan or as deemed by the Disbursing Agent to be necessary and proper to implement the provisions hereof. In furtherance of the rights and powers of the Disbursing Agent, the Disbursing Agent shall have no duty or obligation to make distributions to any holder of an Allowed Claim unless and until such holder executes and delivers, in a form acceptable to the Disbursing Agent, any documents applicable to such distributions.
All distributions under the Plan that are unclaimed for a period of one (1) year after distribution thereof shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code and shall revest in the Reorganized Debtors and any entitlement of any holder of any Claims to such distributions shall be extinguished and forever barred.
The Claims register shall be closed on the Distribution Record Date, and any subsequent transfer of any Claim shall be prohibited. The Debtors and the Reorganized Debtors shall have no obligation to recognize any transfer of any such Claims occurring after the close of business on such date.
At the option of the Disbursing Agent, any Cash payment to be made hereunder may be made by a check or wire transfer or as otherwise required or provided in applicable agreements. All distributions of Cash, New Common Stock and Subscription Rights (as such term is defined in the Offering Procedures), as applicable, to the creditors of each of the Debtors under the Plan shall be made by, or on behalf of, the applicable Debtor.
No fractional shares of New Common Stock shall be distributed and no Cash shall be distributed in lieu of such fractional shares. When any distribution pursuant to the Plan on account of an Allowed Claim would otherwise result in the issuance of a number of shares of New Common Stock that is not a whole number, the actual distribution of shares of New Common Stock shall be rounded as follows: (a) fractions of one-half (½) or greater shall be rounded to the next higher whole number and (b) fractions of less than one-half (½) shall be rounded to the next lower whole number, with no further payment therefor. The total number of authorized shares of New Common Stock to be distributed to holders of Allowed Claims shall be adjusted as necessary to account for the foregoing rounding.
No payment of Cash less than one-hundred dollars ($100) shall be made to any holder of an Allowed Claim unless a request therefor is made in writing to the Reorganized Debtors.
The Debtors may, but shall not be required to, with the consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), setoff against or recoup from any Claim and the payments to be made pursuant to the Plan in respect of such Claim any Claims of any nature whatsoever that the Debtors may have against the claimant, but neither the failure to do so nor the allowance of any Claim hereunder shall constitute a waiver or release by the Debtors or Reorganized Debtors of any such claim they may have against such claimant.
To the extent that any Allowed Claim entitled to a distribution under the Plan consists of indebtedness and other amounts (such as accrued but unpaid interest thereon), such distribution shall be allocated first to the principal amount of the Claim (as determined for federal income tax purposes) and then, to the extent the consideration exceeds the principal amount of the Claim, to such other amounts.
As of the Effective Date, objections to, and requests for estimation of, Administrative Expense Claims and Claims against the Debtors may be interposed and prosecuted only by the Reorganized Debtors. Such objections and requests for estimation shall be served on the respective claimant and filed with the Bankruptcy Court on or before the latest of: (i) one hundred twenty (120) days after the Effective Date or (ii) such later date as may be fixed by the Bankruptcy Court (the Objection Deadline ); provided , however , that with respect to Claims that, as of the Objection Deadline, are subject to a pending claim objection, contested matter, or adversary proceeding (an Initial Objection ) wherein the Reorganized Debtors objection to such claim is ultimately denied, the Objection Deadline shall be extended to the latter of: (a) sixty (60) days from the date on which the Bankruptcy Court enters an order denying such Initial Objection or (b) sixty (60) days from the date on which any appellate court enters a Final Order reversing or vacating an order of the Bankruptcy Court granting such Initial Objection; provided , further , that with respect to Claims that (x) are filed (whether as an amended Claim, new Claim, or otherwise) after the Effective Date, and (y) that are not otherwise subject to adjustment, expunction or disallowance pursuant to Sections 7.2, 7.8, 7.9, 7.11 and 7.12 of this Plan, the Objection Deadline shall be one hundred twenty (120) days after the date on which such Claim was filed. Nothing herein shall affect the Debtors or the Reorganized Debtors ability to amend the Schedules in accordance with the Bankruptcy Code and the Bankruptcy Rules.
Any Claim that has been settled, paid and satisfied, or amended and superseded, may be adjusted or expunged on the Claims register by the Reorganized Debtors without a claims objection having to be filed and without any further notice to or action, order or approval of the Bankruptcy Court. In addition, all Claims filed on account of an employee benefit shall be deemed satisfied and expunged from the Claims register as of the Effective Date to the extent the Reorganized Debtors elect to honor such employee benefit, without any further notice to or action, order or approval of the Bankruptcy Court.
Notwithstanding any other provision hereof, if any portion of a Claim or Administrative Expense Claim is Disputed, no payment or distribution provided hereunder shall be made on account of such Claim or Administrative Expense Claim unless and until such Disputed Claim or Disputed Administrative Expense Claim becomes Allowed.
To the extent that a Disputed Claim or Disputed Administrative Expense Claim ultimately becomes an Allowed Claim or Allowed Administrative Expense Claim, distributions (if any) shall be made to the holder of such Allowed Claim or Allowed Administrative Expense Claim in accordance with the provisions of the Plan.
On and after the Effective Date, the Reorganized Debtors shall have the authority to compromise, settle, otherwise resolve or withdraw any objections to Administrative Expense
Claims and Claims against the Debtors and to compromise, settle or otherwise resolve any Disputed Administrative Expense Claims and Disputed Claims against the Debtors without approval of the Bankruptcy Court.
The Debtors, with the consent of the Majority Backstop Purchasers and Creditors Committee (which consent shall not be unreasonably withheld), or the Reorganized Debtors may at any time request that the Bankruptcy Court estimate any Contingent Claim, Unliquidated Claim or Disputed Claim pursuant to section 502(c) of the Bankruptcy Code regardless of whether any of the Debtors or the Reorganized Debtors previously objected to such Claim or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall retain jurisdiction to estimate any Claim at any time during litigation concerning any objection to any Claim, including, without limitation, during the pendency of any appeal relating to any such objection. In the event that the Bankruptcy Court estimates any Contingent Claim, Unliquidated Claim or Disputed Claim, the amount so estimated shall constitute either the Allowed amount of such Claim or a maximum limitation on such Claim, as determined by the Bankruptcy Court. If the estimated amount constitutes a maximum limitation on the amount of such Claim, the Debtors, with the consent of the Majority Backstop Purchasers and Creditors Committee (which consent shall not be unreasonably withheld), or the Reorganized Debtors may pursue supplementary proceedings to object to the allowance of such Claim. All of the aforementioned objection, estimation and resolution procedures are intended to be cumulative and not exclusive of one another. Claims may be estimated and subsequently compromised, settled, withdrawn or resolved by any mechanism approved by the Bankruptcy Court.
To the extent that a Disputed Claim becomes an Allowed Claim after the Effective Date, the holder of such Claim shall not be entitled to any interest thereon, except as may be required by Final Order, or applicable bankruptcy and non-bankruptcy law.
Any Claims held by Persons from which property is recoverable under section 542, 543, 550, or 553 of the Bankruptcy Code or by a Person that is a transferee of a transfer avoidable under section 522(f), 522(h), 544, 545, 547, 548, 549 or 724(a) of the Bankruptcy Code, shall be deemed disallowed pursuant to section 502(d) of the Bankruptcy Code, and such Persons may not receive any distributions on account of their Claims until such time as such Causes of Action against such Persons have been settled or a Final Order with respect thereto has been entered and all sums due, if any, to the Debtors by that Person have been turned over or paid to the Reorganized Debtors.
Consistent with Bankruptcy Rule 3003(c), the Reorganized Debtors shall recognize proofs of Claim timely filed by any Indenture Trustee in respect of any Claims under the Unsecured Notes Indentures. Accordingly, any Claim arising under the Unsecured Notes Indentures, proof of which is filed by the registered or beneficial holder of Unsecured Notes, shall be disallowed as
duplicative of the Claim of the applicable Indenture Trustee, without any further action of the Bankruptcy Court.
The Reorganized Debtors are authorized to serve upon a holder of a Claim an offer to allow judgment to be taken on account of such Claim, and, pursuant to Bankruptcy Rules 7068 and 9014, Federal Rule of Civil Procedure 68 shall apply to such offer of judgment. To the extent the holder of a Claim must pay the costs incurred by the Reorganized Debtors after the making of such offer, the Reorganized Debtors are entitled, in consultation with the Majority Backstop Purchasers, to set off such amounts against the amount of any distribution to be paid to such holder without any further notice to or action, order or approval of the Bankruptcy Court.
On or after the Effective Date, a Claim may not be filed or amended without the prior authorization of the Bankruptcy Court or the Reorganized Debtors and any such new or amended Claim filed without prior authorization shall be deemed disallowed in full and expunged without any further action.
A Claim shall be disallowed without a Claims objection having to be filed and without any further notice to or action, order or approval of the Bankruptcy Court, to the extent that the holder of such Claim receives payment in full on account of such Claim from a party that is not a Debtor or Reorganized Debtor. No distributions under the Plan shall be made on account of an Allowed Claim that is payable pursuant to one of the Debtors Insurance Policies until the holder of such Allowed Claim has exhausted all remedies with respect to such insurance policy. To the extent that one or more of the Debtors Insurers agrees to satisfy in full a Claim (if and to the extent adjudicated by a court of competent jurisdiction), then immediately upon such Insurers agreement, such Claim may be expunged from the Claims register without a Claims objection having to be filed and without any further notice to or action, order or approval of the Bankruptcy Court.
All Personal Injury Claims are Disputed Claims. No distributions shall be made on account of any Personal Injury Claim unless and until such Claim is liquidated and becomes an Allowed Claim. Any Personal Injury Claim which has not been liquidated prior to the Effective Date and as to which a proof of claim was timely filed in the Reorganization Cases, shall be determined and liquidated in the administrative or judicial tribunal in which it is pending on the Effective Date or, if no action was pending on the Effective Date, in any administrative or judicial tribunal of appropriate jurisdiction.
Pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, all Executory Contracts and unexpired leases that exist between the Debtors and any Person or entity shall be deemed assumed by the Debtors as of the Effective Date, except for any Executory Contract or unexpired lease (1) that has been rejected pursuant to an order of the Bankruptcy Court entered prior to the Effective Date, (2) as to which a motion for approval of the rejection of such Executory Contract or unexpired lease has been filed and served prior to the Effective Date, or (3) that is specifically designated as a contract or lease to be rejected on Schedules 8.1(A) (Executory Contracts) or 8.1(B) (Unexpired Leases), which schedules shall be contained in the Plan Supplement; provided , however , that the Debtors, with the consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), reserve the right, on or prior to the Effective Date, to amend Schedules 8.1(A) and 8.1(B) to delete any Executory Contract or unexpired lease therefrom or add any Executory Contract or unexpired lease thereto, in which event such Executory Contract(s) or unexpired lease(s) shall be deemed to be, respectively, either assumed or rejected as of the Effective Date. The Debtors shall provide notice of any amendments to Schedules 8.1(A) and/or 8.1(B) to the parties to the Executory Contracts and unexpired leases affected thereby. The listing of a document on Schedules 8.1(A) or 8.1(B) shall not constitute an admission by the Debtors, the Reorganized Debtors or the Majority Backstop Purchasers that such document is an Executory Contract or an unexpired lease or that the Debtors have any liability thereunder.
Entry of the Confirmation Order shall, subject to and upon the occurrence of the Effective Date, constitute approval, pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of the assumption of the Executory Contracts and unexpired leases assumed pursuant to Section 8.1 of this Plan, and of the rejection of the Executory Contracts and unexpired leases rejected pursuant to Section 8.1 of this Plan.
Unless otherwise specified on Schedules 8.1(A) or 8.1(B) of the Plan Supplement, each Executory Contract and unexpired lease listed or to be listed therein shall include any and all modifications, amendments, supplements, restatements or other agreements made directly or indirectly by any agreement, instrument or other document that in any manner affects such Executory Contract or unexpired lease, without regard to whether such agreement, instrument or other document is listed on Schedules 8.1(A) or 8.1(B).
Except to the extent that a different treatment has been agreed to by the parties, within thirty days after the Effective Date, the Reorganized Debtors shall cure any and all undisputed defaults under any Executory Contract or unexpired lease assumed by the Debtors pursuant to the Plan, in accordance with section 365(b) of the Bankruptcy Code. All disputed defaults that are required to be cured shall be cured either within thirty (30) days of the entry of a Final Order determining the amount, if any, of the Reorganized Debtors liability with respect thereto, or as may otherwise be agreed to by the parties. Notwithstanding Section 8.1 hereof, the Reorganized
Debtors, subject to the consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), shall retain their rights to reject any of the Debtors Executory Contracts or unexpired leases that are the subject of a dispute concerning amounts necessary to cure any defaults, in which event the Reorganized Debtors shall make their election to reject such Executory Contracts and unexpired leases within thirty (30) days of the entry of a Final Order determining the amount required to be cured.
Proofs of Claim for damages arising out of the rejection of an Executory Contract or unexpired lease must be filed with the Bankruptcy Court and served upon the attorneys for the Debtors or, on and after the Effective Date, the Reorganized Debtors, no later than thirty days after the later of (a) notice of entry of an order approving the rejection of such Executory Contract or unexpired lease, (b) notice of entry of the Confirmation Order, (c) notice of an amendment to Schedules 8.1(A) or 8.1(B) of the Plan Supplement (solely with respect to the party directly affected by such modification), or (d) notice of the election of the Debtors or the Reorganized Debtors (subject to the consent of the Majority Backstop Purchasers and Creditors Committee (which consent shall not be unreasonably withheld)) to reject under Section 8.4 of this Plan. All such proofs of Claim not filed within such time shall be forever barred from assertion against the Debtors and their estates or the Reorganized Debtors and their property.
Subject to the occurrence of the Effective Date, the obligations of the Debtors as of the Petition Date to indemnify, defend, reimburse or limit the liability (i) of directors, officers or employees who are directors, officers or employees of the Debtors on or after the Confirmation Date, respectively, against any claims or causes of action as provided in the Debtors articles of organization, certificates of incorporation, bylaws, other organizational documents or applicable law and (ii) arising under the Prepetition Credit Agreement shall survive confirmation of the Plan, remain unaffected thereby and not be discharged, irrespective of whether such indemnification, defense, reimbursement or limitation is owed in connection with an event occurring before or after the Petition Date.
Unless specifically rejected by a prior order of the Bankruptcy Court, all of the Debtors Insurance Policies which are executory, if any, and any agreements, documents or instruments relating thereto, shall be assumed under the Plan. Nothing contained in this Section 8.7 shall constitute or be deemed a waiver of any cause of action that the Debtors or Reorganized Debtors may hold against any entity, including, without limitation, the insurer, under any of the Debtors Insurance Policies.
Notwithstanding anything to the contrary in the Disclosure Statement, this Plan or the Confirmation Order (including, without limitation, any other provision that purports to be preemptory or supervening or grants an injunction or release): (a) nothing therein, amends, modifies, waives or impairs the terms of the insurance policies and agreements and the rights and
obligations of the parties thereunder, (b) the Reorganized Debtors shall be liable for all of the Debtors obligations and liabilities, whether now existing or hereafter arising, under the Insurance Policies and agreements, (c) the claims of the insurers against the Debtors arising under insurance policies and related agreements (i) shall be Allowed Administrative Expense Claims, (ii) shall be due and payable in the ordinary course of business by the Debtors (or after the Effective Date, by the Reorganized Debtors) pursuant to the terms of the insurance policies and agreements and (iii) shall not be discharged or released by the Plan or the Confirmation Order without the requirement to file or serve a request for payment of any Administrative Expense Claim, and (d) nothing therein limits, diminishes, or otherwise alters or impairs the Debtors, Reorganized Debtors and/or the Insurers defenses, claims, causes of action, or other rights under applicable non-bankruptcy law with respect to the insurance policies and related agreements.
Notwithstanding anything contained in the Plan to the contrary, unless rejected by order of the Bankruptcy Court, the Reorganized Debtors shall continue to honor, in the ordinary course of business, the Benefit Plans of the Debtors, including Benefit Plans and programs subject to sections 1114 and 1129(a)(13) of the Bankruptcy Code, entered into before or after the Petition Date and not since terminated.
Unless rejected by order of the Bankruptcy Court, on and after the Effective Date, pursuant to section 1129(a)(13) of the Bankruptcy Code, the Reorganized Debtors shall continue to pay all retiree benefits of the Debtors (within the meaning of and subject to section 1114 of the Bankruptcy Code) for the duration of the period for which the Debtors had obligated themselves to provide such benefits and subject to the right of the Reorganized Debtors to modify or terminate such retiree benefits in accordance with the terms thereof.
On the Effective Date, the management, control and operation of Reorganized SFI and the other Reorganized Debtors shall become the general responsibility of the Postconfirmation Board.
Reorganized SFI shall have a new board of directors, which shall consist of nine (9) directors (three (3) of which shall be independent as defined by the New York Stock Exchange). The
Majority Backstop Purchasers shall select six (6) directors to the Postconfirmation Board (at least one (1) of which shall be independent), and one (1) director, which shall be independent, shall be selected by the Creditors Committee (such selections, in each case, to be made after consideration of preconfirmation directors designated by Mark Shapiro to serve in such capacity). In addition, Mr. Shapiro shall serve as an initial director and shall be entitled to appoint the remaining director; provided , however , that such remaining director shall not be Daniel M. Snyder without the consent of the Majority Backstop Purchasers. Independent directors (including the designation and appointment, or qualification, of a third independent director), to the extent required by the New York Stock Exchange, shall be qualified to serve on Reorganized SFIs audit committee. All directors on the Postconfirmation Board shall stand for election annually. The individuals selected by the Majority Backstop Purchasers and the Creditors Committee to serve on the initial Postconfirmation Board shall be listed in the Plan Supplement.
On the Effective Date, or as soon thereafter as practicable, to the extent necessary, the Reorganized Debtors will file their Postconfirmation Organizational Documents, as required or deemed appropriate, with the appropriate Persons in their respective jurisdictions of incorporation or establishment.
The officers of the Debtors immediately prior to the Effective Date will serve as the initial officers of the Reorganized Debtors on and after the Effective Date. Such officers will serve in accordance with applicable non-bankruptcy law, any employment agreement with the Reorganized Debtors and the Postconfirmation Organizational Documents. Mr. Shapiros Employment Agreement shall be amended and restated prior to the Effective Date (in the form attached hereto as Exhibit B), and such amended and restated employment agreement shall be assumed by the Debtors and become effective as of the Effective Date. The Employment Agreements, other than Mr. Shapiros, shall be amended prior to the Effective Date (in the respective forms attached hereto as Exhibit C), and such amended employment agreements shall be assumed by the Debtors and become effective as of the Effective Date.
As of the Effective Date, the Debtors shall implement a management incentive plan for management, selected employees and directors of Reorganized SFI, providing incentive compensation in the form of stock options and/or restricted stock in Reorganized SFI equal to 15% of the New Common Stock, determined on a fully diluted basis (calculated as of the Effective Date after giving effect to the issuance of all New Common Stock hereunder, including, but not limited to, the Offering and the Other Offerings (including the Delayed Draw Equity Purchase)), comprised of at least 5% in the form of restricted stock and up to 10% in the form of options, the vesting and allocation of which shall be determined by mutual agreement of the chief executive officer of Reorganized SFI and the Postconfirmation Board.
The solicitation of votes on the Plan will include, and will be deemed to be, a solicitation for approval of the Long-Term Incentive Plan and the initial grants made thereunder. Entry of the Confirmation Order will constitute approval of the Long-Term Incentive Plan.
In addition to the Reorganized Debtors assuming all existing common law, contractual, and statutory indemnification obligations, including, without limitation, those included in the constitutive documents, of the Debtors in favor of the directors and officers as described in Section 8.2 of this Plan, the Reorganized Debtors may purchase director and officer liability insurance for the directors and officers of the Reorganized Debtors (in form and substance satisfactory to the Postconfirmation Board).
On the Effective Date and as reflected in the Postconfirmation Organizational Documents, Reorganized SFI shall be named Six Flags Entertainment Corporation.
The Effective Date shall not occur and the Plan shall not become effective unless and until the following conditions are satisfied in full or waived in accordance with Section 11.2 of this Plan:
Each of the conditions precedent in Section 11.1 hereof may be waived, in whole or in part, by the Debtors with the prior written consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld) and after consultation with the Creditors Committee; provided that (a) in no event shall the conditions set forth in clauses (a)(i) and (b) of Section 11.1 be waived without the consent of Time Warner (with respect to clause (b), only to the extent set forth in the New TW Loan Documents). Any such waivers may be effected at any time, without notice, without leave or order of the Bankruptcy Court and without any formal action on the part of the Bankruptcy Court.
Except as expressly provided or permitted in the Plan, any actions required to be taken on the Effective Date shall take place and shall be deemed to have occurred simultaneously, and no such action shall be deemed to have occurred prior to the taking of any other such action. In the event that one or more of the conditions specified in Section 11.1 hereof have not occurred or otherwise been waived pursuant to Section 11.2 hereof, (a) the Confirmation Order shall be vacated, (b) the Debtors and all holders of Claims and interests, including any Preconfirmation Equity Interests, shall be restored to the status quo ante as of the day immediately preceding the Confirmation Date as though the Confirmation Date never occurred and (c) the Debtors obligations with respect to Claims and Preconfirmation Equity Interests shall remain unchanged and nothing contained herein shall constitute or be deemed a waiver or release of any Claims or Preconfirmation Equity Interests by or against the Debtors or any other person or to prejudice in any manner the rights of the Debtors or any person in any further proceedings involving the Debtors.
On the Effective Date, pursuant to sections 1141(b) and (c) of the Bankruptcy Code, the Debtors, their properties and interests in property and their operations shall be released from the custody and jurisdiction of the Bankruptcy Court, and all property of the estates of the Debtors shall vest in the Reorganized Debtors free and clear of all Claims, Liens, encumbrances, charges and other interests, except as provided in the Plan. From and after the Effective Date, the Reorganized Debtors may operate their business and may use, acquire and dispose of property free of any restrictions of the Bankruptcy Code, the Bankruptcy Rules or the Local Bankruptcy Rules, subject to the terms and conditions of the Plan.
Subject to the occurrence of the Effective Date, on and after the Confirmation Date, the provisions of the Plan shall bind any holder of a Claim against, or Preconfirmation Equity Interest in, the Debtors and such holders respective successors and assigns, whether or not the Claim or interests, including any Preconfirmation Equity Interest, of such holder is Impaired under the Plan, whether or not such holder has accepted the Plan and whether or not such holder is entitled to a distribution under the Plan.
Except as provided in the Plan, the rights afforded in and the payments and distributions to be made under the Plan shall terminate all Preconfirmation SFI Equity Interests, and discharge all existing debts and Claims of any kind, nature or description whatsoever against or in the Debtors or any of their assets or properties to the fullest extent permitted by section 1141 of the Bankruptcy Code. Except as provided in the Plan, upon the Effective Date, all existing Claims against the Debtors and all Preconfirmation SFI Equity Interests shall be, and shall be deemed to be, discharged and terminated, and all holders of such Claims and Preconfirmation SFI Equity Interests shall be precluded and enjoined from asserting against the Reorganized Debtors, their successors or assignees or any of their assets or properties, any other or further Claim or Preconfirmation SFI Equity Interest based upon any act or omission, transaction or other activity of any kind or nature that occurred prior to the Effective Date, whether or not such holder has filed a proof of Claim or proof of interest and whether or not the facts or legal bases therefor were known or existed prior to the Effective Date.
Upon the Effective Date, in consideration of the distributions to be made under the Plan and except as otherwise expressly provided in the Plan, each holder (as well as any trustees and agents on behalf of each holder) of a Claim or Preconfirmation SFI Equity Interest and any Affiliate of such holder shall be deemed to have forever waived, released and discharged the Debtors, to the fullest extent permitted by section 1141 of the Bankruptcy Code, of and from any and all Claims, Preconfirmation SFI Equity Interests, Preconfirmation SFO Equity Interests and Preconfirmation SFTP Equity Interests, as the case may be, that arose prior to the Effective Date. Upon the Effective Date, all such Persons shall be forever precluded and enjoined, pursuant to section 524 of the Bankruptcy Code, from prosecuting or asserting any such discharged Claim against or terminated Preconfirmation SFI Equity Interests in the Debtors.
Except as expressly released or exculpated hereunder, nothing contained in the Plan shall be deemed to be a waiver or the relinquishment of any rights or Causes of Action that the Debtors, the Reorganized Debtors or the Majority Backstop Purchasers may have or may choose to assert against any Person.
None of the Exculpated Parties, and the Exculpated Parties respective current or former officers, directors, employees, accountants, financial advisors, investment bankers, agents, restructuring advisors and attorneys, and each of their respective agents and representatives (but, in each case, solely in connection with their official capacities in the Reorganization Cases), shall have or incur any liability for any Claim, cause of action or other assertion of liability for any act taken or omitted to be taken in connection with, or arising out of, the Reorganization Cases, the formulation, dissemination, confirmation, consummation or administration of the Plan, property to be distributed under the Plan or any other act or omission in connection with the Reorganization Cases, the Plan, the Disclosure Statement or any contract, instrument, document or other agreement related thereto; provided , however , that the foregoing shall not affect the liability of any Person that otherwise would result from any such act or omission to the extent such act or omission is determined by a Final Order to have constituted willful misconduct or gross negligence.
Except as otherwise expressly provided or contemplated by the Plan, the Plan Supplement or the Confirmation Order, effective as of the Confirmation Date but subject to the occurrence of the Effective Date, and in consideration of the services of and other forms of consideration being provided by (a) the Debtors; (b) the Prepetition Agent; (c) the Prepetition Lenders; (d) the Backstop Purchasers; (e) the Additional Equity Purchasers; (f) the Direct Equity Purchasers; (g) the Conversion Purchasers; (h) the Delayed Draw Equity Purchasers; (i) the SFI Noteholder Committee; (j) each Indenture Trustee; (k) the Exit Facility Lenders; (l) Time Warner, other than claims arising from or with respect to ordinary course of business arrangements among SFI and its affiliates, on the one hand, and Time Warner, on the other hand, including without limitation, advertising, marketing, or similar commercial arrangements and any trade payables with respect thereto; (m) the Creditors Committee and present or former members of the Creditors Committee (but solely in their capacity as such); and (n) for subsections (a) through (m), each of their respective present and former directors, officers, members, employees, affiliates, agents, financial advisors, restructuring advisors, attorneys and representatives who acted in such capacities after the Petition Date (the parties set forth in subsections (a) through (n), being the Released Parties ), the Debtors, their respective chapter 11 estates and the Reorganized Debtors and all holders of Claims that accept the Plan or are deemed to accept the Plan shall release, waive and discharge unconditionally and forever each of the Released Parties from any and all Claims, obligations, suits, judgments, damages, rights, causes of action and liabilities whatsoever (including those arising under the Bankruptcy Code), whether known or unknown, foreseen or unforeseen, existing or hereinafter arising in law, equity, or otherwise, based in whole or in part on any act, omission, transaction, event or other occurrence: (i) taking place before the Petition Date in connection with or relating to any of the Debtors or any of their direct or indirect subsidiaries; and (ii) in connection with, related to, or arising out of these Reorganization Cases, the pursuit of confirmation of the Plan, the consummation thereof, the administration thereof or the property to be distributed thereunder; provided that the foregoing shall not operate as a waiver of or release from any causes of action arising out of the willful misconduct or the gross negligence of any Released Party unless such Released Party acted in good faith and in a manner that such Released Party reasonably believed to be in or not opposed to the
best interests of the Debtors, and with respect to any criminal action or proceeding, had no reasonable cause to believe such Released Partys conduct was unlawful; provided , however , that the foregoing shall not operate as a waiver or release of any rights or obligations arising from and after the Effective Date in respect of any agreements entered into or reaffirmed hereunder as of or following the Effective Date.
Other than any releases granted herein, by the Confirmation Order and by Final Order of the Bankruptcy Court, as applicable, from and after the Effective Date, the Reorganized Debtors shall have the right to prosecute any and all avoidance or equitable subordination actions, recovery causes of action and objections to Claims under sections 105, 502, 510, 542 through 551, and 553 of the Bankruptcy Code that belong to the Debtors or Debtors in Possession.
Except as otherwise expressly provided in the Plan or in the Confirmation Order, all Persons or entities who have held, hold or may hold Claims against, or Preconfirmation SFI Equity Interests in, the Debtors are permanently enjoined, from and after the Effective Date, from (a) commencing or continuing in any manner any action or other proceeding of any kind on any such Claim or Preconfirmation SFI Equity Interest against any of the Reorganized Debtors or any of the Released Parties, to the extent of the release provided for in Section 12.7 hereof, (b) the enforcement, attachment, collection or recovery by any manner or means of any judgment, award, decree or order against any Reorganized Debtor or any of the Released Parties, to the extent of the release provided for in Section 12.7 hereof, with respect to such Claim or Preconfirmation SFI Equity Interest, (c) creating, perfecting or enforcing any encumbrance of any kind against any Reorganized Debtor or any of the Released Parties, to the extent of the release provided in Section 12.7 hereof, or against the property or interests in property of any Reorganized Debtor or any of the Released Parties with respect to such Claim or Preconfirmation SFI Equity Interest, (d) asserting any right of setoff, subrogation or recoupment of any kind against any obligation due to any Reorganized Debtor or any of the Released Parties, to the extent of the release provided in Section 12.7 hereof, or against the property or interests in property of any Reorganized Debtor or any of the Released Parties with respect to such Claim or Preconfirmation SFI Equity Interest and (e) pursuing any Claim released pursuant to the Plan.
Unless otherwise provided in the Confirmation Order, all injunctions or stays arising under or entered during the Reorganization Cases under section 105 or 362 of the Bankruptcy Code, or otherwise, that are in existence on the Confirmation Date shall remain in full force and effect until the Effective Date; provided , however , that no such injunction or stay shall preclude enforcement of parties rights under the Plan and the related documents.
The Bankruptcy Court shall have exclusive jurisdiction of all matters arising out of, or related to, the Reorganization Cases and the Plan pursuant to, and for the purposes of, sections 105(a) and 1142 of the Bankruptcy Code, including, without limitation:
On or before the Effective Date, and without the need for any further order or authority, the Debtors shall file with the Bankruptcy Court or execute, as appropriate, such agreements and other documents that are in form and substance reasonably satisfactory to the Majority Backstop Purchasers, after consultation with the Creditors Committee, as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan (which consent shall not be unreasonably withheld, except with respect to any provision in the Plan or action or inaction of the Debtors pursuant to the Plan under which the consent rights of the Majority Backstop Purchasers are not subject to a reasonableness requirement, in which case the consent of the Majority Backstop Purchasers shall not be subject to a reasonableness requirement). The Reorganized Debtors are authorized to execute, deliver, file, or record such contracts, instruments, releases, indentures and other agreements or documents and take such actions as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan and any securities issued pursuant to the Plan.
In connection with the Plan and all instruments issued in connection therewith and distributed thereon, any party issuing any instrument or making any distribution under the Plan shall comply with all applicable withholding and reporting requirements imposed by any federal, state or local
taxing authority, and all distributions under the Plan shall be subject to any such withholding or reporting requirements. Notwithstanding the above, each holder of an Allowed Claim that is to receive a distribution under the Plan shall have the sole and exclusive responsibility for the satisfaction and payment of any tax obligations imposed on such holder by any governmental unit, including income, withholding and other tax obligations, on account of such distribution. Any party issuing any instrument or making any distribution under the Plan has the right, but not the obligation, to not make a distribution until such holder has made arrangements satisfactory to such issuing or disbursing party for payment of any such tax obligations.
On the Effective Date, all matters provided for under the Plan that would otherwise require approval of the managers or directors of one or more of the Debtors or Reorganized Debtors, as the case may be, shall be in effect from and after the Effective Date pursuant to the applicable general corporation law of the states in which the Debtors or the Reorganized Debtors are incorporated or established, without any requirement of further action by the managers or directors of the Debtors or the Reorganized Debtors. On the Effective Date, or as soon thereafter as is practicable, the Reorganized Debtors shall, if required, file their amended articles of organization or certificates of incorporation, as the case may be, with the Secretary of State of the state in which each such entity is (or shall be) organized, in accordance with the applicable general business law of each such jurisdiction.
Alterations, amendments or modifications of or to the Plan may be proposed in writing by the Debtors at any time prior to the Confirmation Date, but only after consultation with and consent to such alteration, amendment or modification by Time Warner (to the extent set forth in the New TW Loan Documents) and the Majority Backstop Purchasers, after consultation with the Creditors Committee, (which consent shall not be unreasonably withheld); provided , however , that the Plan, as altered, amended or modified satisfies the conditions of sections 1122 and 1123 of the Bankruptcy Code and the Debtors have complied with section 1125 of the Bankruptcy Code. The Plan may be altered, amended or modified at any time after the Confirmation Date and before substantial consummation, but only after consultation with and consent to such alteration, amendment or modification by Time Warner (to the extent set forth in the New TW Loan Documents) and the Majority Backstop Purchasers, after consultation with the Creditors Committee, (which consent shall not be unreasonably withheld); provided , further , that the Plan, as altered, amended or modified, satisfies the requirements of sections 1122 and 1123 of the Bankruptcy Code, and the Bankruptcy Court, after notice and a hearing, confirms the Plan, as altered, amended or modified, under section 1129 of the Bankruptcy Code and the circumstances warrant such alterations, amendments or modifications. A holder of a Claim that has accepted the Plan will be deemed to have accepted the Plan, as altered, amended or modified, if the proposed alteration, amendment or modification does not materially and adversely change the treatment of the Claim of such holder.
Prior to the Effective Date, the Debtors , with the consent of Time Warner (to the extent set forth in the New TW Loan Documents) and the Majority Backstop Purchasers, after consultation with the Creditors Committee, (which consent shall not be unreasonably withheld) , may make appropriate technical adjustments and modifications to the Plan without further order or approval
of the Bankruptcy Court, provided that such technical adjustments and modifications do not adversely affect in a material way the treatment of holders of Claims or Preconfirmation Equity Interests.
The Debtors , with the consent of Time Warner (to the extent set forth in the New TW Loan Documents) and the Majority Backstop Purchasers, after consultation with the Creditors Committee (which consent shall not be unreasonably withheld), reserve the right to revoke or withdraw the Plan prior to the Confirmation Date. If the Debtors revoke or withdraw the Plan with respect to any one or more of the Debtors in accordance with this Section 14.5, or if the Effective Date does not occur as to any Debtor, then, as to such Debtor, the Plan and all settlements and compromises set forth in the Plan and not otherwise approved by a separate Final Order shall be deemed null and void. In such event, nothing contained herein shall constitute or be deemed a waiver or release of any Claims or Preconfirmation Equity Interests by or against the Debtors or any other Person or to prejudice in any manner the rights of the Debtors or any person in any further proceedings involving the Debtors.
Any Plan Supplement and the documents contained therein shall be in form, scope and substance satisfactory to the Debtors, with the consent of Time Warner (to the extent set forth in the New TW Loan Documents) and the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), and shall be filed with the Bankruptcy Court no later than five (5) Business Days before the date scheduled for hearing on confirmation of the Plan, provided that the documents included therein may thereafter be amended and supplemented, subject to the consent of Time Warner (to the extent set forth in the New TW Loan Documents) and the Majority Backstop Purchasers, after consultation with the Creditors Committee, (which consent shall not be unreasonably withheld), prior to execution, so long as no such amendment or supplement materially affects the rights of holders of Claims. The Plan Supplement and the documents contained therein are incorporated into and made a part of the Plan as if set forth in full herein.
On or before the Effective Date, all fees payable under section 1930 of chapter 123 of title 28 of the United States Code shall be paid in Cash. Following the Effective Date, all such fees shall be paid by the applicable Reorganized Debtor until the earlier of the conversion or dismissal of the applicable Reorganization Case under section 1112 of the Bankruptcy Code, or the closing of the applicable Reorganization Case pursuant to section 350(a) of the Bankruptcy Code.
On the Effective Date, except as provided below, the Creditors Committee shall be dissolved and the members thereof shall be released and discharged of and from all further authority, duties, responsibilities and obligations related to and arising from and in connection with the Reorganization Cases, and the retention or employment of the Creditors Committees attorneys, accountants and other agents, if any, shall terminate, except for (i) purposes of filing and
prosecuting applications for final allowances of compensation for professional services rendered and reimbursement of expenses incurred in connection therewith, and (ii) participating in any appeal of the Confirmation Order which may be filed by a party other than the Creditors Committee. On or before the Effective Date, the Creditors Committee shall dismiss, with prejudice, its pending appeal of the Bankruptcy Courts order denying its request to compel disclosure from the informal committee of holders of the 2016 Notes under Bankruptcy Rule 9019.
Pursuant to section 1146(a) of the Bankruptcy Code, the issuance, transfer or exchange of notes or equity securities under or in connection with the Plan, the creation of any mortgage, deed of trust or other security interest, the making or assignment of any lease or sublease or the making or delivery of any deed or other instrument of transfer under, in furtherance of, or in connection with the Plan, including, without limitation, the issuance of the New Common Stock, any merger agreements or agreements of consolidation, deeds, bills of sale or assignments executed in connection with any of the transactions contemplated under the Plan shall not be subject to any stamp, real estate transfer, mortgage recording or other similar tax.
The Debtors, with the consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), and the Reorganized Debtors are authorized to request an expedited determination of taxes under section 505(b) of the Bankruptcy Code for any or all returns filed for, or on behalf of, the Debtors for any and all taxable periods (or portions thereof) ending after the Petition Date through and including the Effective Date.
All exhibits and schedules to the Plan, including the Plan Supplement, are incorporated into and are a part of the Plan as if set forth in full herein.
On the Effective Date, the Plan shall be deemed to be substantially consummated under sections 1101 and 1127(b) of the Bankruptcy Code.
In the event that, prior to the Confirmation Date, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void or unenforceable, the Bankruptcy Court shall, at the request of the Debtors, subject to the consent of Time Warner (to the extent set forth in the New TW Loan Documents) and the Majority Backstop Purchasers (which consent shall not be unreasonably withheld, except with respect to any provision in the Plan or action or inaction of the Debtors pursuant to the Plan under which the consent rights of the Majority Backstop Purchasers are not subject to a reasonableness requirement, in which case the consent of the Majority Backstop Purchasers shall not be subject to a reasonableness requirement), have the power to alter and interpret such term or provision to make it valid or enforceable to the
maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void or unenforceable, and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration or interpretation, the remainder of the terms and provisions of the Plan shall remain in full force and effect and shall in no way be affected, impaired or invalidated by such holding, alteration or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and enforceable in accordance with its terms.
Except to the extent that the Bankruptcy Code or other federal law is applicable, or to the extent an exhibit to the Plan or Plan Supplement provides otherwise (in which case the governing law specified therein shall be applicable to such exhibit), the rights, duties, and obligations arising under the Plan shall be governed by, and construed and enforced in accordance with, the laws of the State of New York without giving effect to its principles of conflict of law.
Except as set forth in this Plan, to the extent that any provision of the Disclosure Statement conflicts with or is in, any way inconsistent with any provision of the Plan, the Plan shall govern and control.
All notices, requests and demands to or upon the Debtors and the Majority Backstop Purchasers must be in writing (including by facsimile transmission) to be effective and, unless otherwise expressly provided under the Plan, will be deemed to have been duly given or made when actually delivered or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows:
SIX FLAGS, INC.
1540 Broadway
New York, NY 10036
Attn: James Coughlin
Telephone: (212) 652-9380
Facsimile: (212) 354-3089
with a copy to:
On behalf of the Debtors
PAUL, HASTINGS, JANOFSKY &
WALKER LLP
191 North Wacker Drive, 30th Floor
Chicago, Illinois 60606
Telephone: (312) 499 -6000
Facsimile: (312) 499-6100
Attn: Paul E. Harner
Steven T. Catlett
- and -
PAUL, HASTINGS, JANOFSKY &
WALKER LLP
75 East 55th Street
New York, New York 10022
Telephone: (212) 318-6000
Facsimile: (212) 319-4090
Attn: William F. Schwitter
- and -
RICHARDS, LAYTON &
FINGER, PA.
One Rodney Square
920 North King Street
Wilmington, Delaware 19801
Telephone: (302) 651-7700
Facsimile: (302) 651-7701
Attn: Daniel J. DeFranceschi
- and -
On behalf of the Majority Backstop Purchasers
WHITE & CASE,
LLP
Wachovia Financial Center
200 South Biscayne
Boulevard, Suite 4900
Miami, Florida 33131
Telephone: (305) 371-2700
Facsimile: (305) 358-5744
Attn: Thomas E Lauria
John K. Cunningham
-and-
BAYARD, P.A.
222 Delaware Avenue, Suite 900
Wilmington, Delaware 19801
Telephone: (302) 655-5000
Facsimile: (302) 658-6395
Attn: Neil Glassman
GianClaudio Finizio
On behalf of the Official Committee of Unsecured Creditors
BROWN RUDNICK LLP
One Financial Center
Boston, MA 02111
Telephone: (617) 856-8587
Attn: Steven B. Levine
- and
BROWN RUDNICK LLP
Seven Times Square
New York, NY 10036
Attn: Andrew S. Dash
Dated: April 1, 2010
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Respectfully submitted, |
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Six Flags, Inc., et al. |
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(for itself and on behalf of each of the other Debtors) |
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By: |
/s/ Jeffrey R. Speed |
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Name: Jeffrey R. Speed |
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Title: Chief Financial Officer |
Exhibit A
AMENDED AND RESTATED ESCROW AGREEMENT
THIS AMENDED AND RESTATED ESCROW AGREEMENT (as the same may be amended or modified from time to time pursuant hereto, this Escrow Agreement) is made and entered into as of March 29, 2010, by and among the parties listed on Schedule I hereto (collectively, the Backstop Parties) and Wilmington Trust FSB (the Escrow Agent). Capitalized terms used herein, but not otherwise defined shall have the meanings ascribed to such terms in the Equity Commitment Agreement (as defined below). Immediately upon the execution by the Backstop Parties and the Escrow Agent of this Escrow Agreement, each and all of the terms and conditions of the agreement (the Original Escrow Agreement), dated March 18, 2010 shall be amended and restated in their entirety as set forth herein and the Original Escrow Agreement shall be terminated and shall be of no further force or effect.
WHEREAS , the Backstop Parties have agreed to deposit in escrow certain funds in accordance with the terms of that certain Amended Equity Commitment Agreement (the Equity Commitment Agreement), dated March 18, 2010, by and among the Backstop Parties and Six Flags, Inc. (the Debtor), and wish such deposit to be subject to the terms and conditions set forth herein.
NOW THEREFORE , in consideration of the foregoing and of the mutual covenants hereinafter set forth, the parties hereto agree as follows:
1. Appointment . Under the Original Escrow Agreement, the Backstop Parties appointed the Escrow Agent as their escrow agent for the purposes set forth therein. The Backstop Parties hereby reaffirm such appointment for the purposes set forth herein and the Escrow Agent hereby accepts such appointment under the terms and conditions set forth herein.
2. Fund. Pursuant to the Original Escrow Agreement, each Backstop Party agreed to deposit and deposited into an escrow account (the Escrow Account) with the Escrow Agent (i) the amount set forth opposite its name under the column entitled Offering Amount on Schedule I hereto, which in the aggregate for all Backstop Parties totals $505,500,000 (the Offering Amount), (ii) the amount, if any, set forth opposite its name under the column entitled Direct Purchase Amount on Schedule I hereto, which in the aggregate for all Backstop Parties totals $75,000,000 (the Direct Purchase Amount), (iii) the amount, if any, set forth opposite its name under the column entitled Additional Direct Purchase Amount on Schedule I hereto, which in the aggregate for all Backstop Parties totals $50,000,000 (the Additional Direct Purchase Amount) and (iv) the amount, if any, set forth opposite its name under the column entitled Delayed Draw Amount on Schedule I hereto, which in the aggregate totals $25,000,000 (the Delayed Draw Amount and collectively with the Offering Amount, the Direct Purchase Amount
and the Additional Direct Purchase Amount, the Escrow Deposit). Schedule I hereto also sets forth the aggregate amount contributed by each Backstop Party to the Escrow Deposit (the Aggregate Amount Per Backstop Party). The Escrow Agent shall hold the Escrow Deposit, which shall total $655,500,000 and, subject to the terms and conditions hereof, shall invest and reinvest the Escrow Deposit and the proceeds thereof (the Fund) as directed in Section 5. Upon deposit of the Escrow Deposit, the Escrow Agent acknowledged receipt of such deposit by delivery of a written notice to Pentwater Capital Management LP, the representative of the Backstop Parties (the Backstop Parties Representative).
3. Delayed Draw Equity Commitment Agreement. The Backstop Parties who have committed a portion of the Delayed Draw Amount agree to deliver to the Escrow Agent a copy of a definitive agreement finalizing the terms of the Delayed Equity Draw Commitment pursuant to the Equity Commitment Agreement (the Delayed Draw Equity Commitment Agreement) executed by such Backstop Parties. Upon such delivery, the Escrow Agent shall hold the signature pages of such Backstop Parties to the Delayed Draw Equity Commitment Agreement in escrow until it is released pursuant to the terms of Section 6.
4. Funds Not Subject to Bankruptcy Estates . The Backstop Parties intend and agree that the Fund will not be considered property of the bankruptcy estates of the Debtor or any of its affiliates, will not be subject to the bankruptcy estates of the Debtor or any of its affiliates in the Debtors proceedings under the Bankruptcy Code and will not be subject to the jurisdiction or control of the Bankruptcy Court, any bankruptcy trustee or the creditors of the Debtor or any of its affiliates.
5. Investment of Fund. The Escrow Agent shall hold the Escrow Deposit until March 29, 2010 in a non-interest bearing demand deposit account with the Escrow Agent, which account is covered by FDIC insurance for the entire balance in the account through June 30, 2010 under the Transaction Account Guarantee Program under the FDICs Temporary Liquidity Guarantee Program and is thereafter instructed to invest the Escrow Deposit in the Federated Government Obligations Fund (Institutional Service Shares); provided that if prior to March 29, 2010, the Escrow Agent has received written instructions from the Backstop Parties Representative to direct the Escrow Deposit into a different FDIC insured account, whether within the Escrow Agent or with a different FDIC insured institution, the Escrow Agent shall promptly act in accordance with such instructions; provided, further, that, notwithstanding the foregoing, the portion of the Escrow Deposit contributed by Kivu Investment Fund Limited, CQS Convertible and Quantitative Strategies Master Fund Limited and CQS Directional Opportunities Master Fund Limited (collectively, the CQS Funds) shall be deposited back into an FDIC insured account as soon as reasonably practical after March 31, 2010. The Backstop Parties agree to pay the Escrow Agent within ten Business Days of receipt of written demand thereof an amount equal to the FDIC insurance premiums required to be paid by the Escrow Agent in respect of the Fund for the period in which the Fund was held in an FDIC insured account (it being understood that such premiums are 5 basis points of the cash principal amount of the Fund calculated on the last day of each calendar quarter with respect to the cash principal amount of the Fund on such date); provided that, to the
extent that only the CQS Funds are held in an FDIC insured account, the Backstop Parties that contributed such funds shall pay any resulting FDIC insurance premiums required to be paid by the Escrow Agent in respect of such period. Each Backstop Party acknowledges that shares in the mutual fund are not obligations of Wilmington Trust FSB or Wilmington Trust Corporation, are not deposits and are not insured by the FDIC. The Escrow Agent or its affiliate may be compensated by the mutual fund for services rendered in its capacity as investment advisor, or other service provider, such as provider of shareholder servicing and distribution services, and such compensation is both described in detail in the prospectus for the fund, and is in addition to the compensation, if any, paid to Wilmington Trust FSB in its capacity as Escrow Agent hereunder. Any income received or losses incurred as a result of investments of the Escrow Deposit pursuant to this Section 5 shall be added to the Fund and disbursed in accordance with Section 6, provided that, to the extent the portion of the Fund contributed by each Backstop Purchaser is invested in income bearing accounts or instruments, each such Backstop Party shall receive its pro rata portion of such income in accordance with the commitment percentage of each Backstop Party calculated by dividing the portion of the Aggregate Amount Per Backstop Party invested in such income bearing accounts or instruments by the total amount of the Escrow Deposit invested in such income bearing accounts or instruments (each such percentage to be set forth on Schedule I hereto, an Aggregate Amount Commitment Percentage). Monthly statements will be provided to the Backstop Parties Representative reflecting transactions executed in connection with the investment of the Escrow Deposit.
6. Disposition and Termination . (a) The Escrow Agent shall release funds from the Fund in accordance with the following:
(i) the Escrow Agent shall promptly release to each Backstop Party, by wire transfer of immediately available funds to the account designated by each such Backstop Party in accordance with Schedule I attached hereto, such Backstop Partys Aggregate Amount Per Backstop Party upon the occurrence of the following events:
(A) within one Business Day (as defined below) following receipt of a certificate from the Backstop Parties Representative stating that the Equity Commitment Agreement has terminated in accordance with its terms;
(B) within one Business Day following receipt of a certificate from the Backstop Parties Representative stating that three days have elapsed from the entry by the Bankruptcy Court of an order allowing the claims asserted by the indenture trustee for the SFO Notes for make-whole, prepayment, no-call or other similar claims or damages;
(C) within one Business Day following April 19, 2010, unless prior to such date the Escrow Agent has received a certificate from the Backstop Parties Representative stating that the Debtor has executed the Equity Commitment Agreement or the court has granted the Backstop Parties Motion to Terminate Exclusivity; or
(D) within one Business Day following May 17, 2010, unless prior to such date the Fund was released by the Escrow Agent in accordance with Section 6(a)(ii) below.
(ii) unless previously released pursuant to Section 6(a)(i) above, on the Effective Date (which shall be communicated to the Escrow Agent at lease one day prior to such date), (A) the amount of the Offering (as such terms is defined in the Equity Commitment Agreement) that is not, or cannot be subscribed for and purchased prior to the relevant subscription expiration date of the Offering (the Unsubscribed Offering Amount), (B) the Direct Purchase Amount, and (C) the Additional Direct Purchase Amount shall be released to the subscription agent (the Subscription Agent) designated by the Backstop Parties in connection with the Offering following receipt by the Escrow Agent from the Backstop Parties Representative, of a certificate to that effect, it being understood that all such amounts shall be set forth on the certificate. Any funds out of the Offering Amount not released to the Subscription Agent in accordance with Section 6(a)(ii)(A), shall be automatically released to the Backstop Parties such that each Backstop Party shall receive an amount equal to the result of multiplying such Backstop Partys Offering Commitment Percentage by the difference between the Offering Amount and the Unsubscribed Offering Amount, it being understood that all such amounts shall be set forth on a certificate to be delivered to the Escrow Agent by the Backstop Parties Representative.
(iii) unless previously released pursuant to Section 6(a)(i) above, the Escrow Agent shall release to each Backstop Party who deposited a Delayed Draw Amount the amount deposited by such party upon the occurrence of the following events:
(A) within one Business Day following receipt of the Delayed Draw Equity Commitment Agreement (together with only the signature pages executed by the Backstop Parties party thereto) and a certificate from the Backstop Parties Representative setting forth the amount to be released by the Escrow Agent to each such Backstop Party; or
(B) within one Business Day following receipt of a certificate from the Backstop Parties Representative stating that the Bankruptcy Court denied confirmation of the Plan or the Effective Date did not occur within 15 days following the Confirmation Order.
(iv) unless previously released pursuant to Section 6(a)(i) above, as set forth in the first proviso to the first sentence in Section 5.
Upon delivery of the Fund by the Escrow Agent in accordance with this Section 6, this Escrow Agreement shall terminate.
(b) All payments pursuant to this Section 6 shall be made by wire transfer as directed by the Person entitled to receive such payments.
(c) The Escrow Agent shall release the Delayed Draw Equity Commitment Agreement and the signature pages executed by the Backstop Parties party thereto in accordance with the following:
(i) the Escrow Agent shall promptly release to the Backstop Parties Representative:
(A) upon receipt of a certificate from the Backstop Parties Representative stating that the Equity Commitment Agreement has terminated in accordance with its terms;
(B) upon receipt of a certificate from the Backstop Parties Representative stating that three days have elapsed from the entry by the Bankruptcy Court of an order allowing the claims asserted by the indenture trustee for the SFO Notes for make-whole, prepayment, no-call or other similar claims or damages;
(C) on April 19, 2010, unless prior to such date the Escrow Agent has received a certificate from the Backstop Parties Representative stating that the Debtor has executed the Equity Commitment Agreement or the court has granted the Backstop Parties Motion to Terminate Exclusivity; or
(D) on May 17, 2010, unless prior to such date the Delayed Draw Equity Commitment Agreement was released by the Escrow Agent in accordance with Section 6(c)(ii) below.
(ii) unless previously released pursuant to Section 6(c)(i) above, the Delayed Draw Equity Commitment Agreement shall be released to the Backstop Parties party thereto and Six Flags Entertainment Corporation at such time the Escrow Agent has received, on or after the Effective Date, the countersignature of Six Flags Entertainment Corporation to the Delayed Draw Equity Commitment Agreement.
7. Escrow Agent . (a) In acting hereunder, the Escrow Agent shall have only such duties as are specified herein and no implied duties shall be read into this Agreement, and the Escrow Agent shall not be liable for any act done, or omitted to be done, by it in the absence of its gross negligence, willful misconduct, fraud or bad faith.
(b) The Escrow Agent may act in reliance upon any writing or instrument or signature delivered by the Backstop Parties Representative which it, in good faith, believes genuine and may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument and may assume that any person purporting to give any writing, notice, advice or instruction in connection with the provisions hereof has been duly authorized to do so.
(c) The Escrow Agent shall be entitled to consult with legal counsel in the event that a question or dispute arises with regard to the construction of any of the provisions hereof, and shall incur no liability and shall be fully protected in acting in accordance with the advice or opinion of such counsel; provided that the Escrow Agent
has first consulted with and attempted to resolve any question or dispute with the Backstop Parties Representative prior to taking any such action.
(d) The Escrow Agent shall not be required to use its own funds in the performance of any of its obligations or duties or the exercise of any of its rights or powers, and shall not be required to take any action which, in the Escrow Agents sole and absolute judgment, could involve it in expense or liability unless furnished with security and indemnity which it deems, in its sole and absolute discretion, to be satisfactory.
(e) The Backstop Parties shall pay to the Escrow Agent compensation for its services hereunder $2,500 to be deducted from the balance of the Fund. In the event the Escrow Agent incurs any reasonable out-of-pocket cost or expense in connection with the Escrow Account or renders any extraordinary services in connection with the Escrow Account at the request of the Backstop Parties, the Escrow Agent shall be entitled to additional compensation therefor.
(f) The Backstop Parties Representative agrees to indemnify the Escrow Agent, its directors, officers, employees and agents (collectively, the Indemnified Parties), and hold the Indemnified Parties harmless from any and against any and all liabilities, losses, actions, suits or proceedings at law or in equity, and any other expenses, fees or charges, including, without limitation, reasonable attorneys fees and expenses (excluding allocated costs of in-house counsel, if any), which an Indemnified Party may incur or with which it may be threatened by reason of acting as or on behalf of the Escrow Agent under this Escrow Agreement or arising out of the existence of the Escrow Account, except to the extent the same shall be caused by the Escrow Agents gross negligence, willful misconduct or bad faith. The terms of this paragraph (f) shall survive termination of this Agreement.
(g) In the event the Escrow Agent receives conflicting instructions hereunder, the Escrow Agent shall be fully protected in refraining from acting until such conflict is resolved to the satisfaction of the Escrow Agent.
(h) The Escrow Agent may resign as Escrow Agent at any time upon sixty (60) days prior written notice of such resignation, and, upon its resignation, shall thereupon be discharged from any and all further duties and obligations under this Agreement, except for the transference of the Escrow Deposit to the Substitute Escrow Agent (as defined below) by giving notice in writing of such resignation to the Backstop Parties Representative, which notice shall specify a date upon which such resignation shall take effect. Upon the resignation of the Escrow Agent, the Backstop Parties, within thirty (30) business days after the Backstop Parties Representative receiving the foregoing notice from the Escrow Agent, shall designate a substitute escrow agent (the Substitute Escrow Agent), which Substitute Escrow Agent shall, upon its designation and notice of such designation to the Escrow Agent, succeed to all of the rights, duties and obligations of the Escrow Agent hereunder. In the event the Backstop Parties shall not have delivered to the Escrow Agent a written designation of Substitute Escrow Agent within the aforementioned thirty (30) day period, together with the consent to such
designation by the Substitute Escrow Agent, the Escrow Agent may apply to a court of competent jurisdiction to appoint a Substitute Escrow Agent, and the costs of obtaining such appointment shall be reimbursable from the Backstop Parties.
8. Patriot Act Disclosure/Taxpayer Identification Numbers/Tax Reporting.
(a) Patriot Act Disclosure. Section 326 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) requires the Escrow Agent to implement reasonable procedures to verify the identity of any person that opens a new account with it. Accordingly, the Backstop Parties acknowledge that Section 326 of the USA PATRIOT Act and the Escrow Agents identity verification procedures require the Escrow Agent to obtain information which may be used to confirm the Backstop Parties identity including without limitation name, address and organizational documents (identifying information). The Backstop Parties agree to provide the Escrow Agent with and consent to the Escrow Agent obtaining from third parties any such identifying information required as a condition of opening an account with or using any service provided by the Escrow Agent.
(b) Taxpayer Identification Numbers (TIN) . The Backstop Parties have provided the Escrow Agent with their respective fully executed Internal Revenue Service (IRS) Form W-8, or W-9 and/or other required documentation. The Backstop Parties each represent that its correct TIN assigned by the IRS, or any other taxing authority, is set forth in the delivered forms, as well as in the Substitute IRS Form W-9 set forth on the signature page of this Agreement.
(c) Tax Reporting. All interest or other income earned under the Escrow Agreement shall be allocated to each Backstop Party in accordance with its respective Aggregate Amount Commitment Percentage and reported, as and to the extent required by law, by the Escrow Agent to the IRS, or any other taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned from the Escrow Account by the Backstop Parties whether or not said income has been distributed during such year. Any other tax returns required to be filed will be prepared and filed by the Backstop Parties with the IRS and any other taxing authority as required by law. The Backstop Parties acknowledge and agree that the Escrow Agent shall have no responsibility for the preparation and/or filing of any income, franchise or any other tax return with respect to the Fund or any income earned by the Escrow Deposit . The Backstop Parties further acknowledge and agree that any taxes payable from the income earned on the investment of any sums held in the Escrow Deposit shall be paid by the Backstop Parties in accordance with their respective Aggregate Amount Commitment Percentage. In the absence of written direction from the Backstop Parties, all proceeds of the Fund shall be retained in the Fund and reinvested from time to time by the Escrow Agent as provided in this Agreement. The Escrow Agent shall withhold any taxes it deems appropriate, including but not limited to required withholding in the absence of proper tax documentation, and shall remit such taxes to the appropriate authorities.
9. Notices. All communications hereunder shall be in writing and shall be deemed to be duly given and received:
(a) upon delivery, if delivered personally, or upon confirmed transmittal, if by facsimile; or
(b) on the next Business Day (as hereinafter defined) if sent by overnight courier;
to the appropriate notice address set forth below or at such other address as any party hereto may have furnished to the other parties in writing by registered mail, return receipt requested.
If to the Backstop Parties Representative:
Pentwater Capital Management LP
227 W. Monroe St., Suite 4000
Chicago, IL 60606
Attention: Dan Murphy
With copy to:
White & Case LLP
Wachovia Financial Center
200 South Biscayne
Boulevard, Suite 4900
Miami, Florida 33131
Telephone: (305) 371-2700
Facsimile: (305) 358-5744
Attention: Thomas E. Lauria
John K. Cunningham
If to the Escrow Agent: Wilmington Trust
Corporate Client Services
50 South Sixth Street, Suite 1290
Minneapolis, MN 55402
Attention: Peter Finkel
Notwithstanding the above, in the case of communications delivered to the Escrow Agent pursuant to (a) and (b) of this Section 9, such communications shall be deemed to have been given to the Escrow Agent on the date received by an officer of the Escrow Agent or any employee of the Escrow Agent who reports directly to any such officer at the above-referenced office. In the event that the Escrow Agent, in its sole discretion, shall determine that an emergency exists, the Escrow Agent may use such other means of communication as the Escrow Agent deems appropriate. Business Day shall mean any day other than a Saturday, Sunday or any other day on which the Escrow Agent located at the notice address set forth above is authorized or required by law or executive order to remain closed.
10. Security Procedures. In the event funds transfer instructions are given (other than in writing at the time of execution of this Escrow Agreement), whether in writing, by facsimile or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Schedule II, and the Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent. If the Escrow Agent is unable to contact any of the authorized representatives identified in Schedule II, the Escrow Agent is hereby authorized to seek confirmation of such instructions by telephone call-back to any one or more of the Backstop Parties Representatives executive officers, (Executive Officers), as the case may be, which shall include the title of Chief Financial Officer, as the Escrow Agent may select. Such Executive Officer shall deliver to the Escrow Agent a fully executed incumbency certificate, and the Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. The Escrow Agent and the beneficiarys bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by the Backstop Parties to identify (a) the beneficiary, (b) the beneficiarys bank, or (c) an intermediary bank. The Escrow Agent may apply any of the escrowed funds for any payment order it executes using any such identifying number, even when its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiarys bank or an intermediary bank designated. The Backstop Parties acknowledge that these security procedures are commercially reasonable.
11. Compliance with Court Orders. In the event that any escrow property shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered by any court order affecting the property deposited under this Escrow Agreement, the Escrow Agent is hereby expressly authorized, in its sole discretion, to obey and comply with all writs, orders or decrees so entered or issued, which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; provided that the Escrow Agent shall notify the Backstop Parties Representative of any such event and provided further that the Backstop Parties Representative shall be given the opportunity to object to such proceedings with the help of a legal counsel of its choosing, and in the event that the Escrow Agent obeys or complies with any such writ, order or decree it shall not be liable to any of the parties hereto or to any other person, entity, firm or corporation, by reason of such compliance notwithstanding such writ, order or decree be subsequently reversed, modified, annulled, set aside or vacated.
12. Miscellaneous. The provisions of this Escrow Agreement may be waived, altered, amended or supplemented, in whole or in part, only by a writing signed by the Escrow Agent and the Backstop Parties. Neither this Escrow Agreement nor any right or interest hereunder may be assigned in whole or in part by the Escrow Agent or any party, without the prior consent of the Escrow Agent and the other parties. This Escrow Agreement shall be governed by and construed under the laws of the State of New York without regard to its conflicts of laws principles. Each party to this Escrow Agreement
irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the courts located in the State of New York. The parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Escrow Agreement. No party to this Escrow Agreement is liable to any other party for losses due to, or if it is unable to perform its obligations under the terms of this Escrow Agreement because of, acts of God, fire, war, terrorism, floods, strikes, electrical outages, equipment or transmission failure, or other causes reasonably beyond its control. This Escrow Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the parties to this Escrow Agreement may be transmitted by facsimile, and such facsimile will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces, and will be binding upon such party. If any provision of this Escrow Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction. A person who is not a party to this Agreement shall have no right to enforce any term of this Escrow Agreement. The Backstop Parties represent, warrant and covenant that each document, notice, instruction or request provided by such party to Escrow Agent shall comply with applicable laws and regulations. Where, however, the conflicting provisions of any such applicable law may be waived, they are hereby irrevocably waived by the parties hereto to the fullest extent permitted by law, to the end that this Escrow Agreement shall be enforced as written. Nothing in this Escrow Agreement, whether express or implied, shall be construed to give to any person or entity other than the Escrow Agent and the Backstop Parties any legal or equitable right, remedy, interest or claim under or in respect of this Escrow Agreement or any funds escrowed hereunder.
IN WITNESS WHEREOF , the parties hereto have executed this Escrow Agreement as of the date set forth above.
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Stark Master Fund Ltd. |
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By: Stark Offshore Management LLC, its investment manager |
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/s/ Richard Barnard |
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Name: Richard Barnard |
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Title: Authorized Signatory |
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Stark Criterion Master Fund Ltd. |
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By: Stark Criterion Management LLC, its investment manager |
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/s/ Richard Barnard |
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Name: Richard Barnard |
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Title: Authorized Signatory |
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Kivu Investment Fund Limited |
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By |
/s/ Martin Lancaster |
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Name: Martin Lancaster |
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Title: Director |
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CQS Convertible and Quantitative Strategies Master Fund Limited |
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By |
/s/ Tara Glaser |
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Name: Tara Glaser |
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Title: Authorised Signatory |
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CQS Directional Opportunities Master Fund Limited |
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By |
/s/ Tara Glaser |
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Name: Tara Glaser |
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Title: Authorised Signatory |
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Credit Suisse Securities (USA) LLC |
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By |
/s/ Robert J. MacNaughton |
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Name: Robert MacNaughton |
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Title: Managing Director |
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Capital Ventures International |
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By: Susquehanna Advisors Group, Inc., its authorized agent |
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/s/ Joel Greenberg |
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Name: Joel Greenberg |
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Title: Vice President |
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Mariner Tricadia Credit Strategies Master Fund Ltd. |
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By: Tricadia Capital Management, LLC, as Investment Manager |
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By |
/s/ Barry Monday |
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Name: Barry Monday |
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Title: Chief Administrative Officer |
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Tricadia Distressed and Special Situations Master Fund Ltd. |
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By: Tricadia Capital Management, LLC, as Investment Manager |
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By |
/s/ Barry Monday |
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Name: Barry Monday |
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Title: Chief Administrative Officer |
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Structured Credit Opportunities Fund II, LP |
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By: Tricadia Capital Management, LLC, as Investment Manager |
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By |
/s/ Barry Monday |
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Name: Barry Monday |
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Title: Chief Administrative Officer |
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1798 Relative Value Master Fund, Ltd. |
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By |
/s/ Gary Lehrman |
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Name: Gary Lehrman |
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Title: PM |
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Altai Capital Master Fund, Ltd. |
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By: Altai Capital Management, L.P., its investment advisor |
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/s/ Steven V. Tesoriere |
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Name: Steven V. Tesoriere |
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Title: Managing Principal |
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H Partners Management LLC |
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By |
/s/ Lloyd Blumberg |
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Name: Lloyd Blumberg |
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Title: Authorized Signatory |
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BHR Master Fund, Ltd. |
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By |
/s/ Michael Thompson |
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Name: Michael Thompson |
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Title: MD |
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BHCO Master, Ltd. |
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By |
/s/ Michael Thompson |
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Name: Michael Thompson |
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Title: MD |
Pentwater Growth Fund Ltd. |
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By: Pentwater Capital Management LP, its investment manager |
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By |
/s/ Neil Nenadovic |
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Name: Neil Nenadovic |
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Title: Chief Financial Officer |
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Pentwater Equity Opportunities Master Fund Ltd. |
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By: Pentwater Capital Management LP, its investment manager |
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By |
/s/ Neil Nenadovic |
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Name: Neil Nenadovic |
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Title: Chief Financial Officer |
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Oceana Master Fund Ltd. |
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By: Pentwater Capital Management LP, its investment manager |
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By |
/s/ Neil Nenadovic |
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Name: Neil Nenadovic |
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Title: Chief Financial Officer |
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LMA SPC on behalf of MAP 98 Segregated Portfolio |
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By: Pentwater Capital Management LP, its investment manager |
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By |
/s/ Neil Nenadovic |
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Name: Neil Nenadovic |
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Title: Chief Financial Officer |
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Fortelus Capital Management LLP |
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Title: |
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as Escrow Agent |
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Title: |
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Exhibit B
Form of Shapiro Amended and Restated Employment Agreement
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the Agreement), dated as of April 1, 2010, is entered into by and among Six Flags, Inc., a Delaware corporation (SF), Six Flags Operations Inc., a Delaware corporation, and Six Flags Theme Parks Inc., a Delaware corporation (collectively, the Company), and Mark Shapiro (the Executive).
W I T N E S S E T H :
WHEREAS, Executive is currently employed by the Company pursuant to that certain Employment Agreement between Executive and the Company dated as of April 1, 2009, as amended (the Existing Employment Agreement);
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Agreement; and
WHEREAS, this Agreement shall supersede and replace the Existing Employment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, it is hereby agreed as follows:
reasonable shall be substituted for the stated period, scope or area, and that the court or arbitrator shall revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. If any of the Restrictive Covenants are determined to be wholly or partially unenforceable in any jurisdiction, such determination shall not be a bar to or in any way diminish the Companys right to enforce any such covenant in any other jurisdiction.
If to the Company:
Six
Flags, Inc.
1540 Broadway; 15th Floor
New York, New York 10036
Attention: James M. Coughlin, Esq.
Fax: (212) 354-3089
If to Executive:
Mark Shapiro
c/o Six Flags, Inc.
1540 Broadway; 15th Floor
New York, New York 10036
following Executives death or judicially determined incompetence by giving the Company written notice thereof. In the event of Executives death or a judicial determination of his incompetence, reference in this Agreement to Executive shall be deemed, where appropriate, to refer to his beneficiary, estate or other legal representative.
the extent Executive would otherwise be entitled to any benefit (other than a payment) during the six (6) months beginning on termination of Executives employment that would be subject to the Section 409A additional tax, the benefit will be delayed and will begin being provided on the earlier of the first day following the six (6) month anniversary of Executives Date of Termination or death. Any payment or benefit due upon a termination of employment that represents a deferral of compensation within the meaning of Section 409A shall be paid or provided only upon a separation from service as defined in Treas. Reg. § 1.409A-1(h). Each payment made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. Amounts payable under this Agreement shall be deemed not to be a deferral of compensation subject to Section 409A to the extent provided in the exceptions in Treasury Regulation §§ 1.409A-1(b)(4) (short-term deferrals) and (b)(9) (separation pay plans, including the exception under subparagraph (iii)) and other applicable provisions of Treasury Regulation § 1.409A-1 through A-6. Notwithstanding anything to the contrary in this Agreement or elsewhere, any payment or benefit under this Agreement or otherwise that is exempt from Section 409A pursuant to Treasury Regulation § 1.409A-1(b)(9)(v)(A) or (C) (relating to certain reimbursements and in-kind benefits) shall be paid or provided only to the extent that the expenses are not incurred, or the benefits are not provided, beyond the last day of the second calendar year following the calendar year in which Executives separation from service occurs; and provided further that such expenses are reimbursed no later than the last day of the third calendar year following the calendar year in which Executives separation from service occurs. To the extent any expense reimbursement (including without limitation any reimbursement of interest or penalties related to taxes) or the provision of any in-kind benefit is determined to be subject to Section 409A (and not exempt pursuant to the prior sentence or otherwise), the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other calendar year (except for any life-time or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit .
IN WITNESS WHEREOF, Executive and the Company have caused this Agreement to be executed as of the date first above written.
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SIX FLAGS, INC. |
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Title: |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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Mark Shapiro |
EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Executive to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Adjusted EBITDA: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
|
Performance Level |
|
|
|
0.5 |
|
Actual Performance equals 90% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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|
|
0.75 |
|
Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
1.0 |
|
Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
1.5 |
|
Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
2.0 |
|
Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
Determined by interpolation between 0.5 and 2.0 |
|
Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If actual EBITDA for a given fiscal year is or exceeds 110% of Budgeted EBITDA, then Executive shall receive the Maximum Bonus notwithstanding the results of the other Performance Parameters.
6. Notwithstanding anything to the contrary above, Executive shall not receive an annual bonus greater than the Maximum Bonus.
7. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Exhibit C
Form of Amendments to Employment Agreements
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and Jeffrey Speed. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(v) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. Exhibit A to the Agreement is hereby amended in its entirety to read as provided in Exhibit A to this Amendment.
4. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
5. Except as set forth in this Amendment, the Agreement remains in full force and effect.
(Signature page follows)
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Jeffrey Speed |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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By: |
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Name: |
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Title: |
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EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Chief Executive Officer to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Adjusted EBITDA: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
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Performance Level |
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|
0.5 |
|
Actual Performance equals 90% of the Performance Parameter (including Budgeted |
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|
Adjusted EBITDA) |
|
|
|
0.75 |
|
Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
1.0 |
|
Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
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1.5 |
|
Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
2.0 |
|
Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
Determined by interpolation between 0.5 and 2.0 |
|
Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and Michael Antinoro. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(iv) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. Exhibit A to the Agreement is hereby amended in its entirety to read as provided in Exhibit A to this Amendment.
4. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
5. Except as set forth in this Amendment, the Agreement remains in full force and effect.
(Signature page follows)
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Michael Antinoro |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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By: |
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Name: |
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Title: |
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EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Chief Executive Officer to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Adjusted EBITDA: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
|
Performance Level |
|
|
|
0.5 |
|
Actual Performance equals 90% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
0.75 |
|
Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
1.0 |
|
Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
1.5 |
|
Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
2.0 |
|
Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
Determined by interpolation between 0.5 and 2.0 |
|
Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and Louis Koskovolis. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(iv) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. Exhibit A to the Agreement is hereby amended in its entirety to read as provided in Exhibit A to this Amendment.
4. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
5. Except as set forth in this Amendment, the Agreement remains in full force and effect.
(Signature page follows)
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Louis Koskovolis |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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By: |
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Name: |
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Title: |
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EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship Revenue: Total budgeted sponsorship revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Chief Executive Officer to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Sponsorship Revenue: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA, provided that if actual Sponsorship Revenue equals or exceeds 100% of Budgeted Sponsorship Revenue for the fiscal year, Executive shall be entitled to receive 50% of the Target Bonus.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
|
Performance Level |
|
|
|
0.5 |
|
Actual Performance equals 90% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
0.75 |
|
Actual Performance equals 95% of the |
|
|
Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
1.0 |
|
Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
1.5 |
|
Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
2.0 |
|
Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
Determined by interpolation between 0.5 and 2.0 |
|
Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and Mark Quenzel. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(iv) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. Exhibit A to the Agreement is hereby amended in its entirety to read as provided in Exhibit A to this Amendment.
4. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
5. Except as set forth in this Amendment, the Agreement remains in full force and effect.
(Signature page follows)
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Mark Quenzel |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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||
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By: |
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Name: |
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Title: |
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EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Chief Executive Officer to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Adjusted EBITDA: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
|
Performance Level |
|
|
|
0.5 |
|
Actual Performance equals 90% of the Performance Parameter (including Budgeted |
|
|
Adjusted EBITDA) |
|
|
|
0.75 |
|
Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
1.0 |
|
Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
1.5 |
|
Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
2.0 |
|
Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
|
|
|
Determined by interpolation between 0.5 and 2.0 |
|
Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and Andrew Schleimer. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(iv) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. Exhibit A to the Agreement is hereby amended in its entirety to read as provided in Exhibit A to this Amendment.
4. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
5. Except as set forth in this Amendment, the Agreement remains in full force and effect.
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Andrew Schleimer |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
|
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SIX FLAGS THEME PARKS INC. |
|
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||
|
|
||
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By: |
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|
|
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Name: |
|
|
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Title: |
|
EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Chief Executive Officer to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Adjusted EBITDA: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
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Performance Level |
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0.5 |
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Actual Performance equals 90% of the Performance Parameter (including Budgeted |
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Adjusted EBITDA) |
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0.75 |
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Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.0 |
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Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.5 |
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Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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2.0 |
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Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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Determined by interpolation between 0.5 and 2.0 |
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Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and James Coughlin. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(iii) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
4. Except as set forth in this Amendment, the Agreement remains in full force and effect.
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James Coughlin |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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By: |
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Name: |
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Exhibit 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
SIX FLAGS, INC.
The undersigned, Mark Shapiro, certifies that he is the President and Chief Executive Officer of Six Flags, Inc., a corporation organized and existing under the laws of the State of Delaware (the Company), and does hereby further certify as follows:
1. The present name of the Company is Six Flags, Inc. The Company was originally incorporated under the name Premier Parks Holdings Corporation. The original certificate of incorporation of the Company (the Certificate of Incorporation) was filed with the Secretary of State of the State of Delaware (the Delaware Secretary of State) on December 9, 1997.
2. This restated certificate of incorporation of the Company (the Restated Certificate of Incorporation), which restates and integrates and also further amends the provisions of the existing Certificate of Incorporation, has been duly adopted in accordance with the provisions of Sections 245 and 303 of the General Corporation Law of the State of Delaware (the DGCL). Provision for the making of this Restated Certificate of Incorporation is contained in the order of the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court) dated as of April 29, 2010 confirming the Modified Fourth Amended Joint Plan of Reorganization of Six Flags, Inc., and its affiliated debtors filed pursuant to section 1121(a) of chapter 11 of title 11 of the United States Code (the Plan of Reorganization).
3. This Restated Certificate of Incorporation has been duly executed and acknowledged by an officer of the Company designated in such order of the Bankruptcy Court in accordance with the provisions of Sections 245 and 303 of the DGCL.
4. The text of the Certificate of Incorporation of the Company is hereby amended and restated to read in its entirety as follows:
ARTICLE I
NAME
The name of the corporation is Six Flags Entertainment Corporation (the Company).
ARTICLE II
REGISTERED AGENT
The address of the Companys registered office in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE 19808, New Castle County. The name of the Companys registered agent at such address is Corporation Service Company.
ARTICLE III
PURPOSE
The purpose of the Company is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the DGCL).
ARTICLE IV
CAPITALIZATION
Section 1. Authorized Capital Stock . The total number of shares of capital stock that the Company is authorized to issue is 65,000,000 shares, consisting of 60,000,000 shares of common stock, par value $0.025 per share (Common Stock), and 5,000,000 shares of preferred stock, par value $1.00 per share (Preferred Stock). To the extent prohibited by Section 1123(a)(6) of Chapter 11 of Title 11 of the United States Code (the Bankruptcy Code), the Company will not issue non-voting equity securities; provided , however the foregoing restriction will (a) have no further force and effect beyond that required under Section 1123 of the Bankruptcy Code, (b) only have such force and effect for so long as Section 1123 of the Bankruptcy Code is in effect and applicable to the Company and (c) in all events may be amended or eliminated in accordance with applicable law as from time to time may be in effect.
The number of authorized shares of either of the Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Company entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of either of the Common Stock or Preferred Stock voting separately as a class shall be required therefor.
Section 2. Preferred Stock . The Preferred Stock may be issued from time to time in one or more series. The Board of Directors of the Company (the Board) is hereby authorized to provide for the issuance of shares of Preferred Stock in such series and, by filing a certificate pursuant to the applicable law of the State of Delaware (referred to herein as Preferred Stock Designation), to fix from time to time the number of shares to be included in any such series and the designations, powers, preferences, and rights of the shares of each such series and the qualifications, limitations and restrictions thereof. The authority of the Board with respect to each such series shall include, without limiting the generality of the foregoing, the determination of any or all of the following:
(a) the number of shares of such series and the designation to distinguish the shares of such series from the shares of all other series;
(b) the voting powers, if any, of the holders of shares of such series and whether such voting powers are full or limited;
(c) the redemption rights, if any, applicable to such series, including, without limitation, the redemption price or prices, if any, to be paid for the shares of such series;
(d) whether dividends on such series, if any, will be cumulative or noncumulative, the dividend rate of such series, and the dates and preferences of dividends on such series;
(e) the rights of the holders of shares of such series upon the voluntary or involuntary liquidation, dissolution or winding up of the affairs of, or upon any distribution of the assets of, the Company;
(f) whether the shares of such series shall be convertible into or exchangeable for shares of any other class or series, or any other security, of the Company or any other corporation, and, if so, the specification of such other class or series or such other security, the conversion or exchange price or prices or rate or rates, any adjustments thereof, the date or dates at which such shares shall be convertible or exchangeable and all other terms and conditions upon which such conversion or exchange may be made;
(g) the right, if any, of holders of shares of such series to subscribe for or to purchase any securities of the Company or any other corporation or other entity;
(h) the terms and amount of any sinking fund, if any, applicable to such series; and
(i) any other preferences or relative, participating, optional or other special rights, qualifications, limitations or restrictions thereof.
Section 3. Common Stock . The rights of the Common Stock to dividends and other distributions shall be subject to the express terms of the Preferred Stock and any series thereof. Except as may otherwise be provided in this Restated Certificate of Incorporation, in a Preferred Stock Designation or by applicable law, each holder of Common Stock shall have the exclusive right to vote and shall be entitled to one vote on each matter, including the election of directors to the Board, submitted to a vote at a meeting of stockholders for each share of Common Stock held of record by such holder as of the record date for such meeting.
Section 4. Dividends and Distributions . Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock or any class or series of stock having a preference over or the right to participate with the Common Stock with respect to the payment of dividends and other distributions in cash, stock of any corporation or property of the Company, such dividends and other distributions may be declared and paid on the Common Stock out of the assets of the Company that are by law available therefor at such times and in such amounts as the Board of Directors in its discretion shall determine.
Section 5. Liquidation, Dissolution or Winding Up . In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company, after payment
or provision for payment of the debts and other liabilities of the Company and of the preferential and other amounts, if any, to which the holders of Preferred Stock shall be entitled, the holders of all outstanding shares of Common Stock shall be entitled to receive the remaining assets of the Company available for distribution ratably in proportion to the number of shares of Common Stock held by each such stockholder.
ARTICLE V
BYLAWS
In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board is expressly authorized to make, alter and repeal the Amended and Restated Bylaws (as amended, the Bylaws) of the Company. Any adoption, alteration or repeal of a Bylaw must be approved either by (a) the affirmative vote of a majority of the Whole Board (as defined below) or the unanimous written consent of all members of the Board, or (b) the affirmative vote of the holders of at least seventy-five percent (75%) of the voting power of the outstanding shares entitled to vote generally in the election of directors, voting as a single class. For the purposes of this Article V, Whole Board means the total number of directors the Company would have if there were no vacancies.
ARTICLE VI
NO ACTION BY WRITTEN CONSENT; SPECIAL MEETINGS OF STOCKHOLDERS
Except to the extent expressly permitted by a Preferred Stock Designation relating to a series of Preferred Stock:
(a) any action required or permitted to be taken by the stockholders of the Company must be effected at a duly called annual or special meeting of stockholders of the Company and may not be effected by any consent in writing of such stockholders; and
(b) special meetings of stockholders of the Company may be called only by (i) the Chairman of the Board, (ii) the Chief Executive Officer of the Company, (iii) the President of the Company, or (iv) the Secretary of the Company within 10 calendar days after receipt of written request of the Board provided, however, that such request must be made by a majority of the Whole Board if the request is made prior to April 30, 2011 and relates to a special meeting of stockholders, one of the purposes of which is to elect or remove directors or to effect changes in the size of the Board or upon written request of stockholders holding shares representing at least twenty percent (20%) of the voting power of the outstanding shares entitled to vote on the matter for which such meeting is to be called, voting as a single class, provided, however, that such stockholders may only make such request following April 30, 2011 in respect of a special meeting of stockholders, one of the purposes of which is to elect or remove directors. Any such request shall state the purpose or purposes of the proposed meeting.
At any annual meeting or special meeting of stockholders of the Company, only such business shall be conducted or considered as has been brought before such meeting in the manner provided in the Bylaws of the Company.
ARTICLE VII
DIRECTORS
Section 1. Board Powers . The business and affairs of the Company shall be managed by, or under the direction of, the Board. In addition to the powers and authority expressly conferred upon the Board by statute, this Restated Certificate of Incorporation or the Bylaws of the Company, the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Company, subject, nevertheless, to the provisions of the DGCL, this Restated Certificate of Incorporation and the Bylaws; provided , however , that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board that was otherwise valid.
Section 2. Number, Election and Terms of Directors . Subject to the rights, if any, of the holders of shares of any series of Preferred Stock to elect additional directors under circumstances specified in a Preferred Stock Designation, the number of the directors of the Company shall initially be fixed at nine (9) and shall thereafter be fixed from time to time by resolution of the Board. Upon this Restated Certificate of Incorporation becoming effective pursuant to the DGCL, the Board shall consist of the persons named as directors in the plan supplement filed in the Bankruptcy Court on April 30, 2010 in connection with the Plan of Reorganization, and each director shall hold office until the first annual meeting of stockholders following the Effective Date (as defined in the Plan of Reorganization)), or until his or her successor is duly elected and qualified. At the first annual meeting of stockholders following the Effective Date, which in no event shall be prior to April 30, 2011, unless otherwise approved by a majority of the Whole Board, and at each annual meeting thereafter, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such directors earlier death, resignation, disqualification or removal. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect a candidate. Election of directors of the Company need not be by written ballot unless the Bylaws of the Company shall so provide. If authorized by the Board, any requirement of a written ballot shall be satisfied by a ballot submitted by electronic transmission, provided that any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder or proxy holder.
Section 3. Removal of Directors . Except for such additional directors, if any, as are elected by the holders of any series of Preferred Stock as provided for in a Preferred Stock Designation, until April 30, 2011, any director, or the entire Board, may be removed from office at any time, with or without cause, only by the affirmative vote of at least 80% of the total voting power of the outstanding shares entitled to vote generally in the election of directors, voting together as a single class. From and after April 30, 2011, except for such additional directors, if
any, as are elected by the holders of any series of Preferred Stock as provided for in a Preferred Stock Designation, any director, or the entire Board, may be removed from office at any time, with or without cause, only by the affirmative vote of at least a majority of the total voting power of the outstanding shares entitled to vote generally in the election of directors, voting together as a single class.
Section 4. Nomination of Director Candidates . Advance notice of stockholder nominations for the election of directors must be given in the manner, if any, provided in the Bylaws of the Company.
Section 5. Newly Created Directorships and Vacancies . Unless otherwise provided by law or this Restated Certificate of Incorporation and subject to the rights, if any, of the holders of any series of Preferred Stock to elect additional directors under circumstances specified in a Preferred Stock Designation, newly created directorships resulting from any increase in the number of directors and any vacancies on the Board resulting from death, resignation, disqualification, removal, or other cause shall be filled by a majority vote of the directors then in office, even if the number of such directors then in office is less than a quorum, or by a sole remaining director, if applicable. Any director elected in accordance with the preceding sentence shall hold office until the expiration of the term of office of the director whom such director has replaced or until such directors successor has been elected and qualified. No decrease in the number of directors constituting the Board may shorten the term of any incumbent director.
ARTICLE VIII
LIMITATION ON LIABILITY
A director of the Company shall not be personally liable to the Company or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. If the DGCL is hereafter amended to authorize corporate action further limiting or eliminating the liability of directors, then the liability of a director to the Company or its stockholders shall be limited or eliminated to the fullest extent permitted by the DGCL, as so amended. Any amendment, modification or repeal of this Article VIII or by changes in law, or the adoption of any other provision of this Restated Certificate of Incorporation inconsistent with this Article VIII will, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Company to further limit or eliminate the liability of directors) and shall not adversely affect any right or protection of a director of the Company existing at the time of such amendment, modification or repeal or adoption of such inconsistent provision with respect to acts or omissions occurring prior to such amendment, modification or repeal or adoption of such inconsistent provision.
ARTICLE IX
INDEMNIFICATION
Section 1. Right to Indemnification . The Company shall indemnify and hold harmless, to the fullest extent not prohibited by applicable law as it presently exists or may hereafter be amended, any person (a Covered Person) who was or is made or is threatened to be made a party or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a proceeding), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Company or, while a director or officer of the Company, is or was serving at the request of the Company as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred or suffered by such Covered Person in connection with such proceeding, and such right to indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the preceding sentence, except as otherwise provided in this Article IX, the Company shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof other than a mandatory counterclaim) commenced by such Covered Person only if the commencement of such proceeding (or part thereof other than a mandatory counterclaim) by the Covered Person was authorized in the specific case by the Board. The right to indemnification conferred by this Article IX shall be a contract right that shall fully vest at the time the Covered Person first assumes his or her position as a director or officer of the Company and shall include the right to be paid by the Company the expenses incurred in defending or otherwise participating in any such proceeding in advance of its final disposition.
Section 2. Prepayment of Expenses . The Company shall to the fullest extent not prohibited by applicable law pay the expenses (including, without limitation, attorneys fees) incurred by a Covered Person in defending, testifying, or otherwise participating in any such proceeding in advance of its final disposition; provided , however , that, if the DGCL requires, an advancement of expenses incurred by a Covered Person in his or her capacity as a director or officer of the Company (and not in any other capacity in which service was or is rendered by such Covered Person, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Company of an undertaking, by or on behalf of such Covered Person, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such Covered Person is not entitled to be indemnified for such expenses under this Article IX or otherwise.
Section 3. Claims . If a claim for indemnification (following the final disposition of such proceeding) or advancement of expenses under Section 1 or Section 2 of this Article IX is not paid in full within thirty (30) days after a written claim therefor by the Covered Person has been received by the Company, the Covered Person may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the Covered Person shall also be entitled to be paid the expense
of prosecuting or defending such suit to the fullest extent permitted by law. In (a) any suit brought by the Covered Person to enforce a right to indemnification hereunder (but not in a suit brought by a Covered Person to enforce a right to an advancement of expenses) it shall be a defense that, and (b) in any suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the Company shall be entitled to recover such expenses upon a final adjudication that, the Covered Person has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Company (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Covered Person is proper in the circumstances because the Covered Person has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Company (including a determination by its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the Covered Person has not met such applicable standard of conduct, shall create a presumption that the Covered Person has not met the applicable standard of conduct or, in the case of such a suit brought by the Covered Person, shall be a defense to such suit. In any suit brought by the Covered Person to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Covered Person is not entitled to be indemnified, or to such advancement of expenses, under this Article IX or otherwise shall be on the Company.
Section 4. Nonexclusivity of Rights . The rights conferred on any Covered Person by this Article IX shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of this Restated Certificate of Incorporation, the Bylaws of the Company, agreement, vote of stockholders or disinterested directors or otherwise.
Section 5. Insurance . The Company may purchase and maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Company or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Company would have the power to indemnify such person against such expense, liability or loss under the DGCL.
Section 6. Indemnification of Employees and Agents of the Company . The Company may, to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Company to the fullest extent of the provisions of this Article IX as if such employee or agent were a director or officer of the Company.
Section 7. Other Sources . The Companys obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person collects as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.
Section 8. Amendment or Repeal . Any repeal or amendment of this Article IX, the adoption of any other provision inconsistent with this Article IX, or any change in applicable law
that diminishes or adversely affects the indemnification or advancement of expenses that may be provided under this Article IX shall, except as prohibited by applicable law, be prospective only (except to the extent such amendment or change in applicable law permits the Company to provide broader indemnification rights to Covered Persons on a retroactive basis than permitted prior thereto), and will not in any way diminish or adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
Section 9. Severability . If any provision or provisions of this Article IX shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Article IX shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article IX (including, without limitation, each such portion of this Article IX containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE X
CORPORATE OPPORTUNITIES
The stockholders, their Affiliates and the directors: (a) may have participated, directly or indirectly, and may continue to participate (including, without limitation, in the capacity of investor, manager, officer and employee) in businesses that are similar to or compete with the business (or proposed business) of the Company; (b) may have interests in, participate with, and maintain seats on the board of directors of other such entities; and (c) may develop opportunities for such entities (collectively, the Position). In such Position, the stockholders, their Affiliates and the directors may encounter business opportunities that the Company or its stockholders may desire to pursue. To the fullest extent permitted by Section 122(17) of the DGCL, the stockholders, their Affiliates and the directors and any of their respective officers, directors, agents, stockholders, members, partners, employees, affiliates or subsidiaries shall have no duty to refrain from engaging directly or indirectly in a corporate opportunity in the same or similar activities or line of business as the Company (and all corporations, partnerships, joint ventures, associations and other entities in which the Company beneficially owns directly or indirectly fifty percent (50%) or more of the outstanding voting stock, voting power, partnership interests or similar voting interests (collectively, Related Entities)) engages in or proposes to engage in, and the Company, on behalf of itself and its Related Entities, to the extent permitted by law, renounces any interest or expectancy of the Company and its Related Entities in, or in being offered an opportunity to participate in, business opportunities, that are from time to time presented to any of such persons or entities, even if the opportunity is one that the Company or its Related Entities might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so. In any case where an opportunity is not specifically presented to a stockholder or director for the Companys benefit, to the extent a court might hold that the pursuit of the opportunity for the benefit of a person other than the Company is a breach of a duty to the Company, to the extent permitted by law, such stockholder and the Company hereby waive any and all claims and causes of action that such stockholder and/or the Company believes that it may have for such activities. To the fullest extent permitted by Section 122(17)
of the DGCL, the stockholders, their Affiliates and the directors and any of their respective officers, directors, agents, stockholders, members, partners, employees, affiliates or subsidiaries shall also have no obligation to the Company, the stockholders or to any other Person to present any such business opportunity to the Company before presenting and/or developing such opportunity with any other Persons, other than such opportunities specifically presented to any such stockholder or director for the Companys benefit in his or her capacity as a stockholder or director of the Company. In any case where an opportunity is not specifically presented to a stockholder or director for the Companys benefit, to the extent a court might hold that the pursuit of the opportunity for the benefit of a person other than the Company is a breach of a duty to the Company, to the extent permitted by law, such stockholder and the Company hereby waive any and all claims and causes of action that such stockholder and/or the Company believes that it may have for such activities. To the extent permitted by law, any person purchasing or otherwise acquiring any interest in any shares of stock of the Company shall be deemed to have notice of and consented to the provisions of this Article X. Neither the alteration, amendment or repeal of this Article X nor the adoption of any provision of this Restated Certificate of Incorporation inconsistent with this Article X shall eliminate or reduce the effect of this Article X in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit or claim that, but for this Article X, would accrue or arise, prior to such alteration, amendment, repeal or adoption. For purposes of this Article X, the term Affiliate means any person who is an affiliate as defined in Rule 12b-2 promulgated under the Exchange Act.
ARTICLE XI
The Company is to have perpetual existence.
ARTICLE XII
The Company reserves the right at any time and from time to time to amend or repeal any provision contained in this Restated Certificate of Incorporation (including any Preferred Stock Designation), or to add any new provision to this Restated Certificate of Incorporation in the manner now or hereafter prescribed by this Restated Certificate of Incorporation and the DGCL; and, except as set forth in Article VIII, Article IX and Article X, all rights, preferences and privileges herein conferred upon stockholders, directors or any other persons by and pursuant to this Restated Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article XII; provided , however , that in addition to any other vote of stockholders (if any) required by law and notwithstanding that a lower vote (or no vote) of stockholders would otherwise be required, if any provision of this Restated Certificate of Incorporation other than this Article XII requires a particular vote of stockholders in order to take the action specified in such provision, then such vote of stockholders shall be required in order to alter, amend or repeal, or adopt any provision inconsistent with, such provision of this Restated Certificate of Incorporation.
Notwithstanding any other provisions of this Restated Certificate of Incorporation, and in addition to any other vote required by law, until April 30, 2011, Article VI subsection (a), Article VII Section 2 and Section 3 and this Article XII may not be altered, amended or repealed in any respect (including by merger, consolidation or otherwise), nor may any provision inconsistent therewith be adopted, unless such alteration, amendment, repeal or adoption is approved by the affirmative vote of at least 80% of the total voting power of the outstanding shares entitled to vote generally in the election of directors, voting together as a single class.
IN WITNESS WHEREOF, Six Flags, Inc. has caused this Restated Certificate of Incorporation to be executed by its duly authorized officer on this 30th day of April, 2010.
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SIX FLAGS, INC. |
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By: |
/s/ Mark Shapiro |
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Name: |
Mark Shapiro |
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Office: |
President and Chief Executive Officer |
Exhibit 3.2
SIX FLAGS ENTERTAINMENT CORPORATION
AMENDED AND RESTATED BYLAWS
as
adopted and in
effect on April 30, 2010
TABLE OF CONTENTS
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OFFICES |
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1. |
Registered Office |
1 |
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2. |
Additional Offices |
1 |
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3. |
Books and Records |
1 |
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STOCKHOLDERS MEETINGS |
1 |
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4. |
Time and Place of Meetings |
1 |
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5. |
Annual Meeting |
1 |
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6. |
Special Meetings |
1 |
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7. |
Notice of Meetings |
2 |
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8. |
Inspectors of Election |
2 |
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9. |
Quorum |
3 |
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10. |
Voting; Proxies |
3 |
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11. |
Order of Business |
4 |
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12. |
Notice of Stockholder Business and Nominations |
4 |
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13. |
Action by Written Consent of Stockholders |
7 |
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14. |
List of Stockholders Entitled to Vote |
7 |
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DIRECTORS |
8 |
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15. |
Function |
8 |
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16. |
Vacancies and Newly Created Directorships |
8 |
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17. |
Resignation |
8 |
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18. |
Regular Meetings |
8 |
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19. |
Special Meetings |
8 |
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20. |
Quorum |
9 |
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21. |
Written Action |
9 |
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22. |
Participation in Meetings by Remote Communications |
9 |
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23. |
Committees |
9 |
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24. |
Compensation |
10 |
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25. |
Rules |
10 |
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NOTICES |
10 |
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26. |
Notice to Directors |
10 |
TABLE OF CONTENTS
(continued)
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27. |
Notice to Stockholders |
10 |
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28. |
Electronic Transmission |
11 |
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29. |
Waiver of Notice |
11 |
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30. |
Meeting Attendance via Remote Communication Equipment |
11 |
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OFFICERS |
12 |
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31. |
Generally |
12 |
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32. |
Compensation |
12 |
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33. |
Succession |
12 |
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34. |
Authority and Duties |
12 |
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35. |
Execution of Documents and Action with Respect to Securities of Other Corporations |
12 |
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STOCK |
13 |
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36. |
Certificates |
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37. |
Lost, Stolen or Destroyed Certificates |
13 |
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38. |
Record Dates |
13 |
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GENERAL |
14 |
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39. |
Disbursements |
14 |
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40. |
Fiscal Year |
14 |
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41. |
Seal |
14 |
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42. |
Reliance Upon Books, Reports and Records |
14 |
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43. |
Amendments |
14 |
1. Registered Office . The registered office of the Company within the State of Delaware shall be located at the office of the Company or individual acting as the Companys registered agent in Delaware.
2. Additional Offices . The Company may, in addition to its registered office in the State of Delaware, have such other offices and places of business, both within and outside the State of Delaware, as the Board of Directors of the Company (the Board) may from time to time determine or as the business and affairs of the Company may require.
3. Books and Records . The books and records of the Corporation may be kept outside the State of Delaware at such place or places as may from time to time be designated by the Board of Directors or officers of the Company.
4. Time and Place of Meetings . All meetings of the stockholders for the election of the members (the Directors) of the Board or for any other purpose will be held at such time and place, within or without the State of Delaware, as may be designated by the Board or, in the absence of a designation by the Board, the Chairman of the Board (the Chairman), the Chief Executive Officer, the President or the Secretary, and stated in the notice of meeting, in each case, subject to Bylaws 5 and 6 below. Notwithstanding the foregoing, the Board may, in its sole discretion, determine that meetings of the stockholders shall not be held at any place, but may instead be held by means of remote communications, subject to such guidelines and procedures as the Board may adopt from time to time. The Board may postpone and reschedule any previously scheduled annual or special meeting of the stockholders.
5. Annual Meeting . If required by applicable law, an annual meeting of the stockholders shall be held for the election of Directors at such date, time and place, if any, as may be designated from time to time by the Board or officer calling the annual meeting pursuant to Bylaw 4 (provided, however, that no annual meeting of the stockholders shall be held prior to April 30, 2011 unless otherwise approved by a majority of the Whole Board (as defined below). Any other proper business brought before the meeting in accordance with Bylaws 11 and 12 may be transacted at the annual meeting. Notwithstanding anything to the contrary in these Bylaws, if an annual meeting shall be called to occur on a date prior to April 30, 2011, then the Director selected by the Creditors Committee (as defined in the Plan of Reorganization) pursuant to the Plan of Reorganization (as defined in the Certificate of Incorporation) who is then serving as a Director shall be nominated by the Board and/or a nominating committee of the Board (as applicable) for election as a Director at such annual meeting, subject to the fiduciary duties of the Directors.
6. Special Meetings . Except to the extent expressly permitted by the Restated Certificate of Incorporation of the Company (including any Preferred Stock Designation (as defined in the Restated Certificate of Incorporation)) (as the same may be amended from time to time, the Certificate of Incorporation), special meetings of the stockholders may be called only by (i) the Chairman of the Board (the Chairman), (ii) the Chief Executive Officer of the
Company, (iii) the President of the Company, or (iv) the Secretary of the Company within ten (10) calendar days after receipt of written request of the Board (provided, however, that such request must be made by a majority of the Whole Board (as defined below) if the request is made prior to April 30, 2011 and related to a special meeting of stockholders, one of the purposes of which is to elect or remove directors) or upon the written request of stockholders holding shares representing at least twenty percent (20%) of the voting power of the outstanding shares entitled to vote on the matter for which such meeting is to be called, voting as a single class (provided, however, that such stockholders may only make such request following April 30, 2011 in respect of a special meeting of stockholders, one of the purposes of which is to elect or remove directors). Any such request by stockholders shall state the purpose or purposes of the proposed meeting. Special meetings of holders of the outstanding preferred stock, $1.00 par value per share, of the Company (the Preferred Stock), if any, may be called in the manner and for the purposes provided in the applicable Preferred Stock Designation (as defined in the Certificate of Incorporation) . For the purposes of these Bylaws, Whole Board means the total number of Directors the Company would have if there were no vacancies.
7. Notice of Meetings . Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting of the stockholders shall be given which shall state the place, if any, date and time thereof, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting) and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the Certificate of Incorporation or these Bylaws, the written notice of any meeting shall be given not less than ten (10), nor more than sixty (60), calendar days before the date of the meeting to each stockholder of record entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting. When a meeting is adjourned to another place, date or time, notice need not be given of the adjourned meeting if the place, if any, date and time thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting, are announced at the meeting at which the adjournment is taken; provided , however , that if the adjournment is for more than thirty (30) calendar days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix as the record date for determining stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record as of the record date so fixed for notice of such adjourned meeting. At any adjourned meeting, any business may be transacted which properly could have been transacted at the original meeting.
8. Inspectors of Election . The Company may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the Company, to act at the meeting or any adjournment thereof and to make a written report thereof. The Company may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the Company outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the Company represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the Company represented at the meeting and such inspectors count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the Company, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election. Each report of an inspector shall be in writing and signed by the inspector or by a majority of them if there is more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors.
9. Quorum . Except as otherwise provided by law, the Certificate of Incorporation, or these Bylaws, the holders of a majority in voting power of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, will constitute a quorum at all meetings of the stockholders for the transaction of business thereat. If, however, such quorum is not present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Bylaw 7 until a quorum is present or represented.
10. Voting; Proxies . Except as otherwise provided by law, by the Certificate of Incorporation, or in a Preferred Stock Designation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. Every proxy must be authorized in a manner permitted by Section 212 of the General Corporation Law of the State of Delaware (DGCL) or any successor provision. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the Company a revocation of the proxy or a new later dated proxy. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of Directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the Certificate of Incorporation, these Bylaws, the rules or regulations of any stock exchange applicable to the Company, or applicable law or pursuant to any regulation applicable to the Company or its securities, be decided by the affirmative vote of the holders of a majority
in voting power of the shares of stock of the Company which are present in person or represented by proxy at the meeting and entitled to vote thereon.
11. Order of Business . (a) The Chairman, or such other officer of the Company designated by the Board, will call meetings of the stockholders to order and will act as presiding officer thereof. The Board may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board, the person presiding over any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders entitled to vote at the meeting, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
12. Notice of Stockholder Business and Nominations .
(A) Annual Meetings of Stockholders . (1) Nominations of persons for election to the Board of the Company and the proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders only (a) pursuant to the Companys notice of meeting (or any supplement thereto), (b) by or at the direction of the Board or any committee thereof or (c) by any stockholder of the Company who was a stockholder of record of the Company at the time the notice provided for in this Section 12 is delivered to the Secretary of the Company, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 12.
(2) For any nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of this Section 12, the stockholder must have given timely notice thereof in writing to the Secretary of the Company and any such proposed business (other than the nominations of persons for election to the Board) must constitute a proper matter for stockholder action. To be timely, a stockholders notice shall be delivered to the Secretary at the principal executive offices of the Company not later than the close of business on the ninetieth (90 th ) day, nor earlier than the close of business on the one hundred twentieth (120 th ) day, prior to the first anniversary of the preceding years annual
meeting (provided, however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by the stockholder must be so delivered not earlier than the close of business on the one hundred twentieth (120 th ) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90 th ) day prior to such annual meeting or the tenth (10 th ) day following the day on which public announcement of the date of such meeting is first made by the Company). In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholders notice as described above. Such stockholders notice shall set forth: (a) as to each person whom the stockholder proposes to nominate for election as a Director (i) all information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors in an election contest, or is otherwise required, in each case pursuant to and in accordance with Section 14(a) of the Securities Exchange Act of 1934, as amended (the Exchange Act) and the rules and regulations promulgated thereunder, and (ii) such persons written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (b) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Bylaws of the Company, the language of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Companys books, and of such beneficial owner, (ii) the class or series and number of shares of capital stock of the Company which are owned beneficially and of record by such stockholder and such beneficial owner, (iii) a description of any agreement, arrangement or understanding with respect to the nomination or proposal between or among such stockholder and/or such beneficial owner, any of their respective affiliates or associates, and any others acting in concert with any of the foregoing, including, in the case of a nomination, the nominee, (iv) a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the stockholders notice by, or on behalf of, such stockholder and such beneficial owners, whether or not such instrument or right shall be subject to settlement in underlying shares of capital stock of the Company, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such stockholder or such beneficial owner, with respect to securities of the Company, (v) a representation that the stockholder is a holder of record of stock of the Company entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination, (vi) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends (a) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Companys outstanding capital stock required to approve or adopt the proposal or elect the nominee and/or (b) otherwise to solicit proxies or votes from stockholders in support of such proposal or nomination, and (vii) any other information relating to such stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or other filings required to
be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of Directors in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder. The foregoing notice requirements of this Section 12 shall be deemed satisfied by a stockholder with respect to business other than a nomination if the stockholder has notified the Company of his, her or its intention to present a proposal at an annual meeting in compliance with applicable rules and regulations promulgated under the Exchange Act and such stockholders proposal has been included in a proxy statement that has been prepared by the Company to solicit proxies for such annual meeting. The Company may require any proposed nominee to furnish such other information as the Company may reasonably require to determine the eligibility of such proposed nominee to serve as a Director of the Company.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this Section 12 to the contrary, in the event that the number of Directors to be elected to the Board at the annual meeting is increased effective after the time period for which nominations would otherwise be due under paragraph (A)(2) of this Section 12 and there is no public announcement by the Company naming the nominees for the additional directorships at least one hundred (100) days prior to the first anniversary of the preceding years annual meeting, a stockholders notice required by this Section 12 shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the Company not later than the close of business on the tenth (10 th ) day following the day on which such public announcement is first made by the Company.
(B) General . (1) Except as otherwise expressly provided in any applicable rule or regulation promulgated under the Exchange Act, only such persons who are nominated in accordance with the procedures set forth in this Section 12 shall be eligible to be elected at an annual meeting of stockholders of the Company to serve as Directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 12. Except as otherwise provided by law, the chairman of the meeting shall have the power and duty (a) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 12 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies or votes in support of such stockholders nominee or proposal in compliance with such stockholders representation as required by clause (A)(2)(c)(vi) of this Section 12) and (b) if any proposed nomination or business was not made or proposed in compliance with this Section 12, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of this Section 12, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of stockholders of the Company to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Company. For purposes of this Section 12, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders
and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
(2) For purposes of this Section 12, public announcement shall include disclosure in a press release reported by the Dow Jones News Service, Associated Press or other national news service or in a document publicly filed by the Company with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.
(3) Notwithstanding the foregoing provisions of this Section 12, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in this Section 12; provided however, that any references in these Bylaws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 12 (including paragraphs (A)(1)(c) and (B) hereof), and compliance with paragraphs (A)(1)(c) and (B) of this Section 12 shall be the exclusive means for a stockholder to make nominations or submit other business (other than, as provided in the penultimate sentence of (A)(2), business other than nominations brought properly under and in compliance with Rule 14a-8 of the Exchange Act, as may be amended from time to time). Nothing in this Section 12 shall be deemed to affect any rights (a) of stockholders to request inclusion of proposals or nominations in the Companys proxy statement pursuant to applicable rules and regulations promulgated under the Exchange Act or (b) of the holders of any series of Preferred Stock to elect Directors pursuant to any applicable provisions of the Certificate of Incorporation.
13. Action by Written Consent of Stockholders . Unless otherwise provided by the Certificate of Incorporation, any action required or permitted to be taken by the stockholders of the Company must be effected at a duly held meeting of stockholders of the Company at which a quorum is present or represented and may not be effected by any consent in writing by such stockholders.
14. List of Stockholders Entitled to Vote . The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the Company. If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the
information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Bylaw 14 or to vote in person or by proxy at any meeting of stockholders.
15. Function . The business and affairs of the Company shall be managed by or under the direction of its Board.
16. Vacancies and Newly Created Directorships. Unless otherwise provided by law or the Certificate of Incorporation and subject to the rights, if any, of the holders of any series of Preferred Stock to elect additional Directors under circumstances specified in a Preferred Stock Designation, newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board resulting from death, resignation, disqualification, removal, or other cause shall be filled by a majority vote of the Directors then in office, even if the number of such Directors then in office is less than a quorum, or by a sole remaining Director, if applicable. Any Director elected in accordance with the preceding sentence shall hold office until the expiration of the term of office of the Director whom such Director has replaced or until such Directors successor has been elected and qualified. No decrease in the number of Directors constituting the Board may shorten the term of any incumbent Director.
17. Resignation . Any Director may resign at any time by giving notice in writing or by electronic transmission of his or her resignation to the Chairman, the Chief Executive Officer, the President or the Secretary. Any resignation will be effective when delivered or, if later, as of the date and time specified in such written notice.
18. Regular Meetings . Regular meetings of the Board may be held immediately after the annual meeting of the stockholders or at such other time and place either within or without the State of Delaware as may from time to time be determined by the Board. Notice of regular meetings of the Board need not be given.
19. Special Meetings . Special meetings of the Board (a) may be called by the Chairman or the Chief Executive Officer and (b) will be called by the Chairman, the Chief Executive Officer or Secretary on the written request of at least two (2) Directors then in office, or the sole Director, as the case may be. Special meetings of the Board may be held at such time and place either within or without the State of Delaware as is determined by the Board or specified in the notice of any such meeting or, if called upon the request of Directors or the sole Director, as specified in such written request. Notice of each special meeting of the Board shall be given, as provided in Bylaw 25, to each Director (i) at least twenty-four (24) hours before the meeting if such notice is oral notice given personally or by telephone or written notice given by hand delivery or by facsimile telecommunication or electronic mail or (ii) at least two (2) days before the meeting if such notice is sent by a nationally recognized overnight delivery service for next day delivery. If the Secretary shall fail or refuse to give such notice, then the notice may be given by the officer who called the meeting or the Directors who requested the meeting. Any and all business that may be transacted at a regular meeting of the Board may be transacted at a special meeting. The business to be transacted at, the purpose of, any special meeting shall be
specified in the notice or waiver of notice of such meeting; provided , however , that additional business not specified in such notice may be conducted at such special meeting to the extent that the consideration and inclusion of such additional business at such special meeting is approved by a majority of the Whole Board. A special meeting may be held at any time without notice if all the Directors are present and do not object as provided in Bylaw 28 to the lack of notice or if those not present waive notice of the meeting in accordance with Bylaw 28.
20. Quorum . At all meetings of the Board, the Directors entitled to cast a majority of the votes of the Whole Board shall constitute a quorum for the transaction of business. Except in cases in which the Certificate of Incorporation, these Bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the Directors present at a meeting at which a quorum is present shall be the act of the Board. If a quorum is not present at any meeting of the Board, the Directors present thereat may adjourn the meeting from time to time to another place, time or date, without notice other than announcement at the meeting, until a quorum is present.
21. Written Action . Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board, or any committee thereof, may be taken without a meeting if all members of the Board or any such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes or proceedings of the Board or committee in accordance with applicable law.
22. Participation in Meetings by Remote Communications . Members of the Board or any committee designated by the Board may participate in a meeting of the Board or any such committee, as the case may be, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting pursuant to this Bylaw 22 shall constitute presence in person at the meeting.
23. Committees . (a) The Board may designate one or more committees, each committee to consist of one or more of the Directors of the Company. Any such committee, to the extent permitted by law and to the extent provided in the resolution adopted by the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company.
(b) Each committee of the Board will consist of one or more Directors and will have such lawfully delegable powers and duties as the Board may confer. Any such committee designated by the Board will have such name as may be determined from time to time by resolution adopted by the Board. Unless otherwise prescribed by the Board, a majority of the members of any committee of the Board will constitute a quorum for the transaction of business, and the act of a majority of the members present at a meeting at which there is a quorum will be the act of such committee. Each committee of the Board may prescribe its own rules for calling and holding meetings and its method of procedure, subject to any rules prescribed by the Board, and will keep a written record of all actions taken by it.
(c) The members of each committee of the Board will serve in such capacity at the pleasure of the Board or as may be specified in any resolution from time to time adopted by the Board. The Board may designate one or more Directors as alternate members of any such committee, who may replace any absent or disqualified member at any meeting of such committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in place of any such absent or disqualified member.
24. Compensation . The Board may establish the compensation for, and reimbursement of the expenses of, each Director of the Company for membership on the Board and on committees of the Board, attendance at meetings of the Board or committees of the Board, and for other services by Directors to the Company or any of its majority-owned subsidiaries.
25. Rules . The Board may adopt rules and regulations for the conduct of meetings and the oversight of the management of the affairs of the Company.
26. Notice to Directors . Whenever under applicable law, the Certificate of Incorporation or these Bylaws notice is required to be given to any Director, such notice shall be given either (i) in writing and sent by hand delivery or by a nationally recognized overnight delivery service for next day delivery, (ii) by means of facsimile telecommunication or electronic mail, or (iii) by oral notice given personally or by telephone. A notice to a Director will be deemed given as follows: (i) if given by hand delivery, orally, or by telephone, when actually received by the Director, (ii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the Director at the Directors address appearing on the records of the Company, (iii) if sent by facsimile telecommunication, when sent to the facsimile transmission number for such Director appearing on the records of the Company (after receipt of a send confirmation) or (iv) if sent by electronic mail, when sent to the electronic mail address for such Director appearing on the records of the Company.
27. Notice to Stockholders . Whenever under applicable law, the Certificate of Incorporation or these Bylaws notice is required to be given to any stockholder, such notice may be given (i) in writing and sent either by hand delivery, through the United States mail, or by a nationally recognized overnight delivery service for next day delivery, or (ii) by means of a form of electronic transmission consented to by the stockholder, to the extent permitted by, and subject to the conditions set forth in, Section 232 of the DGCL. A notice to a stockholder shall be deemed given as follows: (i) if given by hand delivery, when actually received by the stockholder, (ii) if sent through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the stockholder at the stockholders address appearing on the stock ledger of the Company, (iii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the stockholder at the stockholders address appearing on the stock ledger of the Company, and (iv) if given by a form of electronic transmission consented to by the
stockholder to whom the notice is given and otherwise meeting the requirements set forth above, (A) if by facsimile transmission, when directed to a number at which the stockholder has consented to receive notice, (B) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice, (C) if by a posting on an electronic network together with separate notice to the stockholder of such specified posting, upon the later of (x) such posting and (y) the giving of such separate notice, and (D) if by any other form of electronic transmission, when directed to the stockholder. A stockholder may revoke such stockholders consent to receiving notice by means of electronic communication by giving written notice of such revocation to the Company. Any such consent shall be deemed revoked if (I) the Company is unable to deliver by electronic transmission two (2) consecutive notices given by the Company in accordance with such consent and (II) such inability becomes known to the Secretary or an Assistant Secretary or to the Companys transfer agent, or other person responsible for the giving of notice; provided , however , the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.
28. Electronic Transmission . Electronic transmission means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process, including but not limited to transmission by telex, facsimile telecommunication, electronic mail, telegram and cablegram.
29. Waiver of Notice . Whenever any notice is required to be given under applicable law, the Certificate of Incorporation, or these Bylaws, a written waiver of such notice, signed before or after the date of such meeting by the person or persons entitled to said notice, or a waiver by electronic transmission by the person entitled to said notice, shall be deemed equivalent to such required notice. All such waivers shall be kept with the books of the Company. Attendance at a meeting shall constitute a waiver of notice of such meeting, except where a person attends for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting was not lawfully called or convened.
30. Meeting Attendance via Remote Communication Equipment . If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication:
(1) participate in a meeting of stockholders; and
(2) be deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (A) the Company shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (B) the Company shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings,
and (C) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such votes or other action shall be maintained by the Company.
31. Generally . The officers of the Company shall be elected by the Board and shall consist of a Chairman, a Chief Executive Officer, a President, a Secretary, a Treasurer and such other officers as the Board may from time to time determine including, but not limited to, any or all of the following: one or more Vice Chairmen, one or more Vice Presidents (who may be given particular designations with respect to authority, function or seniority), one or more Assistant Secretaries, and one or more Assistant Treasurers. Notwithstanding the foregoing, by specific action the Board may authorize the Chairman to appoint any person to any office other than Chairman, Chief Executive Officer, President, Secretary or Treasurer. Any number of offices may be held by the same person. Any of the offices may be left vacant from time to time as the Board may determine. In the case of the absence or disability of any officer of the Company or for any other reason deemed sufficient by the Board, the Board may delegate the absent or disabled officers powers or duties to any other officer or to any Director.
32. Compensation . The compensation of all executive officers of the Company, as well as all officers and agents of the Company, who are also Directors, shall be fixed by the Board or by a committee of the Board. The Board may fix or delegate the power to fix, the compensation of other officers and agents of the Company to an officer of the Company.
33. Succession . Each officer of the Company shall hold office until their successors are elected and qualified, or until his or her earlier death, resignation, disqualification or removal. Any officer may be removed at any time by the affirmative vote of a majority of the Board. Any vacancy occurring in any office of the Company may be filled by the Board as provided in Bylaw 30.
34. Authority and Duties . Each of the officers of the Company shall have such authority and shall perform such duties as are customarily incident to their respective offices or as may be specified from time to time by the Board.
35. Execution of Documents and Action with Respect to Securities of Other Corporations . The Chief Executive Officer shall have, and is hereby given, full power and authority, except as otherwise required by law or directed by the Board or the stockholders of the Company, (i) to execute, on behalf of the Company, all duly authorized contracts, agreements, deeds, conveyances or other obligations of the Company, applications, consents, proxies and other powers of attorney, and other documents and instruments and (ii) to vote and otherwise act on behalf of the Company, in person or by proxy, at any meeting of stockholders (or with respect to any action of such stockholders) of any other corporation in which the Company may hold securities and otherwise to exercise any and all rights and powers which the Company may possess by reason of its ownership of securities of such other corporation. The Chief Executive Officer may delegate to other officers, employees and agents of the Company the power and authority to take any action which the Chief Executive Officer is authorized to take under this Bylaw 35, with such limitations as the Chief Executive Officer may specify; such authority so
delegated by the Chief Executive Officer shall not be re-delegated by the person to whom such execution authority has been delegated.
36. Certificates . The shares of the Company shall be represented by certificates, provided that the Board may provide by resolution or resolutions that some or all of any or all classes or series of stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Company. Every holder of stock represented by certificates shall be entitled to have a certificate signed by or in the name of the Company by the Chairman of the Board or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Company certifying the number of shares owned by such holder in the Company. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Company with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.
37. Lost, Stolen or Destroyed Certificates . The Secretary may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Company alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact, satisfactory to the Secretary, by the person claiming the certificate of stock to be lost, stolen or destroyed. As a condition precedent to the issuance of a new certificate or certificates, the Secretary may require the owners of such lost, stolen or destroyed certificate or certificates to give the Company a bond in such sum and with such surety or sureties as the Secretary may direct as indemnity against any claims that may be made against the Company with respect to the certificate alleged to have been lost, stolen or destroyed or the issuance of the new certificate.
38. Record Dates . (a) In order that the Company may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.
(b) In order that the Company may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not be more than sixty (60) days prior to such other action. If no such record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
(c) The Company will be entitled to treat the person in whose name any share of its stock is registered as the owner thereof for all purposes, and will not be bound to recognize any equitable or other claim to, or interest in, such share on the part of any other person, whether or not the Company has notice thereof, except as expressly provided by applicable law.
39. Disbursements . All checks or demands for money and notes of the Company shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.
40. Fiscal Year . The fiscal year of the Company will end on December 31 of each year or such other date as may be fixed from time to time by the Board.
41. Seal . The Board may adopt a corporate seal and use the same by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.
42. Reliance Upon Books, Reports and Records . Each Director, each member of a committee designated by the Board and each officer of the Company shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any of the Companys officers or employees, or committees of the Board, or by any other person as to matters the Director, committee member or officer believes are within such other persons professional or expert competence and who has been selected with reasonable care by or on behalf of the Company.
43. Amendments . Except as otherwise provided by law or by the Certificate of Incorporation or these Bylaws, these Bylaws may be altered, amended or repealed, and new Bylaws made, by the affirmative vote or written consent of a majority of the Whole Board or the unanimous consent of all members of the Board. Notwithstanding any other provisions of these Bylaws, and in addition to any other vote required by law, until April 30, 2011, Bylaw 5, Bylaw 6 and this Bylaw 43 may not be altered, amended or repealed in any respect, nor may any provision inconsistent therewith be adopted, unless such alteration, amendment, repeal or adoption is approved by the affirmative vote of at least 80% of the total voting power of the outstanding shares entitled to vote generally in the election of directors, voting together as a single class.
Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this Agreement ) is made as of April 30, 2010, by and among Six Flags Entertainment Corporation, a Delaware corporation formerly known as Six Flags , Inc. (the Company ), and each of the other Persons signatory hereto or that executes and delivers a joinder agreement pursuant to Section 10 hereof. Capitalized terms used but not otherwise defined herein are defined in Section 11 hereof.
NOW, THEREFORE , in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
1. Demand and Shelf Registrations .
(a) Demand Registrations . At any time that the Company has not effected or is not diligently pursuing a Shelf Registration pursuant to Section 1(b), after the date that is one hundred and twenty (120) days after the Effective Date, Holder(s) of at least twenty percent (20%) of the Registrable Securities then issued and outstanding (the Initiating Holders ) may request registration under the Securities Act of all or any portion of their Registrable Securities in an Underwritten Offering (an Underwritten Demand Offering ) on (i) Form S-1 or any similar long-form registration statement (a Long-Form Registration ), or, if available, (ii) Form S-3 or any similar short-form registration statement (a Short-Form Registration ) (any registration under this Section 1(a) , a Demand Registration ).
(b) Shelf Registration . The Company shall, as soon as reasonably practicable, but in any event within thirty (30) days following the Effective Date, file a registration statement on any permitted form that qualifies, and is available for, the sale of Registrable Securities, with the Securities and Exchange Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect) (the Shelf Registration ), and shall thereafter, subject to Section 1(c), use its reasonable best efforts to cause such Registration Statement to be declared effective as promptly as practicable. If any Registrable Securities remain issued and outstanding after three (3) years following the initial effective date of such Shelf Registration (the Initial Shelf Effective Date ), the Company shall, prior to the expiration of such Shelf Registration, file a new Shelf Registration covering such Registrable Securities and shall thereafter use its best efforts to cause to be declared effective as promptly as practical, such new Shelf Registration. The Company shall use its reasonable best efforts to convert any Shelf Registration effected as a Long-Form Registration (a Long-Form Shelf ) to a Short-Form Registration (a Short-Form Shelf , and together with any Long-Form Shelf, the Shelf ) as promptly as reasonably practicable after the Company is eligible to use a Short-Form Registration.
(c) Information from Holders . In order to be named as a selling securityholder in the Shelf Registration as of the Initial Shelf Effective Date, each Holder must no later than five (5) Business Days prior to the Initial Shelf Effective Date, which will be at least twenty (20) days following notice by the Company of the expected Initial Shelf Effective Date, furnish to the Company in writing such information in writing as may be reasonably requested by the
Company for the purpose of including such Holders Registrable Securities in the Shelf Registration (the Selling Holder Information ). The Company shall include in the Shelf Registration Selling Holder Information received by the Company at least five (5) Business Days prior to the Initial Shelf Effective Date, to the extent necessary and in a manner so that upon Initial Shelf Effective Date the Holder shall be named as a selling securityholder and be permitted to deliver (or be deemed to deliver) a prospectus relating to the Shelf Registration to purchasers of the Registrable Securities in accordance with applicable law.
From and after the Initial Shelf Effective Date (including with respect to a Shelf that is not the initial Shelf Registration), upon receipt of Selling Holder Information (including any updated Selling Holder Information) that the Company may reasonably request in writing (including any amendments to any prior Selling Holder Information), if any, but in any event within ten (10) Business Days (in the case of a supplement) or within thirty (30) calendar days (in the case of an amendment), as applicable, after the Company receives such requested Selling Holder Information, if any, the Company shall use its reasonable best efforts to file any amendments or supplements, as applicable, to the Shelf Registration or a prospectus relating to the Shelf Registration or the documents incorporated by reference therein necessary for such Holder to be named as a selling securityholder and permit such Holder to deliver (or be deemed to deliver) a prospectus relating to the Shelf Registration to purchasers of the Registrable Securities (subject to the Companys rights during any Delay Period or Suspension Period); provided , however , that the Company shall not be required to file more than one (1) such amendment. Holders that do not deliver Selling Holder Information as provided for in this Section 1(c) shall not be named as selling securityholders in the prospectus relating to the Shelf Registration until such Holder delivers such information. If the Company shall file a post-effective amendment to the Shelf Registration, it shall use reasonable best efforts to cause such post-effective amendment to be declared effective under the Securities Act as promptly as is reasonably practicable and notify such Holder as promptly as is reasonably practicable after the effectiveness under the Securities Act of any post-effective amendment. If such Selling Holder Information is delivered during a Delay Period or Suspension Period, the Company shall so inform the Holder delivering such Selling Holder Information and shall take the actions set forth in this Section 1(c) upon expiration of the Delay Period or Suspension Period, as applicable, as though such Holders Selling Holder Information had been delivered on the expiration date of such Delay Period or Suspension Period.
(d) Demand Notices and Requests for Underwritten Shelf Takedowns . One or more Holders may request (i) pursuant and subject to Section 1(a) and the other terms and conditions hereof, a Demand Registration, or (ii) pursuant and subject to Section 1(b) and the other terms and conditions hereof, to sell all or any portion of their Registrable Securities in an Underwritten Offering that is registered pursuant to the Shelf (an Underwritten Shelf Takedown ). Each such request shall be made by giving written notice (an Underwritten Offering Notice ) to the Company. Each Underwritten Offering Notice shall specify the approximate number of Registrable Securities requested to be registered, in the case of a Demand Registration, or sold, in the case of an Underwritten Shelf Takedown, and the anticipated per share price range for such offering (net of underwriting discounts or commissions). Within ten (10) days after receipt of any Underwritten Offering Notice, the Company shall give written notice of such requested registration or requested Underwritten Shelf Takedown, as applicable, to all other Holders of Registrable Securities and, subject to the provisions of Section 1(g) below, shall include in such
Demand Registration or Underwritten Shelf Takedown, as applicable, all Registrable Securities with respect to which the Company has received written requests for inclusion therein within fifteen (15) days after the receipt of the Companys notice. Following the delivery of an Underwritten Offering Notice in connection with a Demand Registration, the Company shall use its reasonable best efforts to make such filing within forty-five (45) days of receipt of such Underwritten Offering Notice, and use its reasonable best efforts to cause such registration statement to become effective within one hundred and twenty (120) days after receipt of an Underwritten Offering Notice.
(e) Registrations; Takedowns .
(i) A registration shall not count as one of the permitted Demand Registrations until it has become effective, and any Demand Registration shall not count as a Demand Registration unless the Initiating Holder(s) is able to register and sell at least eighty percent (80%) of the Registrable Securities requested to be registered by such Initiating Holder(s) in such Demand Registration; provided that the Company shall in any event pay all Registration Expenses in connection with any registration initiated as a Demand Registration whether or not it has become effective and whether or not such registration has counted as one of the permitted Demand Registrations; provided further that a Demand Registration which is withdrawn at the sole request of the Initiating Holder(s) who demanded such Demand Registration will count as a Demand Registration unless the Company is reimbursed by such Initiating Holder(s) for all reasonable out-of-pocket expenses incurred by the Company in connection with such registration.
(ii) An underwritten sale of Registrable Securities shall not count as one of the permitted Underwritten Shelf Takedowns unless the Holder(s) requesting any such Underwritten Shelf Takedown is able sell at least eighty percent (80%) of the Registrable Securities requested to be sold in such Underwritten Shelf Takedown; provided that an Underwritten Shelf Takedown which is withdrawn at the sole request of such Holder(s) will count as an Underwritten Shelf Takedown unless the Company is reimbursed by such Holder(s) for all reasonable out-of-pocket expenses incurred by the Company in connection with any such Underwritten Shelf Takedown .
(f) Short-Form Registrations . Demand Registrations shall be Short-Form Registrations whenever the Company is permitted to use any applicable short form.
(g) Priority on Demand Registrations and Underwritten Shelf Takedowns . Subject to Section 1(k) , the Company shall not include in any Demand Registration or Underwritten Shelf Takedown any securities which are not Registrable Securities without the prior written consent of the Holder(s) of a majority of the Registrable Securities included in such registration. If any managing underwriter(s) advises the Company in writing that in its opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in an Underwritten Demand Offering or Underwritten Shelf Takedown exceeds the number of Registrable Securities and other securities, if any, which can be sold in an orderly manner in such offering within a price range acceptable to the Holder(s) of a majority of the Registrable Securities requesting such Demand Registration or requesting to be included in the Underwritten Shelf Takedown, as applicable, the Company shall include in such Demand Registration or
Underwritten Shelf Takedown the number which can be so sold in the following order of priority: first , the Registrable Securities requested to be included in such registration, which in the opinion of such underwriter(s) can be sold in an orderly manner within the price range of such offering, pro rata among the respective Holder(s) of such Registrable Securities on the basis of the number of shares of Common Stock owned by each such Holder(s), second , the securities to be sold for the account of the Company, and third , any other securities requested to be included in such registration to the extent permitted hereunder.
(h) Effectiveness Period . The Company shall use commercially reasonable efforts to keep each Registration Statement filed pursuant to this Section 1 continuously effective and usable for the resale of the Registrable Securities covered thereby (i) in the case of a registration that is not a Shelf Registration, for a period of one hundred twenty (120) days from the date on which the SEC declares such Registration Statement effective and (ii) in the case of a Shelf Registration, for a period of three (3) years from the date on which the SEC declares such Registration Statement effective; provided , however , that the time period for which the Company is required to maintain the effectiveness of any Registration Statement relating to a Demand Registration shall be extended by the aggregate number of days of all applicable Delay Periods and Suspension Periods occurring with respect to such registration, and such period and any extension thereof is hereinafter referred to as the Effectiveness Period . Notwithstanding the foregoing, the Company shall have no obligation to keep a Registration Statement effective after the date all securities covered by such Registration Statement have been sold by the Holder and the Effectiveness Period shall end on such date.
(i) Restrictions on Demand Registrations and Underwritten Offerings . Notwithstanding anything contained herein to the contrary, the Company shall not be obligated to:
(i) effect in the aggregate, more than five (5) Underwritten Offerings (whether by Short-Form Registration, Long-Form Registration or Underwritten Shelf Takedown);
(ii) effect in the aggregate, more than five (5) Long-Form Demand Registrations;
(iii) file a registration statement for a Demand Registration within one-hundred eighty (180) days after the effective date of a previous Demand Registration;
(iv) effect an Underwritten Offering prior to August 31, 2010 unless (x) the Companys independent registered public accounting firm agrees to render and does render to the Company and the underwriters for such offering a standard and customary comfort letter in accordance with Auditing Standard AU Section 634 Letters for Underwriters and Certain Other Requesting Parties of the Public Companies Accounting Oversight Board, and (y) such Underwritten Offering is approved be each member of an audit committee of the Company that has at least two members and that all members of such audit committee meet the audit committee independence requirements of the New York Stock Exchange, Inc.
(v) effect an Underwritten Offering within one-hundred eighty (180) days after the later of the closing of (x) an Underwritten Offering pursuant to Section 1 hereof, or (y) a Piggyback Registration in which Holders were able to sell at least 80% of the Registrable Securities requested to be included in such Piggyback Registration; or
(vi) effect a Demand Registration or an Underwritten Shelf Takedown unless the Fair Value of the amount of Registrable Securities to be registered and/or sold by the Holders pursuant to such Demand Registration or Underwritten Shelf Takedown, as applicable, is in excess of $100 million.
(j) Selection of Underwriters . The Holder(s) of a majority of the Registrable Securities included in an Underwritten Demand Offering or an Underwritten Shelf Takedown, as applicable, shall have the right to select the investment banker(s) and manager(s), subject to the Companys approval (such approval not to be unreasonably withheld, conditioned or delayed).
(k) Other Registrations . The Company shall not grant to any Person the right (other than as set forth herein and except to employees and directors of the Company with respect to registrations on Form S-8 and with respect to registrations on Form S-4 (or any successor forms thereto)), to request the Company to register any securities of the Company, except such rights as are (i) not more favorable than or inconsistent with the rights granted to the Holders, and (ii) that do not adversely affect the priorities of the Holders set forth herein.
(l) Limitation . Notwithstanding the foregoing, the Company shall not be obligated to effect, or take action to effect, any Demand Registration or Underwritten Shelf Takedown during the period in which the Board of Directors of the Company determines that in the Boards reasonable judgment and in good faith that the registration and distribution of the Registrable Securities covered or to be covered by such Demand Registration or Underwritten Shelf Takedown, as applicable, would materially interfere with any pending material financing, acquisition or corporate reorganization or other material corporate development involving the Company or any of its subsidiaries or would require premature disclosure thereof, and such disclosure would be materially adverse to the Company , and the Company may, at its option, direct that such request be delayed for a reasonable period of time (a Delay Period ) and the Company shall notify the Holder(s) requesting such Demand Registration or Underwritten Shelf Takedown, as applicable, to such effect; provided , however , that (i) the aggregate number of days included in all Delay Periods during any consecutive twelve (12) months shall not exceed the aggregate of one-hundred twenty (120) days and (ii) a period of at least thirty (30) days shall elapse between the termination of any Delay Period and the commencement of the immediately succeeding Delay Period .
Furthermore, in the event that the Board of Directors of the Company determines that in the Boards reasonable judgment and in good faith it is advisable to suspend for a period of time (a Suspension Period ) the use of a prospectus included in a Registration Statement because the use of such prospectus would materially interfere with any pending material financing, acquisition or corporate reorganization or other material corporate development involving the Company or any of its subsidiaries or would require premature disclosure thereof, and such disclosure would be materially adverse to the Company , the Company shall, in connection with a prospectus relating to an offering that is not underwritten, notify the Holders whose securities are
included in such prospectus and, if the prospectus relates to an underwritten offering, notify the managing underwriter(s), to such effect, and, upon receipt of such notice, such Holders or managing underwriter(s), as applicable, shall immediately discontinue any sales of Registrable Securities pursuant to such Registration Statement until:
(i) such Holders or managing underwriter(s), as applicable, have been advised that the supplemented or amended prospectus has been filed with the SEC on EDGAR and, if required by terms of an underwriting agreement relating to Registrable Securities covered by such Registration Statement, the managing underwriter(s) has received copies of a supplemented or amended prospectus, or
(ii) such Holders and managing underwriter(s), as applicable, are advised in writing by the Company that the then current prospectus may be used and, if required by terms of an underwriting agreement relating to Registrable Securities covered by such Registration Statement, the managing underwriter has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such prospectus.
Notwithstanding anything to the contrary contained herein, the Company shall not exercise its rights under the preceding sentence to suspend sales pursuant to a Suspension Period for a period in excess of forty-five (45) days consecutively or one-hundred twenty (120) days in any twelve (12) month period. In the event of any Delay Period or Suspension Period, the Holder(s) of Registrable Securities initially requesting an Underwritten Demand Offering or Underwritten Shelf Takedown that is delayed or suspended by operation of this Section 1 (l) shall have the right (i) in the case of a delay of the filing or effectiveness of a registration statement in connection with a Demand Registration, upon the affirmative approval of the Holders of not less than a majority of the Registrable Securities initially requesting such Demand Registration, to withdraw such request by giving written notice to the Company within twenty (20) days after receipt of such notice of delay or, if earlier, the termination of such Delay Period, and, if such request is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder, and the Company shall pay all Registration Expenses in connection with such registration, (ii) in the case of a suspension of a prospectus (including the suspension of filing any prospectus supplement) in connection with an Underwritten Shelf Takedown, upon the affirmative approval of the Holders of not less than a majority of the Registrable Securities requesting to be included in such Underwritten Shelf Takedown, to withdraw such request by giving written notice to the Company within twenty (20) days after receipt of such notice of suspension or, if earlier, the termination of such Suspension Period, and, if such request is withdrawn, such Underwritten Shelf Takedown shall not count as one of the permitted Underwritten Shelf Takedowns hereunder and (iii) in the case of a suspension of sales in connection with a Demand Registration, to receive an extension of the registration period equal to the number of days of the Suspension Period. The Company shall not be entitled to initiate or continue a Delay Period or a Suspension Period unless it shall (A) concurrently prohibit sales by all other security holders under registration statements covering securities held by such other security holders and (B) in accordance with the Companys policies from time to time in effect, if applicable, forbid purchases and sales in the open market by executive officers of the Company. The Company shall not be entitled to suspend sales pursuant to a Suspension Period
unless it shall have given notice of the Suspension Period before the commencement of marketing activities in connection with any Underwritten Offering .
2. Piggyback Offerings .
(a) Right to Piggyback . Whenever the Company proposes to register any of its equity securities under the Securities Act (other than pursuant to a Demand Registration and other than pursuant to a registration statement on Form S-8, Form S-4 or any successor forms thereto), or otherwise proposes to offer any of its equity securities under the Securities Act in an Underwritten Offering either for its own account or for the account of one or more securityholders and the Company is eligible to use a registration form for such offering that may be used for the registration of Registrable Securities (a Piggyback Offering ), the Company shall give prompt written notice to all Holders of Registrable Securities of its intention to effect such a registration (which notice shall be given not less than fifteen (15) days prior to the expected filing date of the Companys registration statement; provided , however , that in the case of an Underwritten Offering under a Shelf Registration, such notice shall be given not less than five (5) Business Days prior to the date of commencement of marketing efforts for such offering) and shall, subject to the provisions of Section 2(c) below, include in such Piggyback Offering all Registrable Securities with respect to which the Company has received written requests for inclusion therein within ten (10) days after the receipt of the Companys notice. Notwithstanding anything to the contrary contained herein, the Company may determine not to proceed with a registration which is the subject of such notice. A Piggyback Offering shall not be considered a Demand Registration for purposes of this Agreement and t he rights to Piggyback Offerings may be exercised an unlimited number of occasions.
(b) Piggyback Expenses . The Registration Expenses of the Holders of Registrable Securities shall be paid by the Company in all Piggyback Offerings.
(c) Priority on Registrations .
(i) If a Piggyback Offering is an Underwritten Offering on behalf of the Company, and the managing underwriter(s) advises the Company in writing that in its opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the Company, the Company shall include in such registration the number which can be so sold in the following order of priority: first , the securities to be sold for the account of the Company , second , the Registrable Securities requested to be included in such registration ( pro rata among the Holder(s) of such Registrable Securities on the basis of the number of shares of Common Stock owned by each such Holder ), and third , any other securities requested to be included in such registration.
(ii) If a Piggyback Offering is an Underwritten Offering on behalf of holders of the Companys equity securities who are not Holders of Registrable Securities ( Other Holders ), and the managing underwriter(s) advises the Company in writing that in its opinion the number of equity securities requested to be included in such Piggyback Offering exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the Other Holders, the Company shall include in such
registration the number which can be so sold in the following order of priority: first , the securities requested to be included therein by the Other Holders requesting such registration, second , the Registrable Securities requested to be included in such registration ( pro rata among the Holder(s) of such Registrable Securities on the basis of the number of shares of Common Stock owned by each such Holder ) and third , other securities requested to be included in such registration.
(iii) If, as a result of the proration provisions of this Section 2(c) , any Holder shall not be entitled to include all Registrable Securities in a Piggyback Offering that such Holder has requested be included, such Holder may elect to withdraw its request to include Registrable Securities in such Piggyback Offering or may reduce the number requested to be included; provided , however , that (A) such request must be made in writing prior to commencement of marketing activities in connection with such Piggyback Offering and (B) such withdrawal shall be irrevocable and, after making such withdrawal, such Holder shall no longer have any right to include Registrable Securities in the Piggyback Offering as to which such withdrawal was made.
(d) Selection of Underwriters . If any Piggyback Offering is an Underwritten Offering, the Company will have the right to select the investment banker(s) and manager(s) for the offering.
3. Holdback Agreements .
(a) Holders of Registrable Securities . If requested by the lead managing underwriter, each Holder who beneficially owns (as such term is defined under and determined pursuant to Rule 13d-3 promulgated under the Exchange Act) five percent (5.0%) or more of the issued and outstanding Common Stock of the Company and each Holder including Registrable Securities in any Underwritten Demand Offering, Underwritten Shelf Takedown or Piggyback Offering shall not effect any public sale or distribution (including sales pursuant to Rule 144) of equity securities of the Company, or any securities convertible into or exchangeable or exercisable for such securities, during (i) with respect to any Underwritten Demand Offering, Underwritten Shelf Takedown or Piggyback Offering in which Registrable Securities are included, the seven (7) days prior to and the ninety (90)-day period beginning on the effective date of such registration, and (ii) upon notice from the Company of the commencement of a distribution in connection with any Underwritten Offering (including, but not limited to, any distribution in connection with any Shelf Registration) by or on behalf of the Company, the seven (7) days prior to and the ninety (90)-day period beginning on the date of commencement of such distribution (in the case of (i) and (ii), the Lock-Up Period ), in each case except as part of such Underwritten Offering, and in each case unless the underwriters managing such Underwritten Offering otherwise agree; provided , however , that if any other Holder of Registrable Securities of the Company shall be subject to a shorter period or receives more advantageous terms relating to the Lock-Up Period, then the Lock-Up Period shall be such shorter period and also on such more advantageous terms and notwithstanding the foregoing, the Holders shall not be subject to the provisions hereof unless all of the Companys directors and officers have signed lock-up agreements with the managing underwriters. The restrictions set forth in this Section 3(a) shall not be applicable to Transfers by Holders to Affiliates who agree to be bound by the provisions hereof, Transfers related to securities owned by Holders as a result of open market purchases
made following the closing of the applicable offerings, and other Transfers to which the underwriters managing such Underwritten Offering agree; provided, however, that nothing herein shall prevent a Holder that is a partnership or corporation from making a distribution of Registrable Securities to the partners or shareholders thereof that is otherwise in compliance with applicable securities laws, so long as such distributees agree to be bound by the terms hereof. The provisions of this Section 3(a) will no longer apply to a Holder once such Holder ceases to hold Registrable Securities.
(b) The Company . If requested by the lead managing underwriter, t he Company (i) shall not effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities (except pursuant to registrations on Form S-8, Form S-4 or any successor forms thereto), with respect to any Underwritten Demand Offering, Underwritten Shelf Takedown or any Piggyback Offering that is an Underwritten Offering in which Registrable Securities are included, during the seven (7) days prior to and the ninety (90)-day period beginning on the pricing of such Underwritten Offering, and (ii) shall, to the extent permitted by Regulation FD of the Exchange Act, use its reasonable best efforts to cause each Person who beneficially owns (as such term is defined under and determined pursuant to Rule 13d-3 promulgated under the Exchange Act) five percent (5.0%) or more of the issued and outstanding Common Stock, or any securities convertible into or exchangeable or exercisable for Common Stock, purchased from the Company at any time after the date of this Agreement (other than in a registered public offering or pursuant to Rule 144) to agree not to effect any public sale or distribution (including sales pursuant to Rule 144) of any such securities during such period, in each case except as part of such Underwritten Offering, and in each case unless the underwriters managing the Underwritten Offering otherwise agree.
4. Registration Procedures . Whenever any Holder(s) of Registrable Securities has requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company shall as promptly as practicable:
(a) prepare and file with the Securities and Exchange Commission a registration statement with respect to such Registrable Securities in accordance with the provisions hereof, provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to one counsel selected by the Holders of a majority of the Registrable Securities covered by such registration statement ( Counsel to the Holders ) copies of all such documents proposed to be filed, which documents shall be subject to the prompt review and comment of such Counsel to the Holders;
(b) notify each Holder of Registrable Securities of the effectiveness of each registration statement filed pursuant hereto and prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective during the Effectiveness Period and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition set forth in such registration statement;
(c) furnish to each seller of Registrable Securities, at such sellers request, a copy of such registration statement, each amendment and supplement thereto, and the prospectus included in such registration statement (including each preliminary prospectus); provided , however , that the Company shall have no such obligation to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by the Company;
(d) use its reasonable best efforts (i) to register or qualify such Registrable Securities under such other securities or blue sky laws of any jurisdictions as any underwriter reasonably requests, (ii) to keep such registration or qualification in effect for so long as such registration statement remains in effect, and (iii) to do any and all other acts and things which may be reasonably necessary or advisable to enable any such underwriter to consummate the disposition in such jurisdictions of the Registrable Securities (provided that the Company shall not be required to (x) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process in any such jurisdiction);
(e) notify Counsel to the Holders and each underwriter (i) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, as soon as practicable after (A) discovery that, or after the happening of any event as a result of which, the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances in which they were made, and, at the request of such Holder or any underwriter, the Company shall promptly prepare a supplement or amendment to such prospectus, furnish (or make available) a reasonable number of copies of such supplement or amendment to each seller of such Registrable Securities, Counsel to the Holders and the underwriters and file such supplement or amendment with the Securities and Exchange Commission so that, as thereafter delivered (or deemed to be delivered) to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in light of the circumstances in which they were made, (B) the Company becomes aware of any request by the Securities and Exchange Commission or any Federal or state governmental authority for amendments or supplements to a registration statement or related prospectus covering Registrable Securities or for additional information relating thereto, (C) the Company becomes aware of the issuance or threatened issuance by the Securities and Exchange Commission of any stop order suspending or threatening to suspend the effectiveness of a registration statement covering the Registrable Securities, or (D) the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any Registrable Security for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (ii) as soon as reasonably practicable after each registration statement or any amendment thereto has been filed with the Securities and Exchange Commission and after each registration statement or any post-effective amendment thereto has become effective;
(f) for a reasonable period prior to the filing of any Registration Statement or the commencement of marketing efforts for an Underwritten Shelf Takedown, as applicable, provide any Participating Holder holding more than twenty percent (20%) of all participating Registrable Securities, any underwriter participating in any disposition pursuant to a registration statement, Counsel to the Holders and counsel to the underwriters (each, an Inspector and, collectively,
the Inspectors ), a reasonable opportunity to participate (including, but not limited to, reviewing, commenting on and attending all meetings) in the preparation of such registration statement, each prospectus included therein or filed with the SEC and each amendment or supplement thereto;
(g) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities registered pursuant hereto and a CUSIP number for all such Registrable Securities, in each case, no later than the effective date of such registration;
(h) enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the underwriter(s) reasonably requests in order to expedite or facilitate the disposition of such Registrable Securities;
(i) make available for inspection and copying by the Inspectors all financial and other records, pertinent corporate documents and properties of the Company, and its subsidiaries and cause the officers, directors, employees and independent accountants of the Company and its subsidiaries to respond to such inquiries and to supply all information reasonably requested by any such Inspector in connection with such registration statement, provided that recipients of such financial and other records and pertinent corporate documents agree in writing to keep the confidentiality thereof pursuant to a written agreement reasonably acceptable to the Company (which shall contain customary exceptions thereto);
(j) use reasonable best efforts to (i) prevent the issuance of any stop order by the SEC, and in the event of such issuance, to obtain the withdrawal of any such stop order and (ii) obtain the withdrawal of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction at the earliest practicable date;
(k) otherwise use its best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, obtain all other approvals, consents, exemptions or authorizations from such governmental agencies or authorities as may be necessary and required of the Company to enable the Participating Holders and underwriters to consummate the disposition of Registrable Securities, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Companys first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(l) use reasonable best efforts to timely file all material required to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(m) use reasonable best efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(n) cause appropriate officers as are reasonably requested by an managing underwriter to participate in a road show or similar marketing effort being conducted by such underwriter with respect to an Underwritten Offering;
(o) with respect to an Underwritten Demand Offering or an Underwritten Shelf Takedown, use its reasonable best efforts to obtain and furnish to each Participating Holder a signed counterpart of (i) a cold comfort letter from the Companys independent public accountants addressed to the underwriter(s) and to the Participating Holders ( provided that if such accountants refuse to deliver such letter to the Participating Holders, then to the Company) and (ii) a legal opinion of counsel to the Company addressed to the underwriter(s) and to the Participating Holders, in each case, in customary form and covering such matters of the type customarily covered by such letters as the holders of a majority of the Registrable Securities being sold reasonably request;
(p) (i) prepare and file with the SEC such amendments and supplements to each Registration Statement as may be necessary to comply with the provisions of the Securities Act, including post effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective for the applicable time period required hereunder and if applicable, file any Registration Statements pursuant to Rule 462(b) promulgated under the Securities Act, (ii) cause the related prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and (iii) provide additional information related to each Registration Statement as requested by, and obtain any required approval necessary from, the SEC or any Federal or state governmental authority;
(q) if requested by any Participating Holder or underwriter, promptly include in a prospectus supplement or amendment such information as the Holder or managing underwriters may reasonably request, including in order to permit the intended method of distribution of such securities, and make all required filings of such prospectus supplement or such amendment as soon as reasonably practicable after the Company has received such request;
(r) in the case of certificated Registrable Securities, cooperate with any Participating Holder and the underwriters to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Participating Holder that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the Participating Holders or underwriters may reasonably request at least three (3) Business Days prior to any sale of Registrable Securities;
(s) use reasonable best efforts to assist a Holder in facilitating private sales of Registrable Securities by, among other things, providing officers certificates and other customary closing documents; and
(t) use reasonable best efforts to take all other actions necessary to effect the registration of the Registrable Securities contemplated hereby.
5. Registration Expenses .
(a) Expenses . Except as otherwise provided in this Agreement, all expenses incident to the Companys performance of or compliance with this Agreement, including all registration
and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, fees and disbursements of custodians, and fees and disbursements of counsel for the Company and of all independent certified public accountants, underwriters (excluding discounts and commissions) and other Persons retained by the Company (all such expenses being herein called Registration Expenses ), shall be borne by the Company. For the avoidance of doubt, the Company shall, in any event, pay its internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company may then be listed.
(b) Reimbursement of Counsel . In connection with each Demand Registration, each Underwritten Shelf Takedown and each Piggyback Offering, the Company shall reimburse the Holders of Registrable Securities included in such registration for the reasonable fees and disbursements of Counsel to the Holders.
(c) Payment of Certain Expenses by Holders of Registrable Securities . Underwriting discounts and commissions and transfer taxes relating to the Registrable Securities included in any registration hereunder, and all fees and expenses of counsel for any Holders of Registrable Securities (other than fees and expenses to be reimbursed by the Company as set forth in Section 5(b) above) shall be borne and paid by all sellers of securities included in such registration in proportion to the aggregate selling price of the securities to be so registered.
6. Indemnification; Contribution .
(a) The Company agrees to indemnify, to the extent permitted by applicable law, each Holder of Registrable Securities, its officers, directors, employees, agents and Affiliates and each Person that controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including attorneys fees and expenses, and expenses of investigation), arising out of or resulting from any untrue or alleged untrue statement of material fact contained in any registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto, any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, or violation or alleged violation by the Company of the Securities Act, the Exchange Act, any applicable state securities law (or any rule or regulation promulgated under any applicable state securities law), except insofar as the same are contained in any information furnished in writing to the Company by such Holder expressly for use therein or by such Holders failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto after the Company has furnished such Holder with a sufficient number of copies of the same. In connection with an Underwritten Offering, the Company shall indemnify the underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the Holders of Registrable Securities.
(b) To the extent permitted by applicable law, each Holder shall indemnify the Company, its directors, officers, employees, agents and Affiliates and each Person that controls the Company (within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses (including attorneys fees and expenses, and expenses of investigation) arising out of or resulting from any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by such Holder ; provided that the obligation to indemnify shall be individual, not joint and several, for each Holder and shall be limited to the net amount of proceeds received by such Holder from the sale of Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Persons right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying partys rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would in the reasonable judgment of the indemnified party present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and, based on advice of counsel to the indemnified party, the indemnified party shall have legal defenses available to it and/or other indemnified parties that are inconsistent with or in addition to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after written notice of the institution of such action has been delivered to the indemnifying party; or (iv) the indemnifying party shall have requested the indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise that does not include as an unconditional term thereof the giving by the claimant or plaintiff therein, to such indemnified party, of a release from all liability in respect of such claim or litigation.
(d) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the Transfer of Registrable Securities.
(e) If the indemnification required by this Section 6 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to in this Section 6 :
(i) The 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 fault of the indemnifying party and indemnified parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any violation referred to in this Section 6 has been committed by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such violation. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 6(a) and Section 6(b) , any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6(e) were determined by a pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to in Section 6(e)(i) . No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
7. Holders Obligations .
(a) It shall be a condition precedent to the obligations of the Company to include Registrable Securities of any Holder in any Registration Statement or prospectus, as the case may be, that such Holder shall timely furnish to the Company (as a condition precedent to such Holders participation in such registration) its Selling Holder Information in accordance with the terms hereof. Each Selling Holder shall timely provide the Company with such information as may be reasonably requested to enable the Company to prepare a supplement or post-effective amendment to any Shelf Registration or a supplement to any prospectus relating to such Shelf Registration.
(b) At the managing underwriters request, no Person may participate in any registration hereunder which is underwritten unless such Person (i) agrees to sell such Persons securities on the basis provided in any underwriting arrangements in customary form approved by the Person or Persons entitled hereunder to approve such arrangements and (ii) completes and executes such underwriting agreement and other documents reasonably required in connection with such underwriting arrangements, provided that no Holder of Registrable Securities included in any underwritten registration shall be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding such Holder
(including with respect to such Holders ownership of and title to its Registrable Securities) and such Holders intended method of distribution) or to undertake any indemnification obligations to the Company with respect thereto, except as otherwise provided in Section 6(b) hereof, or to the underwriters with respect thereto, except to the extent of the indemnification being given to the Company and its controlling persons in Section 6(b) hereof.
8. Transfer of Registration Rights .
The rights of a Holder hereunder may be Transferred in connection with a Transfer of Registrable Securities to (i) any Affiliate of a Holder, (ii) any subsidiary, parent, partner, retired partner, limited partner, shareholder or member of a Holder or (iii) any family member or trust for the benefit of any Holder, or (iv) any transferee who, after such transfer, holds Registrable Securities representing at least one percent (1.0%) of the Companys issued and outstanding Common Stock. Notwithstanding the foregoing, such rights may only be Transferred provided that all of the following additional conditions are satisfied: (a) such Transfer is effected in accordance with applicable securities laws; (b) such transferee agrees in writing to become subject to the terms of this Agreement as a Holder; and (c) the Company is given written notice by such Holder of such Transfer, stating the name and address of the transferee and identifying the Registrable Securities with respect to which such rights are being Transferred.
9. Rule 144 and Rule 144A; Other Exemptions
With a view to making available to the Holders of Registrable Securities the benefits of Rule 144 and Rule 144A promulgated under the Securities Act ( Rule 144A ), the Company covenants that it will (i) file in a timely manner all reports and other documents required, if any, to be filed by it under the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder and (ii) make available information necessary to comply with Rule 144 and Rule 144A (if available with respect to resales of the Registrable Securities under the Securities Act), at all times, all to the extent required to enable such Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (x) Rule 144 and Rule 144A (if available with respect to resales of the Registrable Securities), as such rules may be amended from time to time or (y) any other similar rules or regulations hereafter adopted by the SEC. Upon the reasonable request of any Holder of Registrable Securitie s, the Company will deliver to such Holder a written statement as to whether it has complied with such information requirements.
10. Joinder
Any Person who demonstrates that it is a Holder as of the Effective Date (or that it is entitled to become a Holder pursuant to Section 8 hereof) that is not a party hereto may acquire the rights of a Holder hereunder if it agrees in writing to become subject to the terms of this Agreement as a Holder by delivering to the Company a duly executed joinder agreement in form attached hereto as Exhibit A .
11. Definitions .
Affiliate of any Person means any other Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. The term control (including the terms controlling, controlled by and under common control with) as used with respect to any Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
Agreement has the meaning specified in the preamble hereto .
Business Day means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in New York City are generally authorized or obligated by law or executive order to close.
Common Stock means the common stock, par value $0.025 per share, of the Company, having the rights and preferences set forth with respect thereto in the Certificate of Incorporation of the Company.
Company has the meaning specified in the preamble hereto.
Counsel to the Holders has the meaning specified in Section 4 (a) .
Delay Period has the meaning specified in Section 1(l) .
Demand Registration has the meaning specified in Section 1(a) .
Effective Date has the meaning assigned to such term in the Plan.
Effectiveness Period has the meaning specified in Section 1(h) .
Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations promulgated thereunder.
Fair Value means, with respect to shares of Common Stock, as of any specified date (i) if any Common Stock is publicly traded on such date, the market price per share, or (ii) if no Common Stock is publicly traded on such date, the fair market value thereof determined in good faith by the Board of Directors of the Company. For the purposes hereof, market price means as of any specified date the average of the daily market price of the Common Stock for the twenty (20) consecutive Business Days immediately preceding such date. The daily market price for each such Business Day shall be: (a) if the Common Stock is then listed on a national securities exchange, the last sale price on such day on the principal stock exchange on which such Common Stock is then listed or admitted to trading or, if no such sale takes place on such day, the average of the closing bid and ask prices for the Common Stock on such day as reported on such stock exchange or (b) if the Common Stock is not then listed or admitted to trading on any national securities exchange but is traded over the counter, the average of the reported closing bid and ask prices for the Common Stock.
Holder means (i) any Person (including each Person signatory hereto (other than the Company)), who together with its Affiliates, holds Registrable Securities representing at
least one percent (1.0%) of the Companys issued and outstanding Common Stock as of the Effective Date, or (ii) any Person who becomes a signatory hereto pursuant to Section 10.
Initial Shelf Effective Date has the meaning specified in Section 1(b) .
Initiating Holders has the meaning specified in Section 1(a) .
Inspector has the meaning specified in Section 4(f) .
Lock-Up Period has the meaning specified in Section 3(a) .
Long-Form Registration has the meaning specified in Section 1(a) .
Long-Form Shelf has the meaning specified in Section 1(b) .
Other Holders has the meaning specified in Section 2(c)(ii) .
Participating Holders means Holders participating, or electing to participate, in an offering of Registrable Securities.
Person means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.
Piggyback Offering has the meaning specified in Section 2(a) .
Plan means the Debtors Modified Fourth Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code filed on April , 2010 in the United States Bankruptcy Court for the District of Delaware (as the same may be hereafter modified, amended or supplemented).
Registrable Securities means any Common Stock issued on or after the Effective Date to Persons who are parties hereto or become a party hereto, including any Common Stock issued pursuant to the Plan and in the Offering, the Conversion Purchase, the Direct Equity Purchase or the Additional Equity Purchase (each as defined in the Plan), and any Common Stock issued or issuable with respect to any of the foregoing securities by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization, or upon conversion or exercise of any such securities; provided that such securities shall cease to be Registrable Securities when (A) they have been sold pursuant to an effective registration statement, (B) they have been distributed to the public through a broker, dealer or market maker pursuant to Rule 144 or (C) with respect to any Person and such Persons Affiliates, the number of Registrable Securities held by such Persons (x) represents less than five percent (5%) of the outstanding Common Stock of the Company and (y) such securities may be sold under Rule 144(b)(1) . For the purposes of this Agreement, a Person shall be deemed to be a holder of Registrable Securities whenever such Person has the right to acquire such Registrable Securities (upon conversion or exercise in
connection with a Transfer of securities or otherwise, but disregarding any restrictions or limitation upon the exercise of such right), whether or not such acquisition has been effected.
Registration Expenses has the meaning specified in Section 5(a) .
Registration Notice has the meaning specified in Section 1(b) .
Registration Statement means each Demand Registration filed pursuant to Section 1(a) and each Shelf Registration filed pursuant to Section 1(b) .
Rule 144 means Rule 144 promulgated under the Securities Act.
SEC or Securities and Exchange Commission means the United States Securities and Exchange Commission or any successor governmental agency.
Securities Act means the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder.
Selling Holder Information has the meaning specified in Section 1(c).
Shelf has the meaning specified in Section 1(b) .
Shelf Registration has the meaning specified in Section 1(b) .
Short-Form Registration has the meaning specified in Section 1(a) .
Short-Form Shelf has the meaning specified in Section 1(b) .
Suspension Period has the meaning specified in Section 1(l) .
Transfer or Transferred means any direct or indirect sale, assignment, transfer, gift, hypothecation, pledge, encumbrance or other disposition of Registrable Securities, in a single transaction or a series of related transactions, whether with or without consideration, whether voluntarily or involuntarily, or by operation of law.
Underwritten Demand Offering has the meaning specified in Section 1(a) .
Underwritten Offering means an offering in which securities of the Company are sold to one or more underwriter (as defined in Section 2(a)(11) of the Securities Act) in a firm commitment underwritten offering for resale to the public.
Underwritten Offering Notice has the meaning specified in Section 1(d) .
Underwritten Shelf Takedown has the meaning specified in Section 1(d) .
12. Amendment; Waivers; Further Assurances .
(a) Amendment . The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given, without the written consent of the Company and the Holders holding at least fifty percent (50%) of the Registrable Securities then issued and outstanding.
(b) No Waivers . No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
(c) Further Assurances . Each of the parties hereto shall execute all such further instruments and documents and take all such further action as any other party hereto may reasonably require in order to effectuate the terms and purposes of this Agreement.
13. Miscellaneous .
(a) Remedies; Specific Performance . Any Person having rights under any provision of this Agreement shall be entitled to enforce such rights specifically, to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights existing in their favor. The parties hereto agree and acknowledge that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive relief (without posting any bond or other security) in order to enforce or prevent violation of the provisions of this Agreement and shall not be required to prove irreparable injury to such party or that such party does not have an adequate remedy at law with respect to any breach of this Agreement (each of which elements the parties admit). The parties hereto further agree and acknowledge that each and every obligation applicable to it and contained in this Agreement shall be specifically enforceable against it and hereby waives and agrees not to assert any defenses against an action for specific performance of their respective obligations hereunder.
(b) Successors and Assigns . All provisions of this Agreement shall bind and inure to the benefit of the respective successors and permitted assigns of the parties hereto (including any trustee in bankruptcy) whether so expressed or not.
(c) Severability . Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
(d) Counterparts . This Agreement may be executed simultaneously in two or more counterparts, anyone of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Agreement.
(e) Descriptive Headings; Interpretation; No Strict Construction . The descriptive headings of this Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement. Whenever required by the context, any pronoun used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns, pronouns, and verbs shall include the plural and vice versa. Reference to any agreement, document, or instrument means such agreement, document, or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and, if applicable, hereof. The words include, includes or including in this Agreement shall be deemed to be followed by without limitation. The use of the words or, either or any shall not be exclusive. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
(f) Governing Law . The internal laws of the State of Delaware shall govern the enforceability and validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties, without regard to its principles of conflicts of laws that would implicate the substantive or procedural laws of any other jurisdiction.
(g) Jurisdiction . Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in any federal or state court located in the County and State of New York, and each party hereby consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 13(i) shall be deemed effective service of process on such party.
(h) Waiver of Jury Trial . Each of the parties to this Agreement hereby agrees to waive its respective rights to a jury trial of any claim or cause of action based upon or arising out of this Agreement. The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this Agreement, including contract claims, tort claims and all other common law and statutory claims. Each party hereto acknowledges that this waiver is a material inducement to enter into this Agreement, that each has already relied on this waiver in entering into this Agreement, and that each will continue to rely on this waiver in their related future dealings. Each party hereto further warrants and represents that it has reviewed this waiver with its legal counsel and that it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 13(H) AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.
(i) Notices . All notices, requests, consents and other communications required or permitted hereunder shall be in writing and shall be hand delivered or mailed postage prepaid by registered or certified mail or by facsimile transmission (with immediate telephone confirmation thereafter) and, in the case of the Holders, shall also be sent via e-mail,
If to the Company, to:
SIX FLAGS, INC.
1540 Broadway
New York, NY 10036
Attn: James Coughlin
Telephone: (212) 652-9380
Facsimile: (212) 354-3089
with copies to (which copy shall not constitute notice):
PAUL, HASTINGS, JANOFSKY & WALKER LLP
191 North Wacker Drive, 30th Floor
Chicago, Illinois 60606
Telephone: (312) 499-6000
Facsimile: (312) 499-6100
Attn: Paul E. Harner
Steven T. Catlett
and
PAUL, HASTINGS, JANOFSKY & WALKER LLP
75 East 55th Street
New York, New York 10022
Telephone: (212) 318-6000
Facsimile: (212) 319-4090
Attn: William F. Schwitter
Luke P. Iovine, III
If to the Holders to the address set forth in Exhibit B and if to any transferee of any Holder, to the address of such transferee set forth in the Transfer documentation provided to the Company, in each case with copies to (which copies shall not constitute notice) their respective counsel at the address set forth in Exhibit B , or at such other address as such party each may specify by written notice to the others, and each such notice, request, consent and other communication shall for all purposes of the Agreement be treated as being effective or having been given when delivered personally, upon one Business Day after being deposited with a courier if delivered by courier, upon receipt of facsimile confirmation (if transmitted during the normal business hours of the recipient, otherwise such notice shall be deemed to be effective or have been given on the next Business Day), or, if sent by mail, at the earlier of its receipt or seventy two (72) hours after the same has been deposited in a regularly maintained receptacle for the deposit of United States mail, addressed and postage prepaid as aforesaid.
(j) Delivery by Facsimile . This Agreement, the agreements referred to herein, and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall reexecute original forms thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine as a defense to the formation or enforceability of a contract and each such party forever waives any such defense.
(k) Entire Agreement . This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes and replaces all other prior agreements, written or oral, among the parties hereto with respect to the subject matter hereof.
(l) Termination . This Agreement may be terminated at any time by a written instrument signed by all parties hereto. Unless sooner terminated in accordance with the preceding sentence, this Agreement (other than Section 6 hereof) shall terminate in its entirety on such date as there shall be no Registrable Securities issued and outstanding.
(m) No Third Party Beneficiaries . Nothing herein expressed or implied is intended to confer upon any Person, other than the parties hereto or their respective permitted assigns and successors any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as set forth in Section 6 hereof.
(n) Sophisticated Parties; Advice of Counsel . Each of the parties to this Agreement specifically acknowledges that (i) it is a knowledgeable, informed, sophisticated Person capable of understanding and evaluating the provisions set forth in this Agreement and (ii) it has been fully advised and represented by legal counsel of its own independent selection and has relied wholly upon its independent judgment and the advice of such counsel in negotiating and entering into this Agreement.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, this Agreement has been duly executed by each of the parties hereto as of the date first above written.
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SIX FLAGS ENTERTAINMENT
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By: |
/s/ James Coughlin |
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Name: James Coughlin |
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Title: General Counsel |
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Stark Master Fund Ltd. |
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By: Stark Offshore Management
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By: |
/s/ Donald T. Bobbs |
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Name: Donald T. Bobbs |
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Title: Authorized Signatory |
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Stark Criterion Master Fund Ltd. |
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By: Stark Criterion Management
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By: |
/s/ Donald T. Bobbs |
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Name: Donald T. Bobbs |
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Title: Authorized Signatory |
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Kivu Investment Fund Limited |
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By: |
/s/ Marc Nitsch |
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Name: Marc Nitsch |
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Title: Director |
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CQS Convertible and
Quantitative
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By: |
/s/ Kevin Jones |
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Name: Kevin Jones |
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Title: Authorised Signatory |
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CQS Directional Opportunities
Master
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By: |
/s/ Kevin Jones |
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Name: Kevin Jones |
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Title: Authorised Signatory |
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Credit Suisse Securities (USA) LLC |
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By: |
/s/ Christopher S. Campbell |
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Name: Christopher S. Campbell |
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Title: Director |
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Credit Suisse Candlewood
Special Situations
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By: |
/s/ Michael Lau |
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Name: Michael Lau |
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Title: Authorized Signatory |
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Capital Ventures International |
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By: Susquehanna Advisors
Group, Inc., its
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By: |
/s/ Joel Greenberg |
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Name: Joel Greenberg |
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Title: Vice President |
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Mariner Tricadia Credit
Strategies Master Fund
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By: Tricadia Capital
Management, LLC, as
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By: |
/s/ Barry Monday |
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Name: Barry Monday |
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Title: Chief Administrative Officer |
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Tricadia Distressed and Special
Situations
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By: Tricadia Capital
Management, LLC, as
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By: |
/s/ Barry Monday |
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Name: Barry Monday |
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Title: Chief Administrative Officer |
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Structured Credit Opportunities Fund II, LP |
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By: Tricadia Capital
Management, LLC, as
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By: |
/s/ Barry Monday |
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Name: Barry Monday |
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Title: Chief Administrative Officer |
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1798 Relative Value Master Fund, Ltd. |
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By: |
/s/ Gary Lehrman |
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Name: Gary Lehrman |
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Title: PM |
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Altai Capital Master Fund, Ltd. |
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By: Altai Capital Management,
L.P., its
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By: |
/s/ Toby E. Symonds |
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Name: Toby E. Symonds |
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Title: Managing Principal |
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H Partners Management LLC |
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By: |
/s/ Lloyd Blumberg |
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Name: Lloyd Blumberg |
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Title: Authorized Signatory |
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H Offshore Fund, Ltd. |
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By: H Partners Management LLC,
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By: |
/s/ Lloyd Blumberg |
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Name: Lloyd Blumberg |
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Title: Authorized Signatory |
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BHR Master Fund, Ltd. |
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By: |
/s/ Michael Thompson |
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Name: Michael Thompson |
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Title: MD |
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BHCO Master, Ltd. |
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By: |
/s/ Michael Thompson |
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Name: Michael Thompson |
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Title: MD |
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Eternity Ltd. |
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By: |
/s/ Michael Thompson |
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Name: Michael Thompson |
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Title: MD |
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Pentwater Growth Fund Ltd. |
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By: Pentwater Capital Management LP, its investment manager |
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By: |
/s/ Neil Nenadovic |
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Name: Neil Nenadovic |
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Title: Chief Financial Officer |
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Pentwater Equity Opportunities Master Fund
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By: Pentwater Capital Management LP, its
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By: |
/s/ Neil Nenadovic |
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Name: Neil Nenadovic |
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Title: Chief Financial Officer |
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Oceana Master Fund Ltd. |
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By: Pentwater Capital Management LP, its investment manager |
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By: |
/s/ Neil Nenadovic |
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Name: Neil Nenadovic |
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Title: Chief Financial Officer |
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LMA SPC on behalf of MAP 98 Segregated
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By: Pentwater Capital Management LP, its
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By: |
/s/ Neil Nenadovic |
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Name: Neil Nenadovic |
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Title: Chief Financial Officer |
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Fortelus Capital Management LLP |
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Title: |
Exhibit A
Form of Joinder Agreement
Attention: President
Ladies and Gentlemen:
Reference is made to the Registration Rights Agreement, dated as of , 2010 (as such agreement may have been or may be amended from time to time) (the Registration Rights Agreement ), by and among Six Flags , Inc., a Delaware corporation (the Company ), each of the other parties signatory thereto and any other parties identified on the signature pages of any joinder agreements substantially similar to this joinder agreement executed and delivered pursuant to Section 10 of the Registration Rights Agreement . Capitalized terms used but not otherwise defined herein have the meanings set forth in the Registration Rights Agreement.
In consideration of the transfer to the undersigned of Registrable Securities of the Company, the undersigned represents that it is a transferee of [insert name of transferor] and agrees that, as of the date written below, the undersigned shall become a party to the Registration Rights Agreement, and shall be fully bound by, and subject to, all of the covenants, terms and conditions of the Registration Rights Agreement as though an original party thereto.
[SIGNATURE PAGE FOLLOWS]
Executed as of the day of , .
TRANSFEREE: [insert name of transferee]
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Title: |
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Address:
Acknowledged and agreed by:
SIX FLAGS ENTERTAINMENT CORPORATION
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Name: |
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Title: President |
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Exhibit 10.1
SIX FLAGS ENTERTAINMENT CORPORATION
LONG-TERM INCENTIVE PLAN
1. Introduction .
(a) Purpose. Six Flags Entertainment Corporation, a Delaware corporation (the Company) hereby establishes this equity-based incentive compensation plan to be known as the Six Flags Entertainment Corporation Long-Term Incentive Plan ( the Plan), for the following purposes: (i) to enhance the Companys ability to attract highly qualified personnel; (ii) to strengthen its retention capabilities; (iii) to enhance the long-term performance and competitiveness of the Company ; and (iv) to align the interests of Plan participants with those of the Companys shareholders.
(b) Effective Date. This Plan shall become effective on the effective date of the Companys Modified Fourth Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (Plan of Reorganization), dated as of April 1, 2010, as the same may be further amended or modified (Effective Date) .
(c) Definitions . Terms in the Plan and any Appendix that begin with an initial capital letter have the defined meaning set forth in Appendix I or elsewhere in this Plan, in either case unless the context of their use clearly indicates a different meaning.
(d) Effect on Other Plans, Awards, and Arrangements . This Plan is not intended to affect and shall not affect any stock options, equity-based compensation, or other benefits that the Company or its Affiliates may have provided, or may separately provide in the future, pursuant to any agreement, plan, or program that is independent of this Plan.
(e) Appendices . Incorporated by reference and thereby part of the Plan are the terms set forth in the following appendices:
Appendix I |
Definitions |
2. Types of Awards . The Plan permits the granting of the following types of Awards according to the Sections of the Plan listed here:
Section 5 |
Stock Options |
Section 6 |
Share Appreciation Rights (SARs) |
Section 7 |
Restricted Shares, Restricted Share Units (RSUs), and Unrestricted Shares |
Section 8 |
Deferred Share Units (DSUs) |
Section 9 |
Performance and Cash-settled Awards |
Section 10 |
Dividend Equivalent Rights |
3. Shares Available for Awards .
(a) Generally , subject to Section 13 below, a total of 4,833,333 Shares shall be available for issuance under the Plan as of the Effective Date, and if and to the extent the Delayed Draw
Equity Purchase (as defined in the Plan of Reorganization) is consummated, up to 149,956 additional Shares shall be available for issuance under the Plan. At least one-third of the total Shares available for issuance under the Plan shall be subject to grants of Restricted Shares or Restricted Share Units and the remainder of the Shares available for issuance under the Plan shall be subject to Awards other than Restricted Shares or Restricted Share Units. The Shares deliverable pursuant to Awards shall be authorized but unissued Shares, or Shares that the Company otherwise holds in treasury or in trust.
(b) Replenishment; Counting of Shares. Any Shares reserved for Plan Awards will again be available for future Awards if the Shares for any reason will never be issued to a Participant or Beneficiary pursuant to an Award (for example, due to its settlement in cash rather than in Shares, or the Awards forfeiture, cancellation, expiration, or net settlement without the issuance of Shares). Further, and to the extent permitted under Applicable Law, the maximum number of Shares available for delivery under the Plan shall not be reduced by any Shares issued under the Plan through the settlement, assumption, or substitution of outstanding awards or obligations to grant future awards as a condition of the Companys or an Affiliates acquiring another entity. On the other hand, Shares that a Person owns and tenders in payment of all or part of the exercise price of an Award or in satisfaction of applicable Withholding Taxes shall not increase the number of Shares available for future issuance under the Plan. Awards settled in cash will not count against the maximum number of Shares issuable under the Plan.
(c) ISO Share Reserve. T he number of Shares that are available for ISO Awards shall not exceed 3,000,000 Shares (as adjusted pursuant to Section 13 of the Plan, and as determined in accordance with Code Section 422).
4. Eligibility .
(a) General Rule . Subject to the express provisions of the Plan, the Committee shall determine from the class of Eligible Persons those Persons to whom Awards may be granted. Each Award shall be evidenced by an Award Agreement that sets forth its Grant Date and all other terms and conditions of the Award, that is signed on behalf of the Company (or delivered by an authorized agent through an electronic medium), and that, if required by the Committee, is signed by the Eligible Person as an acceptance of the Award . The grant of an Award shall not obligate the Company or any Affiliate to continue the employment or service of any Eligible Person, or to provide any future Awards or other remuneration at any time thereafter.
(b) Option and SAR Limits per Person. During the term of the Plan, no Participant may receive Options and SARs that relate to more than 50% of the maximum number of Shares issuable under the Plan as of its Effective Date, as such number may be adjusted pursuant to Section 13(a) below.
(c) Replacement Awards . Subject to Applicable Law (including any associated shareholder approval requirements), the Committee may, in its sole discretion and upon such terms as it deems appropriate, require as a condition of the grant of an Award to a Participant that the Participant, with the Participants consent, surrender for cancellation some or all of the Awards or other grants that the Participant has received under this Plan or otherwise. An Award conditioned upon such surrender may or may not be the same type of Award, may cover the same (or a lesser or greater) number of Shares as such surrendered Award, may have other terms that are determined without
regard to the terms or conditions of such surrendered Award, and may contain any other terms that the Committee deems appropriate. However, neither the Company nor the Committee shall, without shareholder approval, either (a) allow for a repricing within the meaning of federal securities laws applicable to proxy statement disclosures, or (b) cancel an outstanding Option or SAR whose exercise price is greater than Fair Market Value at the time of cancellation for the purpose of reissuing the Option or SAR to the Participant at a lower exercise price or granting a replacement award of a different type .
5. Stock Options .
(a) Grants. Subject to the special rules for ISOs set forth in the next paragraph, the Committee may grant Options to Eligible Persons pursuant to Award Agreements setting forth terms and conditions that are not inconsistent with the Plan, that may be immediately exercisable or that may become exercisable in whole or in part based on future events or conditions, that may include vesting or other requirements for the right to exercise the Option, and that may differ for any reason between Eligible Persons or classes of Eligible Persons, provided in all instances that:
(i) the exercise price for Shares subject to purchase through exercise of an Option shall not be less than 100% of the Fair Market Value of the underlying Shares on the Grant Date; and
(ii) no Option shall be exercisable for a term ending more than ten years after its Grant Date.
(b) Special ISO Provisions . The following provisions shall control any grants of Options that are denominated as ISOs.
(i) Eligibility . The Committee may grant ISOs only to Employees (including officers who are Employees) of the Company or an Affiliate that is a parent corporation or subsidiary corporation within the meaning of Code Section 424.
(ii) Documentation . Each Option that is intended to be an ISO must be designated in the Award Agreement as an ISO, provided that any Option designated as an ISO will be a Non-ISO to the extent the Option fails to meet the requirements of Code Section 422. In the case of an ISO, the Committee shall determine on the Date of Grant the acceptable methods of paying the exercise price for Shares, and it shall be included in the applicable Award Agreement.
(iii) $100,000 Limit . To the extent that the aggregate Fair Market Value of Shares with respect to which ISOs first become exercisable by a Participant in any calendar year (under this Plan and any other plan of the Company or any Affiliate) exceeds U.S. $100,000, such excess Options shall be treated as Non-ISOs. For purposes of determining whether the U.S. $100,000 limit is exceeded, the Fair Market Value of the Shares subject to an ISO shall be determined as of the Grant Date. In reducing the number of Options treated as ISOs to meet the U.S. $100,000 limit, the most recently granted
Options shall be reduced first. In the event that Code Section 422 is amended to alter the limitation set forth therein, the limitation of this paragraph shall be automatically adjusted accordingly.
(iv) Grants to 10% Holders . In the case of an ISO granted to an Employee who is a Ten Percent Holder on the Grant Date, the ISOs term shall not exceed five years from the Grant Date, and the exercise price shall be at least 110% of the Fair Market Value of the underlying Shares on the Grant Date. In the event that Code Section 422 is amended to alter the limitations set forth therein, the limitation of this paragraph shall be automatically adjusted accordingly.
(v) Substitution of Options . In the event the Company or an Affiliate acquires (whether by purchase, merger, or otherwise) all or substantially all of outstanding capital stock or assets of another corporation or in the event of any reorganization or other transaction qualifying under Code Section 424, the Committee may, in accordance with the provisions of that Section, substitute ISOs for ISOs previously granted under the plan of the acquired company provided (A) the excess of the aggregate Fair Market Value of the Shares subject to an ISO immediately after the substitution over the aggregate exercise price of such shares is not more than the similar excess immediately before such substitution, and (B) the new ISO does not give additional benefits to the Participant, including any extension of the exercise period.
(vi) Notice of Disqualifying Dispositions . By executing an ISO Award Agreement, each Participant agrees to notify the Company in writing immediately after the Participant sells, transfers or otherwise disposes of any Shares acquired through exercise of the ISO, if such disposition occurs within the earlier of (A) two years of the Grant Date, or (B) one year after the exercise of the ISO being exercised. Each Participant further agrees to provide any information about a disposition of Shares as may be requested by the Company to assist it in complying with any applicable tax laws.
(c) Method of Exercise. Each Option may be exercised, in whole or in part ( provided that the Company shall not be required to issue fractional shares) at any time and from time to time prior to its expiration, but only pursuant to the terms of the applicable Award Agreement, and subject to the times, circumstances and conditions for exercise contained in the applicable Award Agreement. Exercise shall occur by delivery of both written notice of exercise to the secretary of the Company, and payment of the full exercise price for the Shares being purchased. The methods of payment that the Committee may in its discretion accept or commit to accept in an Award Agreement include:
(i) cash or check payable to the Company (in U.S. dollars);
(ii) other Shares that (A) are owned by the Participant who is purchasing Shares pursuant to an Option, (B) have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which the Option is being exercised, (C) are all, at
the time of such surrender, free and clear of any and all claims, pledges, liens and encumbrances, or any restrictions which would in any manner restrict the transfer of such shares to or by the Company (other than such restrictions as may have existed prior to an issuance of such Shares by the Company to such Participant), and (D) are duly endorsed for transfer to the Company;
(iii) a net exercise by surrendering to the Company Shares otherwise receivable upon exercise of the Option ;
(iv) a cashless exercise program, pursuant to which a Participant may elect to concurrently provide irrevocable instructions (A) to such Participants broker or dealer to effect the immediate sale of the purchased Shares and remit to the Company, out of the sale proceeds available on the settlement date, sufficient funds to cover the exercise price of the Option plus all applicable taxes required to be withheld by the Company by reason of such exercise, and (B) to the Company to deliver the certificates for the purchased Shares directly to such broker or dealer in order to complete the sale; or
(v) any combination of the foregoing methods of payment.
The Company shall not be required to deliver Shares pursuant to the exercise of an Option until the Company has received sufficient funds to cover the full exercise price due and all applicable Withholding Taxes required by reason of such exercise.
Notwithstanding any other provision of the Plan to the contrary, no Participant who is a Director or an executive officer of the Company within the meaning of Section 13(k) of the Exchange Act shall be permitted to make payment with respect to any Awards granted under the Plan, or continue any extension of credit with respect to such payment with a loan from the Company or a loan arranged by the Company in violation of Section 13(k) of the Exchange Act.
(d) Exercise of an Unvested Option . The Committee in its sole discretion may allow a Participant to exercise an unvested Option, in which case the Shares then issued shall be Restricted Shares having analogous vesting restrictions to the unvested Option.
(e) Termination of Continuous Service . The Committee may establish and set forth in the applicable Award Agreement the terms and conditions on which an Option shall remain exercisable, if at all, following termination of a Participants Continuous Service. The Committee may waive or modify these provisions at any time. To the extent that a Participant is not entitled to exercise an Option at the date of his or her termination of Continuous Service, or if the Participant (or other person entitled to exercise the Option) does not exercise the Option to the extent so entitled within the time specified in the Award Agreement or below (as applicable), the Option shall terminate and the Shares underlying the unexercised portion of the Option shall revert to the Plan and become available for future Awards.
The following provisions shall apply to the extent an Award Agreement does not specify the terms and conditions upon which an Option shall terminate when there is a termination of a Participants Continuous Service:
Reason for terminating Continuous Service |
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Option Termination Date |
(I) By the Company for Cause, or what would have been Cause if the Company had known all of the relevant facts. |
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Termination of the Participants Continuous Service, or when Cause first existed if earlier. |
(II) Disability of the Participant. |
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Within one year after termination of the Participants Continuous Service. |
(III) Retirement of the Participant after age 60 with five years or more of Continuous Service. |
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Within one year after termination of the Participants Continuous Service. |
(IV) Death of the Participant during Continuous Service or within 90 days thereafter. |
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Within one year after termination of the Participants Continuous Service. |
(V) Other than due to Cause or the Participants Disability, Retirement, or Death. |
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Within 90 days after termination of the Participants Continuous Service. |
If there is a Securities and Exchange Commission blackout period (or a Committee-imposed blackout period) that prohibits the buying or selling of Shares during any part of the ten day period before the expiration of any Option based on the termination of a Participants Continuous Service (as described above), the period for exercising the Options shall be extended until ten days beyond when such blackout period ends. Notwithstanding any provision hereof or within an Award Agreement, no Option shall ever be exercisable after the expiration date of its original term as set forth in the Award Agreement.
6. SARs .
(a) Grants. The Committee may grant SARs to Eligible Persons pursuant to Award Agreements setting forth terms and conditions that are not inconsistent with the Plan; provided that:
(i) the exercise price for the Shares subject to each SAR shall not be less than 100%of the Fair Market Value of the underlying Shares on the Grant Date;
(ii) no SAR shall be exercisable for a term ending more than ten years after its Grant Date; and
(iii) each SAR shall, except to the extent an SAR Award Agreement provides otherwise, be subject to the provisions of Section 5(e) relating to the effect of a termination of Participants Continuous Service with SAR being substituted for Option.
(b) Settlement. Subject to the Plans terms, an SAR shall entitle the Participant, upon exercise of the SAR, to receive Shares having a Fair Market Value on the date of exercise equal to the product of the number of Share as to which the SAR is being exercised, and the excess of (i) the Fair Market Value, on such date, of the Shares covered by the exercised SAR, over (ii) an exercise price designated in the SAR Award Agreement. Notwithstanding the foregoing, an SAR Award Agreement may limit the total settlement value that the Participant will be entitled to receive upon the SARs exercise, and may provide for settlement either in cash or in any combination of cash or
Shares that the Committee may authorize pursuant to an Award Agreement. If, on the date on which an SAR or portion thereof is to expire, the Fair Market Value exceeds the per Share exercise price of such SAR, then the SAR shall be deemed exercised and the Participant will be entitled to receive the settlement proceeds otherwise payable had the Participant affirmatively exercised the SAR on that date.
(c) SARs related to Options . The Committee may grant SARs either concurrently with the grant of an Option or with respect to an outstanding Option, in which case the SAR shall extend to all or a portion of the Shares covered by the related Option, and shall have an exercise price that is not less than the exercise price of the related Option. An SAR shall entitle the Participant who holds the related Option, upon exercise of the SAR and surrender of the related Option, or portion thereof, to the extent the SAR and related Option each were previously unexercised, to receive payment of an amount determined pursuant to Section 6(b) above. Any SAR granted in tandem with an ISO will contain such terms as may be required to comply with the provisions of Code Section 422.
(d) Effect on Available Shares. At each time of a exercise of an SAR that is settled in Shares, only those Shares that are issued or delivered in settlement of the exercise shall be counted against the number of Shares available for Awards under the Plan; provided that the number of Shares that are issued or delivered pursuant to the exercise of an SAR shall not exceed the number of Shares specified in the Award Agreement as being subject to the SAR Award.
7. Restricted Shares, RSUs, and Unrestricted Share Awards .
(a) Grant. The Committee may grant Restricted Share, RSU, or Unrestricted Share Awards to Eligible Persons, in all cases pursuant to Award Agreements setting forth terms and conditions that are not inconsistent with the Plan. The Committee shall establish as to each Restricted Share or RSU Award the number of Shares deliverable or subject to the Award (which number may be determined by a written formula), and the period or periods of time (the Restriction Period ) at the end of which all or some restrictions specified in the Award Agreement shall lapse, and the Participant shall receive unrestricted Shares (or cash to the extent provided in the Award Agreement) in settlement of the Award. Such restrictions may include, without limitation, restrictions concerning voting rights and transferability, and such restrictions may lapse separately or in combination at such times and pursuant to such circumstances or based on such criteria as selected by the Committee, including, without limitation, criteria based on the Participants duration of employment, directorship or consultancy with the Company, individual, group, or divisional performance criteria, Company performance, or other criteria selection by the Committee. The Committee may make Restricted Share and RSU Awards with or without the requirement for payment of cash or other consideration. In addition, the Committee may grant Awards hereunder in the form of Unrestricted Shares which shall vest in full upon the Grant Date or such other date as the Committee may determine or which the Committee may issue pursuant to any program under which one or more Eligible Persons (selected by the Committee in its sole discretion) elect to pay for such Shares or to receive Unrestricted Shares in lieu of cash bonuses that would otherwise be paid.
(b) Vesting and Forfeiture. The Committee shall set forth, in an Award Agreement granting Restricted Shares or RSUs, the terms and conditions under which the Participants interest in the Restricted Shares or the Shares subject to RSUs will become vested and non-forfeitable.
Except as set forth in the applicable Award Agreement or as the Committee otherwise determines, upon termination of a Participants Continuous Service for any reason, the Participant shall forfeit his or her Restricted Shares and RSUs to the extent the Participants interest therein has not vested on or before such termination date; provided that if a Participant purchases Restricted Shares and forfeits them for any reason, the Company shall return the purchase price to the Participant to the extent either set forth in an Award Agreement or required by Applicable Laws.
(c) Certificates for Restricted Shares. Unless otherwise provided in an Award Agreement, the Company shall hold certificates representing Restricted Shares and dividends (whether in Shares or cash) that accrue with respect to them until the restrictions lapse, and the Participant shall provide the Company with appropriate stock powers endorsed in blank. The Participants failure to provide such stock powers within ten days after a written request from the Company shall entitle the Committee to unilaterally declare a forfeiture of all or some of the Participants Restricted Shares.
(d) Section 83(b) Elections . A Participant may make an election under Code Section 83(b) (the Section 83(b) Election ) with respect to Restricted Shares. A Participant who has received RSUs may, within ten days after receiving the RSU Award, provide the Committee with a written notice of his or her desire to make Section 83(b) Election with respect to the Shares subject to such RSUs. The Committee may in its discretion convert the Participants RSUs into Restricted Shares, on a one-for-one basis, in full satisfaction of the Participants RSU Award. The Participant may then make a Section 83(b) Election with respect to those Restricted Shares; provided that the Participants Section 83(b) Election will be invalid if not filed with the Company and the appropriate U.S. tax authorities within 30 days after the Grant Date of the RSUs replaced by the Restricted Shares.
(e) Deferral Elections for RSUs . To the extent specifically provided in an Award Agreement, a Participant may irrevocably elect, in accordance with Section 8 below, to defer the receipt of all or a percentage of the Shares that would otherwise be transferred to the Participant upon the vesting of an RSU Award provided the election is made on or before the 30th day following the Grant Date of the RSU Award and at least 12 months in advance of the earliest date the RSU Award could vest. If the Participant makes this election, the Company shall credit the Shares subject to the election, and any associated Shares attributable to Dividend Equivalent Rights attached to the Award, to a DSU account established pursuant to Section 8 below on the date such Shares would otherwise have been delivered to the Participant pursuant to this Section.
(f) Issuance of Shares upon Vesting . As soon as practicable after vesting of a Participants Restricted Shares (or of the right to receive Shares underlying RSUs), the Company shall deliver to the Participant, free from vesting restrictions, one Share for each surrendered and vested Restricted Share (or deliver one Share free of the vesting restriction for each vested RSU), unless an Award Agreement provides otherwise and subject to Section 11 regarding Withholding Taxes. No fractional Shares shall be distributed, and cash shall be paid in lieu thereof.
8. DSUs .
(a) Elections to Defer . The Committee may make DSU awards to Eligible Persons who are Directors, Consultants, or members of a select group of management or highly compensated Employees (within the meaning of ERISA) pursuant to Award Agreements (regardless of whether or not there is a deferral of the Eligible Persons compensation), and may permit select Eligible
Persons to irrevocably elect, on a form provided by and acceptable to the Committee (the Election Form ), to forego the receipt of cash or other compensation (including the Shares deliverable pursuant to any RSU Award) and in lieu thereof to have the Company credit to an internal Plan account a number of DSUs having a Fair Market Value equal to the Shares and other compensation deferred. These credits will be made at the end of each calendar quarter (or other period determined by the Committee) during which compensation is deferred. In general, subject to Section 7(e) regarding deferral of Restricted Shares and Restricted Share Units and to Section 9(e) regarding deferral of Performance Awards, Election Forms must be submitted to the Committee no later than December 31st of the calendar year preceding the calendar year in which the Eligible Person first performs the services that are attributable to the compensation being deferred. Notwithstanding the foregoing, any Eligible Person who first becomes eligible to defer compensation under the Plan and is not eligible to defer or otherwise accrue an amount of deferred compensation under any other plan or arrangement that (i) is maintained by the Company or any other Affiliate that would be considered a single employer with the Company pursuant to Code Sections 414(b) or 414(c) and (ii) constitutes a single plan under Treasury Regulation §1.409A-1(c)(2)(A), may submit his or her Election Form to the Committee no later than 30 days after the date the Eligible Person first becomes eligible to defer compensation under the Plan; however, the Election Form may relate only to compensation that is to be paid for services performed after the date the Election Form is submitted to the Committee. The Committee may reject any Election Form that it determines in its sole discretion does not satisfy the requirements of this paragraph. The Committee may unilaterally make Awards in the form of Deferred Share Units, regardless of whether or not the Participant foregoes other compensation.
(b) Vesting . Unless an Award Agreement expressly provides otherwise, each Participant shall be 100% vested at all times in any Shares subject to DSUs.
(c) Issuances of Shares . Unless an Award Agreement expressly provides otherwise, the Company shall settle a Participants DSU Award, by delivering one Share for each DSU, in five substantially equal annual installments that are issued before the last day of each of the five calendar years that end after the date on which the Participant incurs a separation from service within the meaning of Treasury Regulations §1.409A-1(h) and as further described in Section 8(e) hereof (Separation from Service), subject to
(i) the Participants right to elect a different form of distribution, only on a form provided by and acceptable to the Committee, that permits the Participant to select any combination of a lump sum and annual installments that are triggered by, and completed within ten years following, the last day of the Participants Separation from Service, and
(ii) the Companys acceptance of the Participants distribution election form executed at the time the Participant elects to defer the receipt of cash or other compensation pursuant to Section 8(a), provided that the Participant may change a distribution election through any subsequent election that (A) the Participant delivers to the Company at least one year before the date on which distributions are otherwise scheduled to commence pursuant to the Participants initial distribution election, and (B) defers the commencement of distributions by at least five years from the originally scheduled distribution commencement date.
Fractional shares shall not be issued, and instead shall be paid out in cash
Notwithstanding anything in this Plan or an Award Agreement to the contrary, if, at the time of the Participants Separation from Service, the Participant is a specified employee (within the meaning of Section 409A of the Code and Treasury Regulation Section 1.409A-1(i)), the Company will not pay or provide any Specified Benefits (as defined herein) during the six-month period beginning after the date of the Participants Separation from Service (the 409A Suspension Period). In the event of a Participants death, however, the Specified Benefits shall be paid to the Participants Beneficiary without regard to the 409A Suspension Period. For purposes of this Plan, Specified Benefits are any portion of the Participants DSU Award that would be subject to Section 409A additional taxes if the Company were to pay it on account of the Participants Separation from Service. Within 14 calendar days after the end of the 409A Suspension Period, the Participant shall be paid a lump-sum payment equal to any Specified Benefits delayed during the 409A Suspension Period.
(d) Emergency Withdrawals . In the event that a Participant suffers an unforeseeable emergency within the contemplation of this Section, the Participant may apply to the Committee for an immediate distribution of all or a portion of the Participants DSUs. The unforeseeable emergency must result from a sudden and unexpected illness or accident of the Participant, the Participants spouse, or a dependent (within the meaning of Code Section 152) of the Participant, casualty loss of the Participants property, or other similar extraordinary and unforeseeable conditions beyond the control of the Participant. The Committee shall, in its sole and absolute discretion, determine whether a Participant has a qualifying unforeseeable emergency, may require independent verification of the emergency, and may determine whether or not to provide the Participant with cash or Shares. Examples of purposes which are not considered unforeseeable emergencies include post-secondary school expenses or the desire to purchase a residence. In no event will a distribution be made to the extent the unforeseeable emergency could be relieved through reimbursement or compensation by insurance or otherwise, or by liquidation of the Participants nonessential assets to the extent such liquidation would not itself cause a severe financial hardship. The amount of any distribution hereunder shall be limited to the amount necessary to relieve the Participants unforeseeable emergency plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution. The number of Shares subject to the Participants DSU Award shall be reduced by any Shares distributed to the Participant and by a number of Shares having a Fair Market Value on the date of the distribution equal to any cash paid to the Participant pursuant to this Section. For all DSUs granted to Participants who are U.S. taxpayers, the term unforeseeable emergency shall be interpreted in accordance with Code Section 409A.
(e) Separation from Service . For purposes of this Section 8, a Participant incurs a Separation from Service when the Participant ceases to perform services for the Company and any entity that would be considered a single employer with the Company under Code section 414(b) or 414(c) (but modified by substituting 50 percent for 80 percent each place it appears in Code section 1563(a)(1), (2) and (3), for purposes of Code section 414(b), and each plan it appears in Treas. Reg. § 1.414(c)-2, for purposes of Code section 414(c)) (collectively Employer) for any reason. A Separation from Service will be deemed to occur if the Employer and the Participant reasonably anticipate that the Participant shall perform no further services (whether as an employee or an independent contractor) or that the level of bona fide services the Participant will perform in the future (whether as an employee or an independent contractor) will permanently decrease to no more than 20 percent of the average level of bona fide services performed (whether as an employee or independent contractor) over the immediately preceding 36-month period. A Participant on an
authorized, bona fide leave of absence shall experience a Separation from Service on the first day of the seventh (7th) month of such leave, unless the Participants right to reemployment with an Employer is provided either by statute or contract. A leave of absence constitutes a bona fide leave of absence only if there is a reasonable expectation that the Participant will return to perform services for the Employer. For purposes of the 36-month period described above, (a) a Participant who is on a paid bona fide leave of absence is treated as providing bona fide services at a level of equal to the level of services that the Participant would have been required to perform to receive the compensation paid during the leave of absence, and (b) unpaid bona fide leaves of absence are disregarded.
9. Performance and Cash-Settled Awards .
(a) Performance Units . Subject to the limitations set forth in paragraph (b) hereof, the Committee may in its discretion grant Performance Awards, including Performance Units to any Eligible Person, including Performance Unit Awards that (i) have substantially the same financial benefits and other terms and conditions as Options, SARs, RSUs, or DSUs, but (ii) are settled only in cash. All Awards hereunder shall be made pursuant to Award Agreements setting forth terms and conditions that are not inconsistent with the Plan.
(b) Performance Compensation Awards . Subject to the limitations set forth in this Section, the Committee may, at the time of grant of a Performance Unit, designate such Award as a Performance Compensation Award (payable in cash or Shares) in order that such Award constitutes, and has terms and conditions that are designed to qualify as, qualified performance-based compensation under Code Section 162(m). With respect to each such Performance Compensation Award, the Committee shall establish, in writing within the time required under Code Section 162(m), a Performance Period , Performance Measure(s) , and Performance Formula(e) (each such term being defined below). Once established for a Performance Period, the Performance Measure(s) and Performance Formula(e) shall not be amended or otherwise modified to the extent such amendment or modification would cause the compensation payable pursuant to the Award to fail to constitute qualified performance-based compensation under Code Section 162(m).
A Participant shall be eligible to receive payment in respect of a Performance Compensation Award only to the extent that the Performance Measure(s) for such Award is achieved and the Performance Formula(e) as applied against such Performance Measure(s) determines that all or some portion of such Participants Award has been earned for the Performance Period. As soon as practicable after the close of each Performance Period, the Committee shall review and certify in writing whether, and to what extent, the Performance Measure(s) for the Performance Period have been achieved and, if so, determine and certify in writing the amount of the Performance Compensation Award to be paid to the Participant and, in so doing, may use negative discretion to decrease, but not increase, the amount of the Award otherwise payable to the Participant based upon such performance
(c) Limitations on Awards . The maximum Performance Award and the maximum Performance Compensation Award that any one Participant may receive for any one Performance Period, without regard to time of vesting or exercisability, shall not together exceed 750,000 Shares, as adjusted pursuant to Section 13 below (or, for Performance Units to be settled in cash, U.S. $5,000,000). Any amounts earned in excess of these limitations, if any, will be deferred until the first
taxable year in which the Committee reasonably anticipates that the Companys tax deduction for such amounts will not be disallowed under Code Section 162(m).
(d) Definitions .
(i) Performance Formula means, for a Performance Period, one or more objective formulas or standards established by the Committee for purposes of determining whether or the extent to which an Award has been earned based on the level of performance attained or to be attained with respect to one or more Performance Measure(s). Performance Formulae may vary from Performance Period to Performance Period and from Participant to Participant and may be established on a stand-alone basis, in tandem or in the alternative.
(ii) Performance Measure means one or more of the following selected by the Committee to measure the performance of the individual Participant, the Company or of an Affiliate or a division, department, park, region or function of the Company or any Affiliate in which the Participant is employed for a Performance Period, whether in absolute or relative terms (including, without limitation, terms relative to a peer group or index): basic, diluted, or adjusted earnings per share; sales or revenue; earnings before interest, taxes, and other adjustments (in total or on a per share basis); basic or adjusted net income; returns on equity, assets, capital, revenue or similar measure; economic value added; working capital; total shareholder return; expenses, cash flow, margin, attendance, and product development, product market share, licensing, mergers, acquisitions, sales of assets of Affiliates or business units. Each such measure shall be, to the extent applicable, determined in accordance with generally accepted accounting principles as consistently applied by the Company (or such other standard applied by the Committee) and, if so determined by the Committee, and in the case of a Performance Compensation Award, to the extent permitted under Code Section 162(m), adjusted to omit the effects of extraordinary items, gain or loss on the disposal of a business segment, unusual or infrequently occurring events and transactions and cumulative effects of changes in accounting principles, or other events or circumstances that render the Performance Measures unsuitable. Performance Measures may vary from Performance Period to Performance Period and from Participant to Participant, and may be established on a stand-alone basis, in tandem or in the alternative.
(iii) Performance Period means one or more periods of time (of not less than one fiscal year of the Company), as the Committee may designate, over which the attainment of one or more Performance Measure(s) will be measured for the purpose of determining a Participants rights in respect of an Award.
(e) Deferral Elections . At any time prior to the date that is both at least six months before the close of a Performance Period with respect to a Performance Award and at which time vesting or payment is substantially uncertain to occur, the Committee may permit a Participant who is a member of a select group of management or highly compensated employees (within the meaning of ERISA) to irrevocably elect, on a form provided by and acceptable to the Committee, to defer the receipt of all or a percentage of the cash or Shares that would otherwise be transferred to the Participant upon the vesting of such Award. If the Participant makes this election, the cash or
Shares subject to the election, and any associated interest and dividends, shall be credited to an account established pursuant to Section 8 hereof on the date such cash or Shares would otherwise have been released or issued to the Participant pursuant to this Section.
10. Dividend Equivalent Rights . The Committee may grant Dividend Equivalent Rights to any Eligible Person, and may do either pursuant to an Award Agreement that is independent of any other Award, or through a provision in another Award (other than an Option or SAR) that Dividend Equivalent Rights attach to the Shares underlying the Award. For example, and without limitation, the Committee may grant a Dividend Equivalent Right in respect of each Share subject to a Restricted Stock Award, Restricted Stock Unit Award, Deferred Stock Unit, or Performance Share Award.
(a) Nature of Right . Each Dividend Equivalent Right shall represent the right to receive amounts based on the dividends declared on Shares as of all dividend payment dates during the term of the Dividend Equivalent Right as determined by the Committee. Unless otherwise determined by the Committee, a Dividend Equivalent Right shall expire upon termination of the Participants Continuous Service, provided that a Dividend Equivalent Right that is granted as part of another Award shall expire only when the Award is settled or otherwise forfeited.
(b) Settlement . Unless otherwise provided in an Award Agreement, Dividend Equivalent Rights shall be paid out on the (i) on the date dividends are paid to the Companys shareholders if the Award occurs on a stand-alone basis, and (ii) on the vesting or later settlement date for another Award if the Dividend Equivalent Right is granted as part of it. Payment of all amounts determined in accordance with this Section shall be in Shares, with cash paid in lieu of fractional Shares, provided that the Committee may instead provide in an Award Agreement for cash settlement of all or part of the Dividend Equivalent Rights. Only the Shares actually issued pursuant to Dividend Equivalent Rights shall count against the limits set forth in Section 3 above.
(c) Other Terns . The Committee may impose such other terms and conditions on the grant of a Dividend Equivalent Right as it deems appropriate in its discretion as reflected by the terms of the Award Agreement. The Committee may establish a program under which Dividend Equivalent Rights may be granted in conjunction with other Awards. The Committee may also authorize, for any Participant or group of Participants, a program under which the payments with respect to Dividend Equivalent Rights may be deferred pursuant to the terms and conditions determined under Section 9 above.
11. Taxes; Withholding .
(a) General Rule. Participants are solely responsible and liable for the satisfaction of all taxes and penalties that may arise in connection with Awards including without limitation any taxes or penalties arising under Code Section 409A, and neither the Company, any Affiliate, nor any of their employees, directors, or agents shall have any obligation to mitigate, indemnify, or to otherwise hold any Participant harmless from any or all of such taxes. The Companys obligation to deliver Shares (or to pay cash) to Participants pursuant to Awards is at all times subject to their prior or coincident satisfaction of all required Withholding Taxes. Except to the extent otherwise either provided in an Award Agreement or thereafter authorized by the Committee, the Company or any Affiliate will satisfy required Withholding Taxes that the Participant has not otherwise arranged to settle before the due date thereof
(i) first from withholding the cash otherwise payable to the Participant pursuant to the Award;
(ii) then by withholding and cancelling the Participants rights with respect to a number of Shares that (A) would otherwise have been delivered to the Participant pursuant to the Award, and (B) have an aggregate Fair Market Value equal to the Withholding Taxes (such withheld Shares to be valued on the basis of the aggregate Fair Market Value thereof on the date of the withholding); and
(iii) finally, withholding the cash otherwise payable to the Participant by the Company.
The number of Shares withheld and cancelled to pay a Participants Withholding Taxes will be rounded up to the nearest whole Share sufficient to satisfy such taxes, with cash being paid to the Participant in an amount equal to the amount by which the Fair Market Value of such Shares exceeds the Withholding Taxes.
(b) U.S. Code Section 409A. To the extent that the Committee determines that any Award granted under the Plan is subject to Code Section 409A, the Award Agreement evidencing such Award shall incorporate the terms and conditions required by Code Section 409A. To the extent applicable, the Plan and Award Agreements shall be interpreted in accordance with Code Section 409A and Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the Effective Date. Notwithstanding any provision of the Plan to the contrary, the Committee may adopt such amendments to the Plan and the applicable Award Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Administrator determines are necessary or appropriate (i) to exempt the Award from Code Section 409A and/or preserve the intended tax treatment of the benefits provided with respect to the Award, or (ii) to comply with the requirements of Code Section 409A and related Department of Treasury guidance and thereby avoid the application of any penalty taxes under such Section.
(b) U.S. Code Section 280G . If any accelerated vesting, benefits or payments received or realized by a Participant pursuant to an Award either alone or together with other accelerated
vesting, benefits or payments that the Participant receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates would constitute an excess parachute payment within the meaning of Section 280G of the Code, the accelerated vesting, benefits or payments provided to the Participant under the Award will be reduced by reducing the amount of accelerated vesting, benefits or payments payable to the Participant to the extent necessary so that no portion of the Participants accelerated vesting, benefits or payments will be subject to the excise tax imposed by Section 4999 of the Code and any corresponding and/or applicable state law provision. Notwithstanding the foregoing, a reduction will be made under the previous sentence only if, by reason of that reduction, the Participants net after tax benefit exceeds the net after tax benefit he or she would realize if the reduction were not made. For purposes of this paragraph, net after tax benefit means the sum of (i) the total amount received or realized by the Participant pursuant to the Award that would constitute a parachute payment within the meaning of Section 280G of the Code, plus (ii) all other accelerated vesting, payments or benefits that the Participant receives or realizes or is then entitled to receive or realize from the Company and any of its affiliates that would constitute a parachute payment within the meaning of Section 280G of the Code and any corresponding and applicable state law provision, less (iii) the amount of federal and state income taxes payable with respect to the payments or benefits described in (i) and (ii) above calculated at the maximum marginal individual income tax rate for each year in which payments or benefits are realized by the Participant (based upon the rate in effect for that year as set forth in the Code at the time of the first receipt or realization of the foregoing), less (iv) the amount of excise taxes imposed with respect to the payments or benefits described in (i) and (ii) above by Section 4999 of the Code and any corresponding and applicable state law provision.
(d) Unfunded Tax Status . The Plan is intended to be an unfunded plan for incentive compensation. With respect to any payments not yet made to a Person pursuant to an Award, nothing contained in the Plan or any Award Agreement shall give the Person any rights that are greater than those of a general creditor of the Company or any Affiliate, and a Participants rights under the Plan at all times constitute an unsecured claim against the general assets of the Company for the collection of benefits as they come due. Neither the Participant nor the Participants duly-authorized transferee or Beneficiaries shall have any claim against or rights in any specific assets, Shares, or other funds of the Company.
12. Non-Transferability of Awards .
(a) General. Except as set forth in this Section, or as otherwise approved by the Committee, Awards may not be sold, pledged, assigned, hypothecated, transferred or disposed of in any manner other than by will or by the laws of descent or distribution. The designation of a death Beneficiary by a Participant will not constitute a transfer. An Award may be exercised, during the lifetime of the holder of an Award, only by such holder, by the duly-authorized legal representative of a holder who is Disabled, or by a transferee permitted by this Section.
(b) Limited Transferability Rights. The Committee may in its discretion provide in an Award Agreement that an Award in the form of a Non-ISO, Share-settled SAR, Restricted Shares, or Performance Shares may be transferred to a Permitted Transferee (as defined below), subject to the following terms and conditions and such other terms and conditions as the Committee may provide in the Award Agreement: (i) an Award transferred to a Permitted Transferee shall not be assignable or transferable by the Permitted Transferee other than by will or the laws of descent and distribution; (ii) an Award transferred to a Permitted Transferee shall continue to be subject to all
the terms and conditions of the Award as applicable to the Participant (other than the ability to further transfer the Award); and (iii) the Participant and the Permitted Transferee shall execute any and all documents requested by the Committee, including, without limitation documents to (A) confirm the status of the transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption for the transfer under applicable federal, state and foreign securities laws, (C) satisfy any tax withholding and reporting requirements associated with the Award and (D) evidence the transfer. For purposes of this Section 12(b), Permitted Transferee shall mean, with respect to a Participant, any family member of the Participant, as defined under the instructions to use of the Form S-8 Registration Statement under the Securities Act, or any other transferee specifically approved by the Committee after taking into account any state, federal, local or foreign tax and securities laws applicable to transferable Awards.
(c) Death . In the event of the death of a Participant, any outstanding Awards issued to the Participant shall automatically be transferred to the Participants Beneficiary (or, if no Beneficiary is designated or surviving, to the person or persons to whom the Participants rights under the Award pass by will or the laws of descent and distribution).
13. Change in Capital Structure; Change in Control; Etc .
(a) Changes in Capitalization. The Committee shall equitably adjust the number of Shares covered by each outstanding Award, and the number of Shares that have been authorized for issuance under the Plan but as to which no Awards have yet been granted or that have been returned to the Plan upon cancellation, forfeiture, or expiration of an Award, as well as the exercise or other price per Share covered by each such outstanding Award, to reflect any increase or decrease in the number of issued Shares resulting from a stock-split, reverse stock-split, stock dividend, combination, recapitalization or reclassification of the Shares, merger, consolidation, change in form of organization, or any other increase or decrease in the number of issued Shares effected without receipt of consideration by the Company. In the event of any such transaction or event, the Committee may (and shall if the Company is not the surviving entity or the Shares are otherwise no longer outstanding) provide in substitution for any or all outstanding Awards under the Plan such alternative consideration (including cash or securities of any surviving entity) as it may in good faith determine to be equitable under the circumstances and may require in connection therewith the surrender of all Awards so replaced. In any case, such substitution of cash or securities shall not require the consent of any person who is granted Awards pursuant to the Plan. Except as expressly provided herein, or in an Award Agreement, if the Company issues for consideration shares of stock of any class or securities convertible into shares of stock of any class, the issuance shall not affect, and no adjustment by reason thereof shall be required to be made with respect to the number or price of Shares subject to any Award.
(b) Dissolution or Liquidation . In the event of the dissolution or liquidation of the Company other than as part of a Change of Control, each Award will terminate immediately prior to the consummation of such dissolution or liquidation, subject to the ability of the Committee to exercise any discretion authorized in the case of a Change in Control.
(c) Change in Control. In the event of a Change in Control but subject to the terms of any Award Agreements or employment-related agreements between the Company or any Affiliates and any Participant, each outstanding Award shall be assumed or a substantially equivalent award shall be substituted by the surviving or successor company or a parent or subsidiary of such successor
company (in each case, the Successor Company ) upon consummation of the transaction. Notwithstanding the foregoing, instead of having outstanding Awards be assumed or replaced with equivalent awards by the Successor Company, the Committee may in its sole and absolute discretion and authority (and where so stated shall), without obtaining the approval or consent of the Companys shareholders or any Participant with respect to his or her outstanding Awards, take one or more of the following actions (with respect to any or all of the Awards, and with discretion to differentiate between individual Participants and Awards for any reason):
(i) (A) to the extent required pursuant to the terms of an employment agreement between the Company and a Participant that was in effect on or as of the Effective Date, or (B) if an Award is not assumed or substituted by the Successor Company or the stock or securities to be subject to any Award that would be so assumed or substituted is not publicly traded on an established securities market (excluding any transaction where the Successor Company is a subsidiary of a parent corporation whose shares or securities are publicly traded on an established securities market and the assumed or substituted Awards are subject to such shares or securities in the parent corporation), the Committee may (and shall with respect to Awards granted pursuant to any employment agreement that was filed in connection with the Plan of Reorganization) accelerate the vesting of such Awards so that Awards shall fully vest (and, to the extent applicable, become fully exercisable) immediately prior to consummation of the Change in Control (or, if earlier and applicable, a record date necessary for the Companys shareholders of record to receive the consideration payable in connection with the Change in Control) as to the Shares that otherwise would have been unvested and provide that repurchase rights of the Company with respect to Shares issued pursuant to an Award shall lapse as to the Shares subject to such repurchase right;
(ii) arrange or otherwise provide for the payment of cash or other consideration to Participants in exchange for the satisfaction and cancellation of outstanding vested Awards (with the Committee determining the amount payable to each Participant based on the fair market value, on the date of the Change in Control, of the Award being cancelled, based on any reasonable valuation method selected by the Committee and, if the consideration payable to the Company or its shareholders in connection with the Change in Control is all cash, vested Options and SARs that have a per Share exercise price greater than the Fair Market Value per Share immediately prior to the consummation of the Change in Control may be cancelled for zero consideration);
(iii) except as forth in clause (i) of Section 13(c), terminate all or some unvested Awards upon the consummation of the transaction. To the extent that an Award is not exercised prior to consummation of a transaction in which the Award is not being assumed or substituted, such Award shall terminate upon such consummation;
(iv) make such other modifications, adjustments or amendments to outstanding Awards or this Plan as the Committee deems necessary or appropriate, subject however to the terms of Section 13 above.
Notwithstanding the above and unless provided otherwise in an Award Agreement or in an employment agreement with the Participant, in the event a Participant is Involuntarily Terminated on or within 12 months (or other period set forth in an Award Agreement) following a Change in
Control, then any Award that is assumed or substituted pursuant to this Section above shall accelerate and become fully vested (and become exercisable in full in the case of Options and SARs), and any repurchase right applicable to any Shares shall lapse in full. The acceleration of vesting and lapse of repurchase rights provided for in the previous sentence shall occur immediately prior to the effective date of the Participants Involuntary Termination, unless an Award Agreement provides otherwise.
14. Termination, Rescission and Recapture of Awards .
(a) Each Award under the Plan is intended to align the Participants long-term interests with those of the Company. Accordingly, the Company may terminate any outstanding, unexercised, unexpired, unpaid, or deferred Awards ( Termination ), rescind any exercise, payment or delivery pursuant to the Award ( Rescission ), or recapture any Shares (whether restricted or unrestricted) or proceeds from the Participants sale of Shares issued pursuant to the Award ( Recapture ), if the Participant does not comply with the conditions of subsections (b), (c), and (e) hereof (collectively, the Conditions ).
(b) A Participant shall not, without the Companys prior written authorization, disclose to anyone outside the Company, or use in other than the Companys business, any proprietary or confidential information or material, as those or other similar terms are used in any applicable patent, confidentiality, inventions, secrecy, or other agreement between the Participant and the Company with regard to any such proprietary or confidential information or material.
(c) Pursuant to any agreement between the Participant and the Company with regard to intellectual property (including but not limited to patents, trademarks, copyrights, trade secrets, inventions, developments, improvements, proprietary information, confidential business and personnel information), a Participant shall promptly disclose and assign to the Company or its designee all right, title, and interest in such intellectual property, and shall take all reasonable steps necessary to enable the Company to secure all right, title and interest in such intellectual property in the United States and in any foreign country.
(d) Upon exercise, payment, or delivery of cash or Common Stock pursuant to an Award, the Participant shall certify on a form acceptable to the Company that he or she is in compliance with the terms and conditions of the Plan and, if a severance of Continuous Service has occurred for any reason, shall state the name and address of the Participants then-current employer or any entity for which the Participant performs business services and the Participants title, and shall identify any organization or business in which the Participant owns a greater-than-five-percent equity interest.
(e) If the Company determines, in its sole and absolute discretion, that (i) a Participant has violated any of the Conditions, (ii) a Participant has breached any non-competition, non-solicitation, conflict of interest or duty of loyalty covenant in any written employment-related agreement between the Participant and the Company, or (iii) to the extent a Participant does not have an employment-related agreement with the Company with the covenants described in clause (ii) and the Participant during his or her Continuous Service, or within one year after its termination for any reason (x) has rendered services to or otherwise directly or indirectly engaged in or assisted, any organization or business that, in the judgment of the Company in its sole and absolute discretion, is or is working to become competitive with the Company; (y) has solicited any non-
administrative employee of the Company to terminate employment with the Company; or (z) has engaged in activities which are materially prejudicial to or in conflict with the interests of the Company, including any breaches of fiduciary duty or the duty of loyalty, then the Company may, in its sole and absolute discretion, impose a Termination, Rescission, and/or Recapture with respect to any or all of the Participants relevant Awards, Shares, and the proceeds thereof.
(f) Within ten days after receiving notice from the Company of any such activity described in Section 14(e) above, the Participant shall deliver to the Company the Shares acquired pursuant to the Award, or, if Participant has sold the Shares, the gain realized, or payment received as a result of the rescinded exercise, payment, or delivery; provided , that if the Participant returns Shares that the Participant purchased pursuant to the exercise of an Option (or the gains realized from the sale of such Common Stock), the Company shall promptly refund the exercise price, without earnings, that the Participant paid for the Shares. Any payment by the Participant to the Company pursuant to this Section shall be made either in cash or by returning to the Company the number of Shares that the Participant received in connection with the rescinded exercise, payment, or delivery. It shall not be a basis for Termination, Rescission or Recapture if after termination of a Participants Continuous Service, the Participant purchases, as an investment or otherwise, stock or other securities of such an organization or business, so long as (i) such stock or other securities are listed upon a recognized securities exchange or traded over-the-counter, and (ii) such investment does not represent more than a five percent (5%) equity interest in the organization or business.
(g) Notwithstanding the foregoing provisions of this Section, the Company has sole and absolute discretion not to require Termination, Rescission and/or Recapture, and its determination not to require Termination, Rescission and/or Recapture with respect to any particular act by a particular Participant or Award shall not in any way reduce or eliminate the Companys authority to require Termination, Rescission and/or Recapture with respect to any other act or Participant or Award. Nothing in this Section shall be construed to impose obligations on the Participant to refrain from engaging in lawful competition with the Company after the termination of employment that does not violate subsections (b), (c), or (e) of this Section, other than any obligations that are part of any separate agreement between the Company and the Participant or that arise under Applicable Law.
(h) All administrative and discretionary authority given to the Company under this Section shall be exercised by the most senior human resources executive of the Company or such other person or committee (including without limitation the Committee) as the Committee may designate from time to time.
(i) If any provision within this Section is determined to be unenforceable or invalid under any Applicable Law, such provision will be applied to the maximum extent permitted by Applicable Law, and shall automatically be deemed amended in a manner consistent with its objectives and any limitations required under Applicable Law.
15. Recoupment of Awards . Unless otherwise specifically provided in an Award Agreement, and to the extent permitted by Applicable Law, the Committee may in its sole and absolute discretion, without obtaining the approval or consent of the Companys shareholders or of any Participant, require that any Participant reimburse the Company for all or any portion of any Awards granted under this Plan ( Reimbursement ), or the Committee may require the Termination or Rescission of, or the Recapture associated with, any Award, if and to the extent
(a) the granting, vesting, or payment of such Award was predicated upon the achievement of certain financial results that were subsequently the subject of a material financial restatement;
(b) in the Committees view the Participant either benefited from a calculation that later proves to be materially inaccurate, or engaged in fraud or misconduct that caused or partially caused the need for a material financial restatement by the Company or any Affiliate; and
(c) a lower granting, vesting, or payment of such Award would have occurred based upon the conduct described in clause (b) of this Section.
In each instance, the Committee will, to the extent practicable and allowable under Applicable Laws, require Reimbursement, Termination or Rescission of, or Recapture relating to, any such Award granted to a Participant; provided that the Company will not seek Reimbursement, Termination or Rescission of, or Recapture relating to, any such Awards that were paid or vested more than three years prior to the first date of the applicable restatement period.
16. Relationship to other Benefits . No payment pursuant to the Plan shall be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company or any Affiliate except to the extent otherwise expressly provided in writing in such other plan or an agreement thereunder.
17. Administration of the Plan . The Committee shall administer the Plan in accordance with its terms, provided that the Board may act in lieu of the Committee on any matter. The Committee shall hold meetings at such times and places as it may determine and shall make such rules and regulations for the conduct of its business as it deems advisable. In the absence of a duly appointed Committee, the Board shall function as the Committee for all purposes of the Plan.
(a) Committee Composition . The Board shall appoint the members of the Committee. If and to the extent permitted by Applicable Law, the Committee may authorize one or more executive officers to make Awards to Eligible Persons other than themselves. The Board may at any time appoint additional members to the Committee, remove and replace members of the Committee with or without Cause, and fill vacancies on the Committee however caused.
(b) Powers of the Committee . Subject to the provisions of the Plan, the Committee shall have the authority, in its sole discretion:
(i) to grant Awards and to determine Eligible Persons to whom Awards shall be granted from time to time, and the number of Shares, units, or dollars to be covered by each Award;
(ii) to determine, from time to time, the Fair Market Value of Shares;
(iii) to determine, and to set forth in Award Agreements, the terms and conditions of all Awards, including any applicable exercise or purchase price, the installments and conditions under which an Award shall become vested (which may be based on performance), terminated, expired, cancelled, or replaced, and the circumstances for vesting acceleration or waiver of forfeiture restrictions, and other restrictions and limitations;
(iv) to approve the forms of Award Agreements and all other documents, notices and certificates in connection therewith which need not be identical either as to type of Award or among Participants;
(v) to construe and interpret the terms of the Plan and any Award Agreement, to determine the meaning of their terms, and to prescribe, amend, and rescind rules and procedures relating to the Plan and its administration;
(vi) to the extent consistent with the purposes of the Plan and without amending the Plan, to modify, to cancel, or to waive the Companys rights with respect to any Awards, to adjust or to modify Award Agreements for changes in Applicable Law, and to recognize differences in foreign law, tax policies, or customs ;
(vii) in the event that the Company establishes, for itself or using the services of a third party, an automated system for the documentation, granting, settlement, or exercise of Award, such as a system using an internet website or interactive voice response, to implement paperless documentation, granting, settlement, or exercise of Awards by a Participant may be permitted through the use of such an automated system; and
(viii) to make all interpretations and to take all other actions that the Committee may consider necessary or advisable to administer the Plan or to effectuate its purposes.
Subject to Applicable Law and the restrictions set forth in the Plan, the Committee may delegate administrative functions to individuals who are Directors or Employees.
(d) Local Law Adjustments and Sub-plans. To facilitate the making of any grant of an Award under this Plan, the Committee may adopt rules and provide for such special terms for Awards to Participants who are located within the United States, foreign nationals, or who are employed by the Company or any Affiliate outside of the United States of America as the Committee may consider necessary or appropriate to accommodate differences in local law, tax policy or custom. Without limiting the foregoing, the Company is specifically authorized to adopt rules and procedures regarding the conversion of local currency, taxes, withholding procedures and handling of stock certificates which vary with the customs and requirements of particular countries. The Company may adopt sub-plans and establish escrow accounts and trusts, and settle Awards in cash in lieu of shares, as may be appropriate, required or applicable to particular locations and countries.
(c) Action by Committee . Unless otherwise established by the Board or in any charter of the Committee, a majority of the Committee shall constitute a quorum and the acts of a majority of the members present at any meeting at which a quorum is present, and acts approved in writing by all members of the Committee in lieu of a meeting, shall be deemed the acts of the Committee. Each member of the Committee is entitled to, in good faith, rely or act upon any report or other information furnished to that member by an officer or other employee of the Company or any Affiliate, the Companys independent certified public accounts, or any executive compensation consultant or other professional retained by the Company to assist in the administration of the Plan.
(d) Deference to Committee Determinations . The Committee shall have the discretion to interpret or construe ambiguous, unclear, or implied (but omitted) terms in any fashion it deems to
be appropriate in its sole discretion, and to make any findings of fact needed in the administration of the Plan or Award Agreements. The Committees prior exercise of its discretionary authority shall not obligate it to exercise its authority in a like fashion thereafter. The Committees interpretation and construction of any provision of the Plan, or of any Award or Award Agreement, and all determination the Committee makes pursuant to the Plan shall be final, binding, and conclusive. The validity of any such interpretation, construction, decision or finding of fact shall not be given de novo review if challenged in court, by arbitration, or in any other forum, and shall be upheld unless clearly made in bad faith or materially affected by fraud.
(e) No Liability; Indemnification . Neither the Board nor any Committee member, nor any Person acting at the direction of the Board or the Committee, shall be liable for any act, omission, interpretation, construction or determination made in good faith with respect to the Plan, any Award or any Award Agreement. The Company and its Affiliates shall pay or reimburse any member of the Committee, as well as any Director, Employee, or Consultant who in good faith takes action on behalf of the Plan, for all expenses incurred with respect to the Plan, and to the full extent allowable under Applicable Law shall indemnify each and every one of them for any claims, liabilities, and costs (including reasonable attorneys fees) arising out of their good faith performance of duties on behalf of the Plan. The Company and its Affiliates may, but shall not be required to, obtain liability insurance for this purpose.
(f) Expenses . The expenses of administering the Plan shall be borne jointly and severally by the Company and its Affiliates.
18. Modification of Awards and Substitution of Options . Within the limitations of the Plan, the Committee may modify an Award to accelerate the rate at which an Option or SAR may be exercised, to accelerate the vesting of any Award, to extend or renew outstanding Awards, to accept the cancellation of outstanding Awards to the extent not previously exercised, or to make any change that the Plan would permit for a new Award. However, neither the Company nor the Committee shall, without shareholder approval, either (a) allow for a repricing within the meaning of federal securities laws applicable to proxy statement disclosures, or (b) cancel an outstanding Option or SAR whose exercise price is greater than Fair Market Value at the time of cancellation for the purpose of reissuing the Option or SAR to the Participant at a lower exercise price or granting a replacement award of a different type. Notwithstanding the foregoing, no modification of an outstanding Award may materially and adversely affect a Participants rights thereunder unless either (i) the Participant provides written consent to the modification, (ii) the amendment is required by Applicable Law or (iii) before a Change in Control, the Committee determines in good faith that the modification is not materially adverse to the Participant.
19. Plan Amendment and Termination . The Board may amend or terminate the Plan as it shall deem advisable; plan amendments shall be subject to approval of the Companys shareholders to the extent the Board determines such approval is required by Applicable Laws. A termination or amendment of the Plan shall not materially and adversely affect a Participants rights under an Award previously granted to him or her, unless the Participant consents in writing to such termination or amendment or, the case of an amendment, the amendment is required by Applicable Law. Furthermore, neither the Company nor the Committee shall, without shareholder approval, either (a) allow for a repricing within the meaning of federal securities laws applicable to proxy statement disclosures, or (b) cancel an outstanding Option or SAR whose exercise price is greater
than Fair Market Value at the time of cancellation for the purpose of reissuing the Option or SAR to the Participant at a lower exercise price or granting a replacement award of a different type.
20. Term of Plan . If not sooner terminated by the Board, this Plan shall terminate at the close of business on the date ten years after its effective date as determined under Section 1(b) above. No Awards shall be made under the Plan after its termination.
21. Governing Law . The terms of this Plan shall be governed by the laws of the State of Delaware, within the United States of America, without regard to the States conflict of laws rules.
22. Laws and Regulations .
(a) General Rules. This Plan, the granting of Awards, the exercise of Options and SARs, and the obligations of the Company hereunder (including those to pay cash or to deliver, sell or accept the surrender of any of its Shares or other securities) shall be subject to all Applicable Law. In the event that any Shares are not registered under any Applicable Law prior to the required delivery of them pursuant to Awards, the Company may require, as a condition to their issuance or delivery, that the persons to whom the Shares are to be issued or delivered make any written representations and warranties (such as that such Shares are being acquired by the Participant for investment for the Participants own account and not with a view to, for resale in connection with, or with an intent of participating directly or indirectly in, any distribution of such Shares) that the Committee may reasonably require, and the Committee may in its sole discretion include a legend to such effect on the certificates representing any Shares issued or delivered pursuant to the Plan.
(b) Black-out Periods. Notwithstanding any contrary terms within the Plan or any Award Agreement, the Committee shall have the absolute discretion to impose a blackout period on the exercise of any Option or SAR, as well as the settlement of any Award, with respect to any or all Participants (including those whose Continuous Service has ended) to the extent that the Committee determines that doing so is either desirable or required in order to comply with applicable securities laws.
23. No Shareholder Rights . Neither a Participant nor any transferee or Beneficiary of a Participant shall have any rights as a shareholder of the Company with respect to any Shares underlying any Award until the date of issuance of a share certificate to such Participant, transferee, or Beneficiary for such Shares in accordance with the Companys governing instruments and Applicable Law. Prior to the issuance of Shares or Restricted Shares pursuant to an Award, a Participant shall not have the right to vote or to receive dividends or any other rights as a shareholder with respect to the Shares underlying the Award (unless otherwise provided in the Award Agreement for Restricted Shares), notwithstanding its exercise in the case of Options and SARs. No adjustment will be made for a dividend or other right that is determined based on a record date prior to the date the stock certificate is issued, except as otherwise specifically provided for in this Plan or an Award Agreement.
Appendix I: Definitions
As used in the Plan, the following terms have the meanings indicated when they begin with initial capital letters within the Plan:
Affiliate means, with respect to any Person, any other Person that directly or indirectly controls or is controlled by or under common control with such Person. For the purposes of this definition, control, when used with respect to any Person, means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person or the power to elect directors, whether through the ownership of voting securities, by contract or otherwise; and the terms affiliated, controlling and controlled have meanings correlative to the foregoing.
Applicable Law means the legal requirements relating to the administration of options and share-based plans under any applicable laws of the United States, any other country, and any provincial, state, or local subdivision, any applicable stock exchange or automated quotation system rules or regulations, as such laws, rules, regulations and requirements shall be in place from time to time.
Award means any award made pursuant to the Plan, including awards made in the form of an Option, an SAR, a Restricted Share, a RSU, an Unrestricted Share, a DSU, a Performance Award, or Dividend Equivalent Rights, or any combination thereof, whether alternative or cumulative.
Award Agreement means any written document setting forth the terms of an Award that has been authorized by the Committee. The Committee shall determine the form or forms of documents to be used, and may change them from time to time for any reason.
Beneficiary means the person or entity designated by the Participant, in a form approved by the Company, to exercise the Participants rights with respect to an Award or receive payment or settlement under an Award after the Participants death.
Board means the Board of Directors of the Company.
Cause means (unless a different meaning is set forth in the Participants Award Agreement or employment agreement with the Company in which case that definition shall apply) (A) a Participants willful and continuing failure (except where due to physical or mental incapacity) to substantially perform his or her duties, which is not remedied within fifteen (15) days after receipt of written notice from the Company specifying such failure; (B) a Participants willful malfeasance or gross neglect in the performance of his or her duties resulting in material harm to the Company; (C) a Participants conviction of, or plea of guilty or nolo contendere to, a felony or a misdemeanor involving moral turpitude; (D) the commission by a Participant of an act of fraud or embezzlement against the Company or any Affiliate; or (E) a Participants willful material breach of any material provision of the Participants employment agreement with the Company, if any, (as determined in good faith by the Board) which is not remedied within fifteen (15) days after (I) receipt of written
notice from the Company specifying such breach and (II) the opportunity to appear before the Board. For purposes of the preceding sentence, no act or failure to act by the Participant shall be considered willful unless done or omitted to be done by the Participant in bad faith or without reasonable belief that the Participants action or omission was in the best interests of the Company.
Code means the Internal Revenue Code of 1986, as amended.
Committee means the Compensation Committee of the Board or its successor, provided that the term Committee means (i) the Board when acting at any time in lieu of the Committee, (ii) w ith respect to any decision involving an Award intended to satisfy the requirements of Code Section 162(m), a committee consisting of two or more Directors of the Company who are outside directors within the meaning of Code Section 162(m), and (iii) with respect to any decision relating to a Reporting Person, a committee consisting of solely of two or more Directors who are disinterested within the meaning of Rule 16b-3 .
Company means Six Flags Entertainment Corporation, a Delaware corporation; provided that in the event the Company reincorporates to another jurisdiction, all references to the term Company shall refer to the Company in such new jurisdiction.
Company Stock means common stock, $0.025 par value, of the Company. In the event of a change in the capital structure of the Company affecting the common stock (as provided in
Section 13), the Shares resulting from such a change in the common stock shall be deemed to be Company Stock within the meaning of the Plan.
Consultant means any person (other than an Employee or Director), including an advisor, who is engaged by the Company or any Affiliate to render services and is compensated for such services.
Continuing Directors shall mean, as of any date of determination, any member of the Board who (i) was a member of the Board on the Effective Date or (ii) was nominated for election or elected to the Board with the approval of a majority of the Continuing Directors who were members of the Board at the time of such nomination or election.
Continuous Service means a Participants period of service in the absence of any interruption or termination, as an Employee, Director, or Consultant. Continuous Service shall not be considered interrupted in the case of: (i) sick leave; (ii) military leave; (iii) any other leave of absence approved by the Committee, provided that such leave is for a period of not more than 90 days, unless reemployment upon the expiration of such leave is guaranteed by contract or statute, or unless provided otherwise pursuant to Company policy adopted from time to time; (iv) changes in status from Director to advisory director or emeritus status; or (iv) transfers between locations of the Company or between the Company and its Affiliates. Changes in status between service as an Employee, Director, and a Consultant will not constitute an interruption of Continuous Service if the individual continues to perform bona fide services for the Company. The Committee shall have the discretion to determine whether and to what extent the vesting of any Awards shall be tolled during any paid or unpaid leave of absence; provided, however, that in the absence of such determination, vesting for all Awards shall be tolled during any such unpaid leave (but not for a paid leave).
Deferred Share Units or DSUs mean Awards pursuant to Section 8 of the Plan.
Director means a member of the Board, or a member of the board of directors of an Affiliate.
Disabled means for an ISO, the Participant is disabled within the meaning of Code section 22(e)(3) and for any other Award means a condition under which a Participant
(a) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or
(b) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident or health plan covering employees of the Company.
Dividend Equivalent Rights means Awards pursuant to Section 10 of the Plan, which may be attached to other Awards.
Eligible Person means any Consultant, Director, or Employee and includes non-Employees to whom an offer of employment has been or is being extended.
Employee means any person whom the Company or any Affiliate classifies as an employee (including an officer) for employment tax purposes, whether or not that classification is correct. The payment by the Company of a directors fee to a Director shall not be sufficient to constitute employment of such Director by the Company.
Employer means the Company and each Subsidiary and Affiliate that employs one or more Participants.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Fair Market Value means the fair market value of the Company Stock as of such date based on the then prevailing prices of the Company Stock on the New York Stock Exchange, the American Stock Exchange, NASDAQ or such other stocks exchange as the Company Stock is then listed for trading (and, if none, as determined by the Committee in good faith based on relevant facts and circumstances).
Grant Date means the later of (i) the date designated as the Grant Date within an Award Agreement, and (ii) date on which the Committee determines the key terms of an Award, provided that as soon as reasonably practical thereafter the Committee or its authorized delegate both notifies the Eligible Person of the Award and enters into an Award Agreement with the Eligible Person. For Awards granted on or immediately after the Effective Date, the order of the Bankruptcy court confirming the Companys Plan of Reorganization shall be deemed to constitute the date on which the Committee determines the key terms of such Awards.
Incentive Stock Option (or ISO ) means, an Option that qualifies for favorable income tax treatment under Code Section 422.
Involuntary Termination means termination of a Participants Continuous Service under the following circumstances occurring on or after a Change in Control: (i) termination without Cause by the Company or an Affiliate or successor thereto, as appropriate; or (ii) voluntary termination by the Participant within one year following (A) a material reduction in the Participants job responsibilities, provided that neither a mere change in title alone nor reassignment to a substantially similar position shall constitute a material reduction in job responsibilities; (B) an involuntary relocation of the Participants work site to a facility or location more than 60 miles from the Participants principal work site at the time of the Change in Control; or (C) a material reduction in Participants total cash compensation, other than as part of an reduction by a substantially similar percentage in the total cash compensation of all other similarly-situated Employees or Directors, as applicable.
Non-ISO means an Option not intended to qualify as an Incentive Stock Option, as designated in the applicable Award Agreement.
Option means a right to purchase Company Stock granted under the Plan, at a price determined in accordance with the Plan.
Participant means any Eligible Person who holds an outstanding Award.
Performance Awards mean Awards granted pursuant to Section 9.
Performance Unit means an Award granted pursuant to Section 9(a) of the Plan which may be paid in cash, in Shares, or such combination of cash and Shares as the Committee in its sole discretion shall determine.
Permitted Holders shall have the meaning set forth in the Exit Facility (as defined in the Plan of Reorganization) as in effect on the Effective Date.
Person means any natural person, association, trust, business trust, cooperative, corporation, general partnership, joint venture, joint-stock company, limited partnership, limited liability company, real estate investment trust, regulatory body, governmental agency or instrumentality, unincorporated organization or organizational entity.
Plan means this Six Flags Entertainment Corporation Long-Term Incentive Plan.
Recapture and Rescission have the meaning set forth in Section 14 of the Plan.
Reimbursement has the meaning set forth in Section 15 of the Plan.
Reporting Person means an Employee, Director, or Consultant who is subject to the reporting requirements set forth under Rule 16b-3.
Restricted Share means a Share of Company Stock awarded with restrictions imposed under Section 7.
Restricted Share Unit or RSU means a right granted to a Participant to receive Shares or cash upon the lapse of restrictions imposed under Section 7.
Retirement means a Participants termination of employment after age 60.
Rule 16b-3 means Rule 16b-3 promulgated under the Exchange Act, as amended from time to time, or any successor provision.
SAR or Share Appreciation Right means a right to receive amounts awarded under Section 6.
Share means a share of Common Stock of the Company, as adjusted in accordance with Section 13 of the Plan.
Subsidiary of the Company shall mean: any corporation of which the Company owns, directly or indirectly, more than fifty percent (50%) of the voting stock
Ten Percent Holder means a person who owns (within the meaning of Code Section 422) stock representing more than ten percent (10%) of the combined voting power of all classes of stock of the Company.
Unrestricted Shares mean Shares (without restrictions) awarded pursuant to Section 7 of the Plan.
Withholding Taxes means the aggregate minimum amount of federal, state, local and foreign income, payroll and other taxes that the Company and any Affiliates are required to withhold in connection with any Award.
Exhibit 10.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the Agreement), dated as of April 1, 2010, is entered into by and among Six Flags, Inc., a Delaware corporation (SF), Six Flags Operations Inc., a Delaware corporation, and Six Flags Theme Parks Inc., a Delaware corporation (collectively, the Company), and Mark Shapiro (the Executive).
W I T N E S S E T H :
WHEREAS, Executive is currently employed by the Company pursuant to that certain Employment Agreement between Executive and the Company dated as of April 1, 2009, as amended (the Existing Employment Agreement);
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Agreement; and
WHEREAS, this Agreement shall supersede and replace the Existing Employment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, it is hereby agreed as follows:
If to the Company:
Six
Flags, Inc.
1540 Broadway; 15th Floor
New York, New York 10036
Attention: James M. Coughlin, Esq.
Fax: (212) 354-3089
If to Executive:
Mark Shapiro
c/o Six Flags, Inc.
1540 Broadway; 15th Floor
New York, New York 10036
IN WITNESS WHEREOF, Executive and the Company have caused this Agreement to be executed as of the date first above written.
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SIX FLAGS, INC. |
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By: |
/s/ James Coughlin |
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Name: |
James Coughlin |
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Title: |
General Counsel |
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SIX FLAGS OPERATIONS INC. |
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By: |
/s/ James Coughlin |
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Name: |
James Coughlin |
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Title: |
General Counsel |
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SIX FLAGS THEME PARKS INC. |
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By: |
/s/ James Coughlin |
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Name: |
James Coughlin |
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Title: |
General Counsel |
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/s/ Mark Shapiro |
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Mark Shapiro |
EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Executive to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Adjusted EBITDA: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
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Performance Level |
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0.5 |
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Actual Performance equals 90% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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0.75 |
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Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.0 |
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Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.5 |
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Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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2.0 |
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Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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Determined by interpolation between 0.5 and 2.0 |
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Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If actual EBITDA for a given fiscal year is or exceeds 110% of Budgeted EBITDA, then Executive shall receive the Maximum Bonus notwithstanding the results of the other Performance Parameters.
6. Notwithstanding anything to the contrary above, Executive shall not receive an annual bonus greater than the Maximum Bonus.
7. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Exhibit 10.3
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and Jeffrey Speed. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(v) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. Exhibit A to the Agreement is hereby amended in its entirety to read as provided in Exhibit A to this Amendment.
4. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
5. Except as set forth in this Amendment, the Agreement remains in full force and effect.
(Signature page follows)
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/s/ Jeffrey Speed |
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Jeffrey Speed |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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By: |
/s/ Mark Shapiro |
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Name: Mark Shapiro |
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Title: President and Chief Executive Officer |
EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Chief Executive Officer to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Adjusted EBITDA: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
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Performance Level |
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0.5 |
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Actual Performance equals 90% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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0.75 |
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Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.0 |
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Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.5 |
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Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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2.0 |
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Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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Determined by interpolation between 0.5 and 2.0 |
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Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Exhibit 10.4
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and Louis Koskovolis. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(iv) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. Exhibit A to the Agreement is hereby amended in its entirety to read as provided in Exhibit A to this Amendment.
4. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
5. Except as set forth in this Amendment, the Agreement remains in full force and effect.
(Signature page follows)
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/s/ Louis Koskovolis |
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Louis Koskovolis |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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By: |
/s/ Mark Shapiro |
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Name: |
Mark Shapiro |
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Title: |
President and Chief Executive Officer |
EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship Revenue: Total budgeted sponsorship revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Chief Executive Officer to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Sponsorship Revenue: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA, provided that if actual Sponsorship Revenue equals or exceeds 100% of Budgeted Sponsorship Revenue for the fiscal year, Executive shall be entitled to receive 50% of the Target Bonus.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
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Performance Level |
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0.5 |
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Actual Performance equals 90% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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0.75 |
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Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.0 |
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Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.5 |
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Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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2.0 |
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Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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Determined by interpolation between 0.5 and 2.0 |
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Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Exhibit 10.5
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and Mark Quenzel. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(iv) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. Exhibit A to the Agreement is hereby amended in its entirety to read as provided in Exhibit A to this Amendment.
4. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
5. Except as set forth in this Amendment, the Agreement remains in full force and effect.
(Signature page follows)
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/s/ Mark Quenzel |
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Mark Quenzel |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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By: |
/s/ Mark Shapiro |
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Name: |
Mark Shapiro |
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Title: |
President and Chief Executive Officer |
EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Chief Executive Officer to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Adjusted EBITDA: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
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Performance Level |
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0.5 |
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Actual Performance equals 90% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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0.75 |
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Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.0 |
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Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.5 |
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Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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2.0 |
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Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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Determined by interpolation between 0.5 and 2.0 |
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Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Exhibit 10.6
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and Andrew Schleimer. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(iv) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. Exhibit A to the Agreement is hereby amended in its entirety to read as provided in Exhibit A to this Amendment.
4. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
5. Except as set forth in this Amendment, the Agreement remains in full force and effect.
(Signature page follows)
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/s/ Andrew Schleimer |
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Andrew Schleimer |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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By: |
/s/ Mark Shapiro |
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Name: |
Mark Shapiro |
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Title: |
President and Chief Executive Officer |
EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Chief Executive Officer to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Adjusted EBITDA: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
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Performance Level |
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0.5 |
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Actual Performance equals 90% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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0.75 |
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Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.0 |
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Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.5 |
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Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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2.0 |
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Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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Determined by interpolation between 0.5 and 2.0 |
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Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Exhibit 99.1
IN THE UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
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In re |
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Chapter 11 |
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Premier International Holdings Inc., et al. , (1) |
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Case No. 09-12019 (CSS) |
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Debtors. |
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(Jointly Administered) |
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
CONFIRMING
THE DEBTORS MODIFIED FOURTH AMENDED JOINT PLAN OF
REORGANIZATION UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
The above-captioned debtors (the Debtors ) having:
a. commenced these chapter 11 cases by filing voluntary petitions for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (the Bankruptcy Code ) on June 13, 2009 (the Petition Date ) in the United States Bankruptcy Court for the District of Delaware (the Court );
b. continued to operate their businesses and manage their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code;
(1) The Debtors are the following thirty-seven entities (the last four digits of their respective taxpayer identification numbers, if any, follow in parentheses): Astroworld GP LLC (0431), Astroworld LP (0445), Astroworld LP LLC (0460), Fiesta Texas Inc. (2900), Funtime, Inc. (7495), Funtime Parks, Inc. (0042), Great America LLC (7907), Great Escape Holding Inc. (2284), Great Escape Rides L.P. (9906), Great Escape Theme Park L.P. (3322), Hurricane Harbor GP LLC (0376), Hurricane Harbor LP (0408), Hurricane Harbor LP LLC (0417), KKI, LLC (2287), Magic Mountain LLC (8004), Park Management Corp. (1641), PP Data Services Inc. (8826), Premier International Holdings Inc. (6510), Premier Parks of Colorado Inc. (3464), Premier Parks Holdings Inc. (9961), Premier Waterworld Sacramento Inc. (8406), Riverside Park Enterprises, Inc. (7486), SF HWP Management LLC (5651), SFJ Management Inc. (4280), SFRCC Corp. (1638), Six Flags, Inc. (5059), Six Flags America LP (8165), Six Flags America Property Corporation (5464), Six Flags Great Adventure LLC (8235), Six Flags Great Escape L.P. (8306), Six Flags Operations Inc. (7714), Six Flags Services, Inc. (6089), Six Flags Services of Illinois, Inc. (2550), Six Flags St. Louis LLC (8376), Six Flags Theme Parks Inc. (4873), South Street Holdings LLC (7486), Stuart Amusement Company (2016). The mailing address of each of the Debtors solely for purposes of notices and communications is 1540 Broadway, 15th Floor, New York, NY 10036 (Attn: James Coughlin).
c. filed, on July 22, 2009, the Debtors Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (the Original Plan ) [Docket No. 239] and the accompanying Disclosure Statement for the Debtors Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (the Disclosure Statement for the Original Plan ) [Docket No. 240], which reflected the reorganization agreement reached with certain of the Prepetition Lenders;
d. filed, on August 21, 2009, the Debtors Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (the First Amended Plan ) [Docket No. 496] and the accompanying Disclosure Statement for the Debtors Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (the Disclosure Statement for the First Amended Plan ) [Docket No. 498], which provided additional detail on the Debtors financial condition and business projections;
e. filed, on November 7, 2009, the Debtors Second Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (the Second Amended Plan ) [Docket No. 944] and the accompanying Disclosure Statement for the Debtors Second Amended Joint Plan of Reorganization (the Disclosure Statement for the Second Amended Plan ) [Docket No. 943]. The Second Amended Plan reflected consensus between the Debtors and the SFO Noteholders and, as compared to the Original Plan and the First Amended Plan, provided for the same or better treatment for all of the Debtors stakeholders, including the payment in full of the Prepetition Lenders, enhanced recoveries for the holders of the Unsecured Notes and the full satisfaction of all trade claims;
f. filed, on December 3, 2009, the Debtors Third Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (the Third Amended Plan ) [Docket No. 1116] and the accompanying Disclosure Statement for the Debtors Third Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (the Disclosure Statement for the Third Amended Plan ) [Docket No. 1117], which made clarifying amendments and additional disclosures to the Second Amended Plan;
g. on December 18, 2009, received the Courts approval of the Disclosure Statement for the Third Amended Plan by that certain Certification of Counsel Regarding Order Approving Disclosure Statement and Solicitation Procedures (the Disclosure Statement and Solicitation Order ) [Docket No. 1236];
h. filed, on December 18, 2009 the Debtors Fourth Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code [Docket No. 1226] (the Fourth Amended Plan )(2) and the Disclosure Statement for Debtors Fourth Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code
(2) Unless otherwise noted, capitalized terms not defined herein shall have the meanings ascribed to them in the Plan.
[Docket No. 1227] (as it may be amended, supplemented or modified from time to time, the Disclosure Statement ). The Fourth Amended Plan contained technical amendments and additional disclosures that had been agreed to with certain parties-in-interest and announced at the Disclosure Statement hearing.
i. distributed solicitation materials beginning on or about December 21, 2009, consistent with the Bankruptcy Code, the Bankruptcy Rules, and the Revised Order Approving Debtors Motion (I) Amending Proposed Solicitation Procedures Order and (II) Seeking Approval of Revised Timeline in Connection Therewith on December 21, 2009 [Docket No. 1248] (the Solicitation Procedures Order ), as evidenced by the Affidavit of Service of Travis K. Vandell of Kurtzman Carson Consultants LLC [Docket No. 1296] (the Solicitation Procedures Affidavit );
j. published notice of the Confirmation Hearing (the Confirmation Hearing Notice ) in the National Edition of USA Today , consistent with the Solicitation Procedures Order;
k. filed on January 27, 2010, the Voting Extension of Leticia Salas regarding the extension of the voting deadline to February 19, 2010 for voting on confirmation of the plan [Docket No. 1451] (the Voting Extension ) detailing the results of the Plan voting process;
l. filed, on February 11, 2010, the Plan Supplement for Fourth Amended Plan [Docket No. 1518] (the Original Plan Supplement );
m. filed on March 3, 2010, the Declaration of Kurtzman Carson Consultants LLC Regarding Tabulation of Votes in Connection with Debtors Fourth Amended Chapter 11 Plan of Premier International Holdings Inc. [Docket No. 1669] (the Voting Certification ); and
n. filed, on March 17, 2010, the Notice of Amendment to Plan Supplement for Fourth Amended Plan [Docket No. 1828] (the First Amended Plan Supplement )
o. held a hearing on confirmation of the Fourth Amended Plan during the week of March 8, 2010 and during the week of March 15, 2010 through March 19, 2010. Prior to the conclusion of the confirmation hearing on the Fourth Amended Plan, the Debtors entered into an agreement in principle (the Agreement in Principle ) with certain creditor constituencies, including the Official Committee of Unsecured Creditors of the Debtors (the Creditors Committee ) and the Ad Hoc Committee of Six Flags, Inc. Noteholders (the SFI Noteholders ), to modify the Fourth Amended Plan to provide the same or increased recoveries for all creditor constituencies.
p. filed, on March 24, 2010, the Debtors Emergency Motion for an Order Fixing a Period of Time to Amend Voting on the Debtors Proposed Modified Fourth Amended Plan of Reorganization and Scheduling a Confirmation Hearing [Docket No. 1867] (the Voting Amendment Motion );
q. filed, on April 1, 2010, the Debtors Modified Fourth Amended Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code [Docket No. 1928] (the Modified Fourth Amended Plan or, as it may be amended, supplemented or modified from time to time, the Plan ),(3) which reflects the Agreement in Principle;
r. filed, on April 12, 2010, the Notice of Second Amendment to Plan Supplement for Debtors Modified Fourth Amended Plan of Reorganization [Docket No. 1974] (the Second Amended Plan Supplement );
s. filed, on April 16, 2010, the Notice of Third Amendment to Plan Supplement for Debtors Modified Fourth Amended Plan of Reorganization [Docket No. 1999] (the Third Amended Plan Supplement );
t. filed, on April 21, 2010, the Notice of Fourth Amendment to Plan Supplement for Debtors Modified Fourth Amended Plan of Reorganization [Docket No. 2029] (the Fourth Amended Plan Supplement and, together with the Original Plan Supplement, the First Amended Plan Supplement, the Second Plan Supplement and the Third Plan Supplement, the Plan Supplement ); and
u. filed on April 26, 2010, the Amended Declaration of Kurtzman Carson Consultants LLC Regarding Tabulation of Votes in Connection with Debtors Fourth Amended Chapter 11 Plan of Premier International Holdings Inc. , setting forth revised voting and tabulation results (the Supplemental Voting Certification );
This Court having:
a. entered the Revised Solicitation Procedures Order on December 21, 2009;
b. granted the Voting Amendment Order on April 1, 2010;
c. held the continuation of the confirmation hearing on the Plan (the Confirmation Hearing ), pursuant to Bankruptcy Rules 3017 and 3018 and sections 1126, 1128, and 1129 of the Bankruptcy Code, on April 28, 2010;
d. reviewed the Plan, the Disclosure Statement, the Plan Supplement, the Solicitation Procedures Affidavit, the Voting Certification and the Supplemental Voting Certification and all filed pleadings, exhibits, statements, and comments regarding confirmation, including all objections, statements, and reservations of rights;
e. heard the statements, arguments, and objections made by counsel in respect of confirmation;
(3) Unless otherwise noted, capitalized terms not defined herein shall have the meanings ascribed to them in the Plan.
f. considered all oral representations, testimony, documents, filings, and other evidence regarding confirmation;
g. overruled any and all objections to the Plan and confirmation thereof and all statements and reservations of rights not consensually resolved or withdrawn, unless otherwise indicated; and
h. taken judicial notice of the papers and pleadings filed in the chapter 11 cases.
NOW, THEREFORE, it appearing to the Court that notice of the Confirmation Hearing and the opportunity for any party in interest to object to confirmation has been adequate and appropriate as to all parties affected or to be affected by the Plan and the transactions contemplated thereby, and the legal and factual bases set forth in the documents filed in support of confirmation and presented at the Confirmation Hearing establish just cause for the relief granted herein; and after due deliberation thereon and good cause appearing therefor, the Court hereby makes and issues the following Findings of Fact, Conclusions of Law, and Orders:
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
IT IS HEREBY DETERMINED, FOUND, ADJUDGED, DECREED, AND ORDERED THAT:
A. Jurisdiction and Venue
B. Eligibility for Relief
C. Commencement and Joint Administration of these Chapter 11 Cases
D. Judicial Notice
E. Burden of Proof
F. Transmittal and Mailing of Materials; Notice
G. Voting Certifications
H. Plan Supplement Notice
I. Bankruptcy Rule 3016
J. Immaterial Plan Modification
(g) As part of the Plan and pursuant to the SFO Noteholders Commitment Letter, dated as of April 15, 2010, (the SFO Noteholders Commitment Letter), H Partners Management LLC and Bay Harbour Management LC (together, the Conversion Purchasers) have agreed to assign and contribute 2016 Notes representing $69.5 million of Allowed SFO Note Claims (the Contributed 2016 Notes) to SFI in exchange for shares of New Common Stock at an agreed exchange ratio and SFI has agreed to contribute the Contributed 2016 Notes to SFO for extinguishment and cancellation. The Conversion Purchasers shall take all such actions as are reasonably requested by the Debtors and/or the SFO Notes Indenture Trustee in order to effect the foregoing assignment, contribution, extinguishment and cancellation of the Contributed 2016 Notes as promptly as possible. In connection with the foregoing and solely for administrative convenience to facilitate the payment by the SFO Notes Indenture Trustee of the Allowed SFO Note Claims on the Effective Date (other than with respect to the Contributed 2016 Notes), on the Effective Date the Conversion Purchasers will transfer an aggregate amount of cash equal to $69.5 million (the Temporary Advance) to the SFO Notes Indenture Trustee. The Temporary Advance shall be added to $400.5 million of cash paid to the SFO Notes Indenture Trustee by the Debtors (as provided below) and distributed to the holders of 2016 Notes as provided under the SFO Notes Indenture and as contemplated by the Plan. Upon the receipt by the Conversion Purchasers of their pro rata distributions in respect of their 2016 Notes, $69.5 million of such distributions shall be treated as a return of the Temporary Advance, and not as a payment of their 2016 Notes. The SFO Notes Indenture Trustee is directed not to cancel the Contributed 2016 Notes until after the Contributed 2016 Notes have been contributed to SFI and the Debtors have directed the SFO Notes Indenture Trustee to cancel the Contributed 2016 Notes. The Temporary Advance is not intended to have any economic or Tax consequences (other than those contemplated by the SFO Noteholders Commitment Letter). For United States federal tax purposes, (i) the contribution of the Contributed Notes to SFI in exchange for stock of SFI shall be treated as a tax-free contribution by the Conversion Purchasers to SFI pursuant to section 351 of the Internal Revenue Code, (ii) the Conversion Purchasers shall have a basis in the New Common Stock received in exchange for their Contributed 2016 Notes equal to the tax basis of the Contributed Notes exchanged therefor and (iii) the making
and repayment of the Temporary Advance shall be ignored as a circular flow of cash; provided, however, the Debtor shall have no liability or obligation with respect to the foregoing tax treatment.
Notwithstanding anything contained in the Plan (as may be amended), the Plan Supplement, this Confirmation Order, the SFO Noteholders Commitment Letter or any document related to any of the foregoing, (i) the Debtors shall calculate the amount of Allowed SFO Note Claims and the Contributed 2016 Notes on the date that is one business day prior to the Effective Date. All calculations of interest with respect to Allowed SFO Note Claims shall be approved by the Conversion Purchasers and counsel for the SFO Noteholder Committee.
Notwithstanding anything contained in the Plan (as may be amended), the Plan Supplement, this Confirmation Order, the SFO Noteholders Commitment Letter or any document related to any of the foregoing, the Effective Date may occur only if (i) all the required items set forth in the previous paragraphs have occurred, (ii) all of the other conditions to the Effective Date set forth in the Plan (as amended or supplemented), the Plan Supplement, this Confirmation Order, the SFO Noteholders Commitment Letter or any document related to any of the foregoing have occurred, and (iii) (A) the Conversion Purchasers have deposited $69.5 million with the SFO Notes Indenture Trustee for distribution with respect to the Allowed SFO Note Claim (including the return of the Temporary Advance); and (B) the Debtors have deposited with the SFO Notes Indenture Trustee for distribution to SFO Noteholders in respect of Allowed SFO Note Claims (x) an amount equal to $400.5 million and (y) if applicable, if either the full amount of the $470 million in deposits has not been made with the SFO Notes Indenture Trustee for distribution with respect to Allowed SFO Notes Claims or the Effective Date has not occurred by 2PM New York Time on April 30, 2010, an interest fee equal to (A) $320,000 plus (B) an additional interest fee equal to $160,000 for each twenty four hour period following 2 PM New York Time on Monday, May 3, 2010 that such deposits have not been so made (the SFO Noteholder Fee ). Any such SFO Noteholder Fee shall be an Allowed Administrative Claim against the Debtors. The SFO Notes Indenture Trustee shall distribute the deposited funds on April 30, 2010, so long as all $470 million of the deposited funds are made before 2:00PM New York Time on April 30, 2010. Upon receipt of the payment and instructions from the SFO Notes Indenture Trustee, the recordholder shall immediately make payment to the holders of the 2016 Notes.
K. Compliance with the Requirements of Section 1129 of the Bankruptcy Code
(a) Section 1123(b)(1)-(2)Claims and Executory Contracts
(b) Section 1123(b)(3)Release, Exculpation, Injunction, Discharge, and Preservation of Claims Provisions
a. The Debtors are proper debtors under section 109 of the Bankruptcy Code and proper proponents of the Plan under section 1121(a) of the Bankruptcy Code.
b. The Debtors have complied with the applicable provisions of the Bankruptcy Code, except as otherwise provided or permitted by orders of this Court.
c. The Debtors have complied with the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy Rules and the Solicitation Procedures Order in transmitting the Plan, the Disclosure Statement, the Ballots, and related documents and notices and in soliciting and tabulating votes on the Plan.
L. Satisfaction of Confirmation Requirements
M. Executory Contracts and Unexpired Leases
N. Adequate Assurance
O. Good Faith
P. Disclosure: Agreements and Other Documents
Q. Transfers by Debtors; Vesting of Assets
R. Likelihood of Satisfaction of Conditions Precedent to Consummation
S. Implementation
T. Rights Offering
U. Approval of the Commitment Letter, the Exit Facility Loans, the Exit Facility Loan Documents, the New TW Loan and the New TW Loan Documents
V. Necessity of Immediate Relief
II. ORDER
BASED ON THE FOREGOING FINDINGS OF FACT, IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT:
A. Order
B. Objections
C. Findings of Fact and Conclusions of Law
D. Confirmation of the Plan
E. The Prepetition Credit Agreement Claims
F. Unexpired Leases and Executory Contracts
G. Bar Date for Rejection Damage Claims and Related Procedures
H. Provisions Governing Distributions
I. Procedures for Resolution of Disputed, Contingent, and Unliquidated Claims
J. The Releases, Injunction, Exculpation, and Related Provisions Under the Plan
K. Post-Confirmation Notices and Deadline for Submission of Professionals Fees
L. Reservation of Causes of Action/Reservation of Rights
M. Substantial Contribution Compensation and Expenses Bar Date
N. Other Administrative Expenses
O. Return Of Deposits
P. Exemption from Securities Laws
Q. Approval of Restated Certificate of Incorporation
R. Approval of Amended and Restated Bylaws
S. Delivery of the New Common Stock
T. Stock Certificates
U. Appointment of Transfer Agent, Registrar and Dividend Disbursing Agent
V. Reservation of Shares
W. Blue Sky Qualifications of the New Common Stock
X. Approval of Registration Rights Agreement
Y. Approval of CUSIP and DTC Procedures
Z. Approval Of Employment, Retirement, Indemnification, And Other Related Agreements And Incentive Compensation Programs.
AA. Exemptions from Taxation
BB. Compliance with Tax Requirements
CC. Separate Confirmation Orders
DD. Filing and Recording
EE. Retention of Jurisdiction
a. to hear and determine pending applications for the assumption or rejection of Executory Contracts or unexpired leases and the allowance of cure amounts and Claims resulting therefrom;
b. to determine any and all adversary proceedings, applications and contested matters;
c. to hear and determine all applications for compensation and reimbursement of expenses under sections 330, 331 and 503(b) of the Bankruptcy Code;
d. to hear and determine any timely objections to, or requests for estimation of Disputed Administrative Expense Claims and Disputed Claims, in whole or in part or disputes related to the distribution of the New Common Stock or cash pursuant hereto and to ensure that the distributions contemplated hereunder are accomplished as provided herein;
e. to enter and implement such orders as may be appropriate in the event the Confirmation Order is for any reason stayed, revoked, modified or vacated;
f. to issue such orders in aid of execution of the Plan, to the extent authorized by section 1142 of the Bankruptcy Code;
g. to consider any amendments to or modifications of the Plan or to cure any defect or omission, or reconcile any inconsistency, in any order of the Court, including, without limitation, the Confirmation Order;
h. to hear and determine disputes or issues arising in connection with the interpretation, implementation or enforcement of the Plan, the Confirmation Order, any transactions or payments contemplated hereby, any agreement, instrument, or other document governing or relating to any of the foregoing or any settlement approved by the Court; provided , however , that any dispute arising under or in connection with the Exit Facility Loans, the New TW Loan and the Equity Purchase Agreements shall be determined in accordance with the forum selection and choice of law provisions contained in the Exit Facility Loan Documents, the New
TW Loan Documents or the Equity Purchase Agreements, as applicable; provided further , that for the avoidance of doubt, the Court shall retain jurisdiction to hear and determine disputes or issues arising in connection with the interpretation, implementation or enforcement of the Conversion Agreement (as defined in the Plan) and the SFO Noteholders Commitment Letter (as defined herein);
i. to hear and determine matters concerning state, local and federal taxes in accordance with sections 346, 505 and 1146 of the Bankruptcy Code (including, without limitation, any request by the Debtors, with the consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld)), prior to the Effective Date or request by the Reorganized Debtors after the Effective Date for an expedited determination of tax under section 505(b) of the Bankruptcy Code);
j. to hear and determine all disputes involving the existence, scope and nature of the discharges granted under the Plan, the Confirmation Order or the Bankruptcy Code;
k. to issue injunctions and effect any other actions that may be necessary or appropriate to restrain interference by any person or entity with the consummation, implementation or enforcement of the Plan, the Confirmation Order or any other order of the Court;
l. to determine such other matters and for such other purposes as may be provided in the Confirmation Order;
m. to hear and determine any rights, Claims or causes of action held by or accruing to the Debtors pursuant to the Bankruptcy Code or pursuant to any federal or state statute or legal theory;
n. to recover all assets of the Debtors and property of the Debtors estates, wherever located;
o. to enter a final decree closing the Reorganization Cases; and
p. to hear any other matter not inconsistent with the Bankruptcy Code;
FF. Commitment Letter, Exit Facility Loans and New TW Loan
GG. Rights Offering
HH. Governing Law
II. Effectiveness of All Actions
JJ. Approval of Consents and Authorization to Take Acts Necessary to Implement Plan
KK. Restructuring Transactions
LL. Make-Whole Claims
MM. Revesting of Assets
NN. Directors and Officers of the Reorganized Debtors
OO. Ownership and Control
PP. Cancellation of Old Security Interests; Issuance of New Equity Interests
QQ. Effect of Conflict Between Plan and Confirmation Order
RR. Operation of the Debtors Between the Confirmation and Effective Date
SS. Authorization to Consummate; Further Transactions
TT. Failure to Consummate the Plan and Substantial Consummation
UU. Immediate Effectiveness; Successors and Assigns
VV. Dissolution of Creditors Committee
WW. Payment of Statutory Fees
XX. Miscellaneous
IT IS SO ORDERED.
Dated: |
April 29, 2010 |
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Wilmington, Delaware |
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/s/ Christopher S. Sontchi |
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UNITED STATES BANKRUPTCY JUDGE |
EXHIBIT A
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In re |
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Chapter 11 |
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Premier International Holdings Inc., et al. , |
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Case No. 09-12019 (CSS) |
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Debtors. |
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(Jointly Administered) |
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DEBTORS MODIFIED FOURTH AMENDED JOINT PLAN OF
REORGANIZATION
UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
Six Flags, Inc. and its affiliated debtors(1) propose the following chapter 11 plan pursuant to section 1121(a) of the Bankruptcy Code:
A. Definitions.
As used in the Plan, the following terms shall have the respective meanings specified below and be equally applicable to the singular and plural of terms defined:
(1) All of the Debtors are identified in Section 1.47 of this Plan.
B. Interpretation; Application of Definitions and Rules of Construction.
Unless otherwise specified, all section, article, schedule or exhibit references in the Plan are to the respective section in, article of or schedule or exhibit, to the Plan or the Plan Supplement, as the same may be amended, waived or modified from time to time. The words herein, hereof, hereto, hereunder and other words of similar import refer to the Plan as a whole and not to any particular section, subsection or clause contained in the Plan. A term used herein that is not defined herein shall have the meaning assigned to that term in the Bankruptcy Code. The rules of construction contained in section 102 of the Bankruptcy Code shall apply to the construction of the Plan. The headings in the Plan are for convenience of reference only and shall not limit or otherwise affect the provisions hereof. In computing any period of time prescribed or allowed by the Plan, unless otherwise expressly provided, the provisions of Bankruptcy Rule 9006(a) shall apply.
Except to the extent that any entity entitled to payment of any Allowed Administrative Expense Claim agrees to a less favorable treatment, each holder of an Allowed Administrative Expense Claim shall receive Cash in an amount equal to such Allowed Administrative Expense Claim on the later of the Effective Date and the date such Administrative Expense Claim becomes an Allowed Administrative Expense Claim, or as soon thereafter as is practicable; provided , however , that Allowed Administrative Expense Claims representing liabilities incurred in the ordinary course of business by the Debtors in Possession shall be paid in full and performed by the Debtors in Possession or Reorganized Debtors, as the case may be, in the ordinary course of business in accordance with the terms and subject to the conditions of any agreements governing, instruments evidencing or other documents relating to such transactions; provided , further , that if any such ordinary course expense is not billed or a request for payment is not made within ninety days after the Effective Date, claims for payment of such an ordinary course expense shall be barred. The reasonable, documented and unpaid fees and expenses of the Backstop Purchasers,
including attorneys fees, shall be Allowed Administrative Expense Claims and shall be paid without the need for further filing of a proof of Claim and without the need for further Bankruptcy Court approval.
Except to the extent that a holder of an Allowed Priority Tax Claim agrees to a different treatment, each holder of an Allowed Priority Tax Claim shall receive, at the option of the Debtors, with the consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), or the Reorganized Debtors, (a) on the Effective Date, or as soon thereafter as is practicable, Cash in an amount equal to such Allowed Priority Tax Claim or, (b) commencing on the Effective Date, or as soon thereafter as is practicable, and continuing over a period not exceeding five (5) years from and after the Petition Date, equal semi-annual Cash payments in an aggregate amount equal to such Allowed Priority Tax Claim, together with interest for the period after the Effective Date at the rate determined under applicable non-bankruptcy law as of the calendar month in which the Plan is confirmed, subject to the option of the Debtors, with the consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), or Reorganized Debtors to prepay the entire amount of the Allowed Priority Tax Claim. All Allowed Priority Tax Claims that are not due and payable on or before the Effective Date shall be paid in the ordinary course of business as such obligations become due.
All entities seeking awards by the Bankruptcy Court of compensation for services rendered or reimbursement of expenses incurred through and including the Confirmation Date under section 330, 331, 503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy Code shall (a) file, on or before the date that is forty-five (45) days after the Effective Date, their respective applications for final allowances of compensation for services rendered and reimbursement of expenses incurred and (b) be paid in full, in Cash, in such amounts as are Allowed by the Bankruptcy Court in accordance with the order relating to or Allowing any such Administrative Expense Claim. The Reorganized Debtors are authorized to pay compensation for professional services rendered and reimbursement of expenses incurred after the Confirmation Date in the ordinary course and without the need for Bankruptcy Court approval.
The following table (i) designates the classes of Claims against and Preconfirmation Equity Interests in the Debtors, (ii) specifies the classes of Claims and Preconfirmation Equity Interests that are Impaired by the Plan and therefore are deemed to reject the Plan or are entitled to vote to accept or reject the Plan in accordance with section 1126 of the Bankruptcy Code, and (iii) specifies the classes of Claims and Preconfirmation Equity Interests that are Unimpaired by the
Plan and therefore are deemed to accept the Plan in accordance with section 1126 of the Bankruptcy Code.
Class |
|
Designation |
|
Impairment |
|
Entitled to Vote |
|
|
|
|
|
|
|
1 |
|
Other Priority Claims |
|
Unimpaired |
|
No (deemed to accept) |
2 |
|
Secured Tax Claims |
|
Unimpaired |
|
No (deemed to accept) |
3 |
|
Other Secured Claims |
|
Unimpaired |
|
No (deemed to accept) |
4 |
|
SFTP Prepetition Credit Agreement Claims |
|
Unimpaired |
|
No (deemed to accept) |
5 |
|
SFTP TW Guaranty Claims |
|
Impaired |
|
Yes |
6 |
|
SFTP Partnership Parks Claims |
|
Unimpaired |
|
No (deemed to accept) |
7 |
|
SFTP and SFTP Subsidiary Unsecured Claims |
|
Unimpaired |
|
No (deemed to accept) |
8 |
|
SFO Prepetition Credit Agreement Claims |
|
Impaired |
|
Yes |
9 |
|
SFO TW Guaranty Claims |
|
Impaired |
|
Yes |
10 |
|
SFO Partnership Parks Claims |
|
Unimpaired |
|
No (deemed to accept) |
11 |
|
SFO Unsecured Claims |
|
Impaired(2) |
|
Yes |
12 |
|
SFI TW Guaranty Claims |
|
Impaired |
|
Yes |
13 |
|
SFI Partnership Parks Claims |
|
Unimpaired |
|
No (deemed to accept) |
14 |
|
SFI Unsecured Claims |
|
Impaired |
|
Yes |
15 |
|
Funtime, Inc. Unsecured Claims |
|
Impaired |
|
No (deemed to reject) |
16 |
|
Subordinated Securities Claims |
|
Impaired |
|
No (deemed to reject) |
17 |
|
Preconfirmation Subsidiary Equity Interests |
|
Unimpaired |
|
No (deemed to accept) |
17A |
|
Preconfirmation SFTP Equity Interests |
|
Unimpaired |
|
No (deemed to accept) |
18 |
|
Preconfirmation SFO Equity Interests |
|
Unimpaired(2) |
|
No (deemed to accept) |
19 |
|
Preconfirmation SFI Equity Interests |
|
Impaired |
|
No (deemed to reject) |
(2) The Debtors reserve the right to re-classify the impairment status of Class 11 and/or Class 18 to the extent any applicable orders of the Bankruptcy Court cause the Debtors to believe that such claims or equity interests are or are not impaired.
(3) The Debtors reserve the right to re-classify the impairment status of Class 11 and/or Class 18 to the extent any applicable orders of the Bankruptcy Court cause the Debtors to believe that such claims or equity interests are or are not impaired.
Distributions under the Plan to each holder of an Allowed Insured Claim shall be in accordance with the treatment provided under the Plan for the Class in which such Allowed Insured Claim is classified, but solely to the extent that such Allowed Insured Claim is within the Debtors self-insured retention. Amounts in excess of the applicable self-insured retention amount shall be recoverable only from the available Insurer and the Debtors shall be discharged to the extent of any such excess. Nothing in this Section 4.21 shall constitute a waiver of any claims, obligations, suits, judgments, damages, demands, debts, rights, causes of action or liabilities that any entity may hold against any other entity, including the Debtors Insurers.
Except as otherwise explicitly provided in this Plan, nothing herein shall be deemed to be a waiver or relinquishment of any rights, counterclaims or defenses the Debtors, the Reorganized Debtors or the Majority Backstop Purchasers may have, whether at law or in equity, with respect to any Unimpaired Claim.
(4) The Debtors reserve the right to re-classify the impairment status of Class 11 and/or Class 18 to the extent any applicable orders of the Bankruptcy Court cause the Debtors to believe that such claims or equity interests are or are not impaired.
Notwithstanding anything to the contrary herein, Intercompany Claims, at the election of the Reorganized Debtors, and with the consent of Time Warner (to the extent adversely affected thereby and which consent shall not be unreasonably withheld) and the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), holding such Claim, shall be (i) adjusted, released, waived and/or discharged as of the Effective Date, (ii) contributed to the capital of the obligor or (iii) Reinstated and left Unimpaired. Any such transaction may be effected on or subsequent to the Effective Date without any further action by the Reorganized Debtors.
(ii) the Offering shall be consummated and the Offering Amount shall be funded in full in Cash as set forth in Section 5.6 of the Plan;
An aggregate amount of $655.5 million (which is the aggregate amount required to be funded pursuant to the Backstop Commitment Agreement, the Direct Equity Purchase, the Additional Equity Purchase and the Delayed Draw Equity Purchase) has been deposited into escrow by the respective Backstop Purchasers, the Direct Equity Purchasers, the Additional Equity Purchasers and the Delayed Draw Equity Purchasers pursuant to the Escrow Agreement; provided , however , that the $25 million of the $655.5 million deposited into escrow shall be released to the Delayed Draw Equity Purchasers upon execution of documents evidencing the Delayed Draw Equity Purchasers obligations under the Delayed Draw Equity Purchase.
Subject to Section 5.4 hereof, and to the maximum extent provided by section 1145 of the Bankruptcy Code and applicable non-bankruptcy law, the issuance under the Plan of the New Common Stock and any other securities pursuant to this Plan and any subsequent sales, resales, transfers or other distributions of such New Common Stock or other securities shall be exempt from registration under the Securities Act, any other federal or state securities law registration requirements, and all rules and regulations promulgated thereunder; provided , however , that New Common Stock issued pursuant to the Offering and the Other Offerings will not be exempt from
registration pursuant to section 1145 of the Bankruptcy Code. Instead, such New Common Stock will be exempt from registration under the Securities Act by virtue of section 4(2) thereof and Regulation D promulgated thereunder. Thus, the New Common Stock being issued in the Offering and the Other Offerings is restricted securities within the meaning of Rule 144 under the Securities Act and accordingly may not be offered, sold, resold, pledged, delivered, allotted or otherwise transferred except in transactions that are exempt from, or in transactions not subject to, the registration requirements of the Securities Act and in compliance with any applicable state securities laws. The New Common Stock issued in the Offering shall bear a legend restricting their transferability until no longer required under applicable requirements of the Securities Act and state securities laws.
On the Effective Date, Reorganized SFI expects to enter into a registration rights agreement (the Registration Rights Agreement ), in form and substance acceptable to the Majority Backstop Purchasers, with each holder of greater than 5%, on a fully diluted basis, of the New Common Stock. Pursuant to the Registration Rights Agreement, holders collectively owning at least 20% of the outstanding shares of the New Common Stock party thereto would have the right to require Reorganized SFI to effect certain registered offerings of such holders New Common Stock acquired pursuant to the Plan or the Offering, on terms and conditions to be negotiated and reflected in such Registration Rights Agreement. Holders of the New Common Stock entitled to demand such registrations shall be entitled to request an aggregate of three (3) such registrations (or such provisions that the Postconfirmation Board adopts), and shall have customary piggyback registration rights. A form of the Registration Rights Agreement will be included in a Plan Supplement. Subject to meeting applicable listing standards, Reorganized SFI will seek to list the New Common Stock issued on the Effective Date for trading on a national securities exchange following the Effective Date.
Except as otherwise provided in the Plan, each Debtor shall continue to exist after the Effective Date as a separate corporate entity, limited liability company, partnership or other form, as the case may be, with all the powers of a corporation, limited liability company, partnership or other form, as the case may be, pursuant to the applicable law in the jurisdiction in which each applicable Debtor is incorporated or formed and pursuant to the respective certificate of incorporation and bylaws (or other formation documents) in effect prior to the Effective Date, except with respect to the Postconfirmation Organizational Documents (or other formation documents) that are amended by the Plan, the Plan Supplement or otherwise, and to the extent such documents are amended, such documents are deemed to be pursuant to the Plan and require no further action or approval. Notwithstanding the foregoing, on or as of the Effective Date, or as soon as practicable thereafter, and without the need for any further action, the Reorganized Debtors may: (i) cause any or all of the Reorganized Debtors to be merged into one or more of the Reorganized Debtors, dissolved or otherwise consolidated, (ii) cause the transfer of assets between or among the Reorganized Debtors, or (iii) engage in any other transaction in furtherance of the Plan.
The SFO Note Guaranty Claim shall be deemed satisfied in full in Cash from the payment to SFO of the SFTP Residual Property and the SFO Cash Payment under the Plan.
Each holder of an Allowed Claim in an Impaired Class of Claims that is entitled to vote on the Plan pursuant to Article III and Article IV of this Plan, shall be entitled to vote separately to accept or reject the Plan, as provided in such order as is entered by the Bankruptcy Court establishing procedures with respect to the solicitation and tabulation of votes to accept or reject the Plan, or any other order of the Bankruptcy Court.
If any impaired Class of Claims entitled to vote shall not accept the Plan by the requisite statutory majority provided in section 1126(c) of the Bankruptcy Code, the Debtors, with the
consent of the Majority Backstop Purchasers, after consultation with the Creditors Committee, (which consent shall not be unreasonably withheld), reserve the right to amend the Plan in accordance with Section 14.4 of this Plan or undertake to have the Bankruptcy Court confirm the Plan under section 1129(b) of the Bankruptcy Code or both. With respect to impaired Classes of claims that are deemed to reject the Plan, the Debtors may request that the Bankruptcy Court confirm the Plan pursuant to section 1129(b) of the Bankruptcy Code.
Distributions with respect to holders of Allowed Unsecured Claims shall only be made on each Distribution Date. All Allowed Unsecured Claims held by a single creditor against a single Debtor shall be aggregated and treated as a single Claim against such Debtor. At the written request of the Reorganized Debtors or the Disbursing Agent, any creditor holding multiple Allowed Unsecured Claims shall provide to the Reorganized Debtors or the Disbursing Agent, as the case may be, a single address to which any distributions shall be sent.
In the event that any payment or act under the Plan is required to be made or performed on a date that is not a Business Day, then the making of such payment or the performance of such act may be completed on the next succeeding Business Day, but shall be deemed to have been completed as of the required date.
All distributions under the Plan shall be made by Reorganized SFI as Disbursing Agent or such other entity designated by Reorganized SFI as a Disbursing Agent. No Disbursing Agent shall be required to give any bond or surety or other security for the performance of its duties.
Except as otherwise ordered by the Bankruptcy Court, any reasonable fees and expenses incurred by the Disbursing Agent (including, without limitation, taxes and reasonable attorneys fees and expenses) on or after the Effective Date shall be paid in Cash by the Reorganized Debtors in the ordinary course of business.
The Disbursing Agent shall be empowered to (a) effect all actions and execute all agreements, instruments and other documents necessary to perform its duties under the Plan, (b) make all distributions contemplated hereby, (c) employ professionals to represent it with respect to its responsibilities and (d) exercise such other powers as may be vested in the Disbursing Agent by order of the Bankruptcy Court, pursuant to the Plan or as deemed by the Disbursing Agent to be necessary and proper to implement the provisions hereof. In furtherance of the rights and powers of the Disbursing Agent, the Disbursing Agent shall have no duty or obligation to make distributions to any holder of an Allowed Claim unless and until such holder executes and delivers, in a form acceptable to the Disbursing Agent, any documents applicable to such distributions.
All distributions under the Plan that are unclaimed for a period of one (1) year after distribution thereof shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code and shall revest in the Reorganized Debtors and any entitlement of any holder of any Claims to such distributions shall be extinguished and forever barred.
The Claims register shall be closed on the Distribution Record Date, and any subsequent transfer of any Claim shall be prohibited. The Debtors and the Reorganized Debtors shall have no obligation to recognize any transfer of any such Claims occurring after the close of business on such date.
At the option of the Disbursing Agent, any Cash payment to be made hereunder may be made by a check or wire transfer or as otherwise required or provided in applicable agreements. All distributions of Cash, New Common Stock and Subscription Rights (as such term is defined in the Offering Procedures), as applicable, to the creditors of each of the Debtors under the Plan shall be made by, or on behalf of, the applicable Debtor.
No fractional shares of New Common Stock shall be distributed and no Cash shall be distributed in lieu of such fractional shares. When any distribution pursuant to the Plan on account of an Allowed Claim would otherwise result in the issuance of a number of shares of New Common Stock that is not a whole number, the actual distribution of shares of New Common Stock shall be rounded as follows: (a) fractions of one-half (½) or greater shall be rounded to the next higher whole number and (b) fractions of less than one-half (½) shall be rounded to the next lower whole number, with no further payment therefor. The total number of authorized shares of New Common Stock to be distributed to holders of Allowed Claims shall be adjusted as necessary to account for the foregoing rounding.
No payment of Cash less than one-hundred dollars ($100) shall be made to any holder of an Allowed Claim unless a request therefor is made in writing to the Reorganized Debtors.
The Debtors may, but shall not be required to, with the consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), setoff against or recoup from any Claim and the payments to be made pursuant to the Plan in respect of such Claim any Claims of any nature whatsoever that the Debtors may have against the claimant, but neither the failure to do so nor the allowance of any Claim hereunder shall constitute a waiver or release by the Debtors or Reorganized Debtors of any such claim they may have against such claimant.
To the extent that any Allowed Claim entitled to a distribution under the Plan consists of indebtedness and other amounts (such as accrued but unpaid interest thereon), such distribution shall be allocated first to the principal amount of the Claim (as determined for federal income tax purposes) and then, to the extent the consideration exceeds the principal amount of the Claim, to such other amounts.
As of the Effective Date, objections to, and requests for estimation of, Administrative Expense Claims and Claims against the Debtors may be interposed and prosecuted only by the Reorganized Debtors. Such objections and requests for estimation shall be served on the respective claimant and filed with the Bankruptcy Court on or before the latest of: (i) one hundred twenty (120) days after the Effective Date or (ii) such later date as may be fixed by the Bankruptcy Court (the Objection Deadline ); provided , however , that with respect to Claims that, as of the Objection Deadline, are subject to a pending claim objection, contested matter, or adversary proceeding (an Initial Objection ) wherein the Reorganized Debtors objection to such claim is ultimately denied, the Objection Deadline shall be extended to the latter of: (a) sixty (60) days from the date on which the Bankruptcy Court enters an order denying such Initial Objection or (b) sixty (60) days from the date on which any appellate court enters a Final Order reversing or vacating an order of the Bankruptcy Court granting such Initial Objection; provided , further , that with respect to Claims that (x) are filed (whether as an amended Claim, new Claim, or otherwise) after the Effective Date, and (y) that are not otherwise subject to adjustment, expunction or disallowance pursuant to Sections 7.2, 7.8, 7.9, 7.11 and 7.12 of this Plan, the Objection Deadline shall be one hundred twenty (120) days after the date on which such Claim was filed. Nothing herein shall affect the Debtors or the Reorganized Debtors ability to amend the Schedules in accordance with the Bankruptcy Code and the Bankruptcy Rules.
Any Claim that has been settled, paid and satisfied, or amended and superseded, may be adjusted or expunged on the Claims register by the Reorganized Debtors without a claims objection having to be filed and without any further notice to or action, order or approval of the Bankruptcy Court. In addition, all Claims filed on account of an employee benefit shall be deemed satisfied and expunged from the Claims register as of the Effective Date to the extent the Reorganized Debtors elect to honor such employee benefit, without any further notice to or action, order or approval of the Bankruptcy Court.
Notwithstanding any other provision hereof, if any portion of a Claim or Administrative Expense Claim is Disputed, no payment or distribution provided hereunder shall be made on account of such Claim or Administrative Expense Claim unless and until such Disputed Claim or Disputed Administrative Expense Claim becomes Allowed.
To the extent that a Disputed Claim or Disputed Administrative Expense Claim ultimately becomes an Allowed Claim or Allowed Administrative Expense Claim, distributions (if any) shall be made to the holder of such Allowed Claim or Allowed Administrative Expense Claim in accordance with the provisions of the Plan.
On and after the Effective Date, the Reorganized Debtors shall have the authority to compromise, settle, otherwise resolve or withdraw any objections to Administrative Expense
Claims and Claims against the Debtors and to compromise, settle or otherwise resolve any Disputed Administrative Expense Claims and Disputed Claims against the Debtors without approval of the Bankruptcy Court.
The Debtors, with the consent of the Majority Backstop Purchasers and Creditors Committee (which consent shall not be unreasonably withheld), or the Reorganized Debtors may at any time request that the Bankruptcy Court estimate any Contingent Claim, Unliquidated Claim or Disputed Claim pursuant to section 502(c) of the Bankruptcy Code regardless of whether any of the Debtors or the Reorganized Debtors previously objected to such Claim or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall retain jurisdiction to estimate any Claim at any time during litigation concerning any objection to any Claim, including, without limitation, during the pendency of any appeal relating to any such objection. In the event that the Bankruptcy Court estimates any Contingent Claim, Unliquidated Claim or Disputed Claim, the amount so estimated shall constitute either the Allowed amount of such Claim or a maximum limitation on such Claim, as determined by the Bankruptcy Court. If the estimated amount constitutes a maximum limitation on the amount of such Claim, the Debtors, with the consent of the Majority Backstop Purchasers and Creditors Committee (which consent shall not be unreasonably withheld), or the Reorganized Debtors may pursue supplementary proceedings to object to the allowance of such Claim. All of the aforementioned objection, estimation and resolution procedures are intended to be cumulative and not exclusive of one another. Claims may be estimated and subsequently compromised, settled, withdrawn or resolved by any mechanism approved by the Bankruptcy Court.
To the extent that a Disputed Claim becomes an Allowed Claim after the Effective Date, the holder of such Claim shall not be entitled to any interest thereon, except as may be required by Final Order, or applicable bankruptcy and non-bankruptcy law.
Any Claims held by Persons from which property is recoverable under section 542, 543, 550, or 553 of the Bankruptcy Code or by a Person that is a transferee of a transfer avoidable under section 522(f), 522(h), 544, 545, 547, 548, 549 or 724(a) of the Bankruptcy Code, shall be deemed disallowed pursuant to section 502(d) of the Bankruptcy Code, and such Persons may not receive any distributions on account of their Claims until such time as such Causes of Action against such Persons have been settled or a Final Order with respect thereto has been entered and all sums due, if any, to the Debtors by that Person have been turned over or paid to the Reorganized Debtors.
Consistent with Bankruptcy Rule 3003(c), the Reorganized Debtors shall recognize proofs of Claim timely filed by any Indenture Trustee in respect of any Claims under the Unsecured Notes Indentures. Accordingly, any Claim arising under the Unsecured Notes Indentures, proof of which is filed by the registered or beneficial holder of Unsecured Notes, shall be disallowed as
duplicative of the Claim of the applicable Indenture Trustee, without any further action of the Bankruptcy Court.
The Reorganized Debtors are authorized to serve upon a holder of a Claim an offer to allow judgment to be taken on account of such Claim, and, pursuant to Bankruptcy Rules 7068 and 9014, Federal Rule of Civil Procedure 68 shall apply to such offer of judgment. To the extent the holder of a Claim must pay the costs incurred by the Reorganized Debtors after the making of such offer, the Reorganized Debtors are entitled, in consultation with the Majority Backstop Purchasers, to set off such amounts against the amount of any distribution to be paid to such holder without any further notice to or action, order or approval of the Bankruptcy Court.
On or after the Effective Date, a Claim may not be filed or amended without the prior authorization of the Bankruptcy Court or the Reorganized Debtors and any such new or amended Claim filed without prior authorization shall be deemed disallowed in full and expunged without any further action.
A Claim shall be disallowed without a Claims objection having to be filed and without any further notice to or action, order or approval of the Bankruptcy Court, to the extent that the holder of such Claim receives payment in full on account of such Claim from a party that is not a Debtor or Reorganized Debtor. No distributions under the Plan shall be made on account of an Allowed Claim that is payable pursuant to one of the Debtors Insurance Policies until the holder of such Allowed Claim has exhausted all remedies with respect to such insurance policy. To the extent that one or more of the Debtors Insurers agrees to satisfy in full a Claim (if and to the extent adjudicated by a court of competent jurisdiction), then immediately upon such Insurers agreement, such Claim may be expunged from the Claims register without a Claims objection having to be filed and without any further notice to or action, order or approval of the Bankruptcy Court.
All Personal Injury Claims are Disputed Claims. No distributions shall be made on account of any Personal Injury Claim unless and until such Claim is liquidated and becomes an Allowed Claim. Any Personal Injury Claim which has not been liquidated prior to the Effective Date and as to which a proof of claim was timely filed in the Reorganization Cases, shall be determined and liquidated in the administrative or judicial tribunal in which it is pending on the Effective Date or, if no action was pending on the Effective Date, in any administrative or judicial tribunal of appropriate jurisdiction.
Pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, all Executory Contracts and unexpired leases that exist between the Debtors and any Person or entity shall be deemed assumed by the Debtors as of the Effective Date, except for any Executory Contract or unexpired lease (1) that has been rejected pursuant to an order of the Bankruptcy Court entered prior to the Effective Date, (2) as to which a motion for approval of the rejection of such Executory Contract or unexpired lease has been filed and served prior to the Effective Date, or (3) that is specifically designated as a contract or lease to be rejected on Schedules 8.1(A) (Executory Contracts) or 8.1(B) (Unexpired Leases), which schedules shall be contained in the Plan Supplement; provided , however , that the Debtors, with the consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), reserve the right, on or prior to the Effective Date, to amend Schedules 8.1(A) and 8.1(B) to delete any Executory Contract or unexpired lease therefrom or add any Executory Contract or unexpired lease thereto, in which event such Executory Contract(s) or unexpired lease(s) shall be deemed to be, respectively, either assumed or rejected as of the Effective Date. The Debtors shall provide notice of any amendments to Schedules 8.1(A) and/or 8.1(B) to the parties to the Executory Contracts and unexpired leases affected thereby. The listing of a document on Schedules 8.1(A) or 8.1(B) shall not constitute an admission by the Debtors, the Reorganized Debtors or the Majority Backstop Purchasers that such document is an Executory Contract or an unexpired lease or that the Debtors have any liability thereunder.
Entry of the Confirmation Order shall, subject to and upon the occurrence of the Effective Date, constitute approval, pursuant to sections 365(a) and 1123(b)(2) of the Bankruptcy Code, of the assumption of the Executory Contracts and unexpired leases assumed pursuant to Section 8.1 of this Plan, and of the rejection of the Executory Contracts and unexpired leases rejected pursuant to Section 8.1 of this Plan.
Unless otherwise specified on Schedules 8.1(A) or 8.1(B) of the Plan Supplement, each Executory Contract and unexpired lease listed or to be listed therein shall include any and all modifications, amendments, supplements, restatements or other agreements made directly or indirectly by any agreement, instrument or other document that in any manner affects such Executory Contract or unexpired lease, without regard to whether such agreement, instrument or other document is listed on Schedules 8.1(A) or 8.1(B).
Except to the extent that a different treatment has been agreed to by the parties, within thirty days after the Effective Date, the Reorganized Debtors shall cure any and all undisputed defaults under any Executory Contract or unexpired lease assumed by the Debtors pursuant to the Plan, in accordance with section 365(b) of the Bankruptcy Code. All disputed defaults that are required to be cured shall be cured either within thirty (30) days of the entry of a Final Order determining the amount, if any, of the Reorganized Debtors liability with respect thereto, or as may otherwise be agreed to by the parties. Notwithstanding Section 8.1 hereof, the Reorganized
Debtors, subject to the consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), shall retain their rights to reject any of the Debtors Executory Contracts or unexpired leases that are the subject of a dispute concerning amounts necessary to cure any defaults, in which event the Reorganized Debtors shall make their election to reject such Executory Contracts and unexpired leases within thirty (30) days of the entry of a Final Order determining the amount required to be cured.
Proofs of Claim for damages arising out of the rejection of an Executory Contract or unexpired lease must be filed with the Bankruptcy Court and served upon the attorneys for the Debtors or, on and after the Effective Date, the Reorganized Debtors, no later than thirty days after the later of (a) notice of entry of an order approving the rejection of such Executory Contract or unexpired lease, (b) notice of entry of the Confirmation Order, (c) notice of an amendment to Schedules 8.1(A) or 8.1(B) of the Plan Supplement (solely with respect to the party directly affected by such modification), or (d) notice of the election of the Debtors or the Reorganized Debtors (subject to the consent of the Majority Backstop Purchasers and Creditors Committee (which consent shall not be unreasonably withheld)) to reject under Section 8.4 of this Plan. All such proofs of Claim not filed within such time shall be forever barred from assertion against the Debtors and their estates or the Reorganized Debtors and their property.
Subject to the occurrence of the Effective Date, the obligations of the Debtors as of the Petition Date to indemnify, defend, reimburse or limit the liability (i) of directors, officers or employees who are directors, officers or employees of the Debtors on or after the Confirmation Date, respectively, against any claims or causes of action as provided in the Debtors articles of organization, certificates of incorporation, bylaws, other organizational documents or applicable law and (ii) arising under the Prepetition Credit Agreement shall survive confirmation of the Plan, remain unaffected thereby and not be discharged, irrespective of whether such indemnification, defense, reimbursement or limitation is owed in connection with an event occurring before or after the Petition Date.
Unless specifically rejected by a prior order of the Bankruptcy Court, all of the Debtors Insurance Policies which are executory, if any, and any agreements, documents or instruments relating thereto, shall be assumed under the Plan. Nothing contained in this Section 8.7 shall constitute or be deemed a waiver of any cause of action that the Debtors or Reorganized Debtors may hold against any entity, including, without limitation, the insurer, under any of the Debtors Insurance Policies.
Notwithstanding anything to the contrary in the Disclosure Statement, this Plan or the Confirmation Order (including, without limitation, any other provision that purports to be preemptory or supervening or grants an injunction or release): (a) nothing therein, amends, modifies, waives or impairs the terms of the insurance policies and agreements and the rights and
obligations of the parties thereunder, (b) the Reorganized Debtors shall be liable for all of the Debtors obligations and liabilities, whether now existing or hereafter arising, under the Insurance Policies and agreements, (c) the claims of the insurers against the Debtors arising under insurance policies and related agreements (i) shall be Allowed Administrative Expense Claims, (ii) shall be due and payable in the ordinary course of business by the Debtors (or after the Effective Date, by the Reorganized Debtors) pursuant to the terms of the insurance policies and agreements and (iii) shall not be discharged or released by the Plan or the Confirmation Order without the requirement to file or serve a request for payment of any Administrative Expense Claim, and (d) nothing therein limits, diminishes, or otherwise alters or impairs the Debtors, Reorganized Debtors and/or the Insurers defenses, claims, causes of action, or other rights under applicable non-bankruptcy law with respect to the insurance policies and related agreements.
Notwithstanding anything contained in the Plan to the contrary, unless rejected by order of the Bankruptcy Court, the Reorganized Debtors shall continue to honor, in the ordinary course of business, the Benefit Plans of the Debtors, including Benefit Plans and programs subject to sections 1114 and 1129(a)(13) of the Bankruptcy Code, entered into before or after the Petition Date and not since terminated.
Unless rejected by order of the Bankruptcy Court, on and after the Effective Date, pursuant to section 1129(a)(13) of the Bankruptcy Code, the Reorganized Debtors shall continue to pay all retiree benefits of the Debtors (within the meaning of and subject to section 1114 of the Bankruptcy Code) for the duration of the period for which the Debtors had obligated themselves to provide such benefits and subject to the right of the Reorganized Debtors to modify or terminate such retiree benefits in accordance with the terms thereof.
On the Effective Date, the management, control and operation of Reorganized SFI and the other Reorganized Debtors shall become the general responsibility of the Postconfirmation Board.
Reorganized SFI shall have a new board of directors, which shall consist of nine (9) directors (three (3) of which shall be independent as defined by the New York Stock Exchange). The
Majority Backstop Purchasers shall select six (6) directors to the Postconfirmation Board (at least one (1) of which shall be independent), and one (1) director, which shall be independent, shall be selected by the Creditors Committee (such selections, in each case, to be made after consideration of preconfirmation directors designated by Mark Shapiro to serve in such capacity). In addition, Mr. Shapiro shall serve as an initial director and shall be entitled to appoint the remaining director; provided , however , that such remaining director shall not be Daniel M. Snyder without the consent of the Majority Backstop Purchasers. Independent directors (including the designation and appointment, or qualification, of a third independent director), to the extent required by the New York Stock Exchange, shall be qualified to serve on Reorganized SFIs audit committee. All directors on the Postconfirmation Board shall stand for election annually. The individuals selected by the Majority Backstop Purchasers and the Creditors Committee to serve on the initial Postconfirmation Board shall be listed in the Plan Supplement.
On the Effective Date, or as soon thereafter as practicable, to the extent necessary, the Reorganized Debtors will file their Postconfirmation Organizational Documents, as required or deemed appropriate, with the appropriate Persons in their respective jurisdictions of incorporation or establishment.
The officers of the Debtors immediately prior to the Effective Date will serve as the initial officers of the Reorganized Debtors on and after the Effective Date. Such officers will serve in accordance with applicable non-bankruptcy law, any employment agreement with the Reorganized Debtors and the Postconfirmation Organizational Documents. Mr. Shapiros Employment Agreement shall be amended and restated prior to the Effective Date (in the form attached hereto as Exhibit B), and such amended and restated employment agreement shall be assumed by the Debtors and become effective as of the Effective Date. The Employment Agreements, other than Mr. Shapiros, shall be amended prior to the Effective Date (in the respective forms attached hereto as Exhibit C), and such amended employment agreements shall be assumed by the Debtors and become effective as of the Effective Date.
As of the Effective Date, the Debtors shall implement a management incentive plan for management, selected employees and directors of Reorganized SFI, providing incentive compensation in the form of stock options and/or restricted stock in Reorganized SFI equal to 15% of the New Common Stock, determined on a fully diluted basis (calculated as of the Effective Date after giving effect to the issuance of all New Common Stock hereunder, including, but not limited to, the Offering and the Other Offerings (including the Delayed Draw Equity Purchase)), comprised of at least 5% in the form of restricted stock and up to 10% in the form of options, the vesting and allocation of which shall be determined by mutual agreement of the chief executive officer of Reorganized SFI and the Postconfirmation Board.
The solicitation of votes on the Plan will include, and will be deemed to be, a solicitation for approval of the Long-Term Incentive Plan and the initial grants made thereunder. Entry of the Confirmation Order will constitute approval of the Long-Term Incentive Plan.
In addition to the Reorganized Debtors assuming all existing common law, contractual, and statutory indemnification obligations, including, without limitation, those included in the constitutive documents, of the Debtors in favor of the directors and officers as described in Section 8.2 of this Plan, the Reorganized Debtors may purchase director and officer liability insurance for the directors and officers of the Reorganized Debtors (in form and substance satisfactory to the Postconfirmation Board).
On the Effective Date and as reflected in the Postconfirmation Organizational Documents, Reorganized SFI shall be named Six Flags Entertainment Corporation.
The Effective Date shall not occur and the Plan shall not become effective unless and until the following conditions are satisfied in full or waived in accordance with Section 11.2 of this Plan:
Each of the conditions precedent in Section 11.1 hereof may be waived, in whole or in part, by the Debtors with the prior written consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld) and after consultation with the Creditors Committee; provided that (a) in no event shall the conditions set forth in clauses (a)(i) and (b) of Section 11.1 be waived without the consent of Time Warner (with respect to clause (b), only to the extent set forth in the New TW Loan Documents). Any such waivers may be effected at any time, without notice, without leave or order of the Bankruptcy Court and without any formal action on the part of the Bankruptcy Court.
Except as expressly provided or permitted in the Plan, any actions required to be taken on the Effective Date shall take place and shall be deemed to have occurred simultaneously, and no such action shall be deemed to have occurred prior to the taking of any other such action. In the event that one or more of the conditions specified in Section 11.1 hereof have not occurred or otherwise been waived pursuant to Section 11.2 hereof, (a) the Confirmation Order shall be vacated, (b) the Debtors and all holders of Claims and interests, including any Preconfirmation Equity Interests, shall be restored to the status quo ante as of the day immediately preceding the Confirmation Date as though the Confirmation Date never occurred and (c) the Debtors obligations with respect to Claims and Preconfirmation Equity Interests shall remain unchanged and nothing contained herein shall constitute or be deemed a waiver or release of any Claims or Preconfirmation Equity Interests by or against the Debtors or any other person or to prejudice in any manner the rights of the Debtors or any person in any further proceedings involving the Debtors.
On the Effective Date, pursuant to sections 1141(b) and (c) of the Bankruptcy Code, the Debtors, their properties and interests in property and their operations shall be released from the custody and jurisdiction of the Bankruptcy Court, and all property of the estates of the Debtors shall vest in the Reorganized Debtors free and clear of all Claims, Liens, encumbrances, charges and other interests, except as provided in the Plan. From and after the Effective Date, the Reorganized Debtors may operate their business and may use, acquire and dispose of property free of any restrictions of the Bankruptcy Code, the Bankruptcy Rules or the Local Bankruptcy Rules, subject to the terms and conditions of the Plan.
Subject to the occurrence of the Effective Date, on and after the Confirmation Date, the provisions of the Plan shall bind any holder of a Claim against, or Preconfirmation Equity Interest in, the Debtors and such holders respective successors and assigns, whether or not the Claim or interests, including any Preconfirmation Equity Interest, of such holder is Impaired under the Plan, whether or not such holder has accepted the Plan and whether or not such holder is entitled to a distribution under the Plan.
Except as provided in the Plan, the rights afforded in and the payments and distributions to be made under the Plan shall terminate all Preconfirmation SFI Equity Interests, and discharge all existing debts and Claims of any kind, nature or description whatsoever against or in the Debtors or any of their assets or properties to the fullest extent permitted by section 1141 of the Bankruptcy Code. Except as provided in the Plan, upon the Effective Date, all existing Claims against the Debtors and all Preconfirmation SFI Equity Interests shall be, and shall be deemed to be, discharged and terminated, and all holders of such Claims and Preconfirmation SFI Equity Interests shall be precluded and enjoined from asserting against the Reorganized Debtors, their successors or assignees or any of their assets or properties, any other or further Claim or Preconfirmation SFI Equity Interest based upon any act or omission, transaction or other activity of any kind or nature that occurred prior to the Effective Date, whether or not such holder has filed a proof of Claim or proof of interest and whether or not the facts or legal bases therefor were known or existed prior to the Effective Date.
Upon the Effective Date, in consideration of the distributions to be made under the Plan and except as otherwise expressly provided in the Plan, each holder (as well as any trustees and agents on behalf of each holder) of a Claim or Preconfirmation SFI Equity Interest and any Affiliate of such holder shall be deemed to have forever waived, released and discharged the Debtors, to the fullest extent permitted by section 1141 of the Bankruptcy Code, of and from any and all Claims, Preconfirmation SFI Equity Interests, Preconfirmation SFO Equity Interests and Preconfirmation SFTP Equity Interests, as the case may be, that arose prior to the Effective Date. Upon the Effective Date, all such Persons shall be forever precluded and enjoined, pursuant to section 524 of the Bankruptcy Code, from prosecuting or asserting any such discharged Claim against or terminated Preconfirmation SFI Equity Interests in the Debtors.
Except as expressly released or exculpated hereunder, nothing contained in the Plan shall be deemed to be a waiver or the relinquishment of any rights or Causes of Action that the Debtors, the Reorganized Debtors or the Majority Backstop Purchasers may have or may choose to assert against any Person.
None of the Exculpated Parties, and the Exculpated Parties respective current or former officers, directors, employees, accountants, financial advisors, investment bankers, agents, restructuring advisors and attorneys, and each of their respective agents and representatives (but, in each case, solely in connection with their official capacities in the Reorganization Cases), shall have or incur any liability for any Claim, cause of action or other assertion of liability for any act taken or omitted to be taken in connection with, or arising out of, the Reorganization Cases, the formulation, dissemination, confirmation, consummation or administration of the Plan, property to be distributed under the Plan or any other act or omission in connection with the Reorganization Cases, the Plan, the Disclosure Statement or any contract, instrument, document or other agreement related thereto; provided , however , that the foregoing shall not affect the liability of any Person that otherwise would result from any such act or omission to the extent such act or omission is determined by a Final Order to have constituted willful misconduct or gross negligence.
Except as otherwise expressly provided or contemplated by the Plan, the Plan Supplement or the Confirmation Order, effective as of the Confirmation Date but subject to the occurrence of the Effective Date, and in consideration of the services of and other forms of consideration being provided by (a) the Debtors; (b) the Prepetition Agent; (c) the Prepetition Lenders; (d) the Backstop Purchasers; (e) the Additional Equity Purchasers; (f) the Direct Equity Purchasers; (g) the Conversion Purchasers; (h) the Delayed Draw Equity Purchasers; (i) the SFI Noteholder Committee; (j) each Indenture Trustee; (k) the Exit Facility Lenders; (l) Time Warner, other than claims arising from or with respect to ordinary course of business arrangements among SFI and its affiliates, on the one hand, and Time Warner, on the other hand, including without limitation, advertising, marketing, or similar commercial arrangements and any trade payables with respect thereto; (m) the Creditors Committee and present or former members of the Creditors Committee (but solely in their capacity as such); and (n) for subsections (a) through (m), each of their respective present and former directors, officers, members, employees, affiliates, agents, financial advisors, restructuring advisors, attorneys and representatives who acted in such capacities after the Petition Date (the parties set forth in subsections (a) through (n), being the Released Parties ), the Debtors, their respective chapter 11 estates and the Reorganized Debtors and all holders of Claims that accept the Plan or are deemed to accept the Plan shall release, waive and discharge unconditionally and forever each of the Released Parties from any and all Claims, obligations, suits, judgments, damages, rights, causes of action and liabilities whatsoever (including those arising under the Bankruptcy Code), whether known or unknown, foreseen or unforeseen, existing or hereinafter arising in law, equity, or otherwise, based in whole or in part on any act, omission, transaction, event or other occurrence: (i) taking place before the Petition Date in connection with or relating to any of the Debtors or any of their direct or indirect subsidiaries; and (ii) in connection with, related to, or arising out of these Reorganization Cases, the pursuit of confirmation of the Plan, the consummation thereof, the administration thereof or the property to be distributed thereunder; provided that the foregoing shall not operate as a waiver of or release from any causes of action arising out of the willful misconduct or the gross negligence of any Released Party unless such Released Party acted in good faith and in a manner that such Released Party reasonably believed to be in or not opposed to the
best interests of the Debtors, and with respect to any criminal action or proceeding, had no reasonable cause to believe such Released Partys conduct was unlawful; provided , however , that the foregoing shall not operate as a waiver or release of any rights or obligations arising from and after the Effective Date in respect of any agreements entered into or reaffirmed hereunder as of or following the Effective Date.
Other than any releases granted herein, by the Confirmation Order and by Final Order of the Bankruptcy Court, as applicable, from and after the Effective Date, the Reorganized Debtors shall have the right to prosecute any and all avoidance or equitable subordination actions, recovery causes of action and objections to Claims under sections 105, 502, 510, 542 through 551, and 553 of the Bankruptcy Code that belong to the Debtors or Debtors in Possession.
Except as otherwise expressly provided in the Plan or in the Confirmation Order, all Persons or entities who have held, hold or may hold Claims against, or Preconfirmation SFI Equity Interests in, the Debtors are permanently enjoined, from and after the Effective Date, from (a) commencing or continuing in any manner any action or other proceeding of any kind on any such Claim or Preconfirmation SFI Equity Interest against any of the Reorganized Debtors or any of the Released Parties, to the extent of the release provided for in Section 12.7 hereof, (b) the enforcement, attachment, collection or recovery by any manner or means of any judgment, award, decree or order against any Reorganized Debtor or any of the Released Parties, to the extent of the release provided for in Section 12.7 hereof, with respect to such Claim or Preconfirmation SFI Equity Interest, (c) creating, perfecting or enforcing any encumbrance of any kind against any Reorganized Debtor or any of the Released Parties, to the extent of the release provided in Section 12.7 hereof, or against the property or interests in property of any Reorganized Debtor or any of the Released Parties with respect to such Claim or Preconfirmation SFI Equity Interest, (d) asserting any right of setoff, subrogation or recoupment of any kind against any obligation due to any Reorganized Debtor or any of the Released Parties, to the extent of the release provided in Section 12.7 hereof, or against the property or interests in property of any Reorganized Debtor or any of the Released Parties with respect to such Claim or Preconfirmation SFI Equity Interest and (e) pursuing any Claim released pursuant to the Plan.
Unless otherwise provided in the Confirmation Order, all injunctions or stays arising under or entered during the Reorganization Cases under section 105 or 362 of the Bankruptcy Code, or otherwise, that are in existence on the Confirmation Date shall remain in full force and effect until the Effective Date; provided , however , that no such injunction or stay shall preclude enforcement of parties rights under the Plan and the related documents.
The Bankruptcy Court shall have exclusive jurisdiction of all matters arising out of, or related to, the Reorganization Cases and the Plan pursuant to, and for the purposes of, sections 105(a) and 1142 of the Bankruptcy Code, including, without limitation:
On or before the Effective Date, and without the need for any further order or authority, the Debtors shall file with the Bankruptcy Court or execute, as appropriate, such agreements and other documents that are in form and substance reasonably satisfactory to the Majority Backstop Purchasers, after consultation with the Creditors Committee, as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan (which consent shall not be unreasonably withheld, except with respect to any provision in the Plan or action or inaction of the Debtors pursuant to the Plan under which the consent rights of the Majority Backstop Purchasers are not subject to a reasonableness requirement, in which case the consent of the Majority Backstop Purchasers shall not be subject to a reasonableness requirement). The Reorganized Debtors are authorized to execute, deliver, file, or record such contracts, instruments, releases, indentures and other agreements or documents and take such actions as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan and any securities issued pursuant to the Plan.
In connection with the Plan and all instruments issued in connection therewith and distributed thereon, any party issuing any instrument or making any distribution under the Plan shall comply with all applicable withholding and reporting requirements imposed by any federal, state or local
taxing authority, and all distributions under the Plan shall be subject to any such withholding or reporting requirements. Notwithstanding the above, each holder of an Allowed Claim that is to receive a distribution under the Plan shall have the sole and exclusive responsibility for the satisfaction and payment of any tax obligations imposed on such holder by any governmental unit, including income, withholding and other tax obligations, on account of such distribution. Any party issuing any instrument or making any distribution under the Plan has the right, but not the obligation, to not make a distribution until such holder has made arrangements satisfactory to such issuing or disbursing party for payment of any such tax obligations.
On the Effective Date, all matters provided for under the Plan that would otherwise require approval of the managers or directors of one or more of the Debtors or Reorganized Debtors, as the case may be, shall be in effect from and after the Effective Date pursuant to the applicable general corporation law of the states in which the Debtors or the Reorganized Debtors are incorporated or established, without any requirement of further action by the managers or directors of the Debtors or the Reorganized Debtors. On the Effective Date, or as soon thereafter as is practicable, the Reorganized Debtors shall, if required, file their amended articles of organization or certificates of incorporation, as the case may be, with the Secretary of State of the state in which each such entity is (or shall be) organized, in accordance with the applicable general business law of each such jurisdiction.
Alterations, amendments or modifications of or to the Plan may be proposed in writing by the Debtors at any time prior to the Confirmation Date, but only after consultation with and consent to such alteration, amendment or modification by Time Warner (to the extent set forth in the New TW Loan Documents) and the Majority Backstop Purchasers, after consultation with the Creditors Committee, (which consent shall not be unreasonably withheld); provided , however , that the Plan, as altered, amended or modified satisfies the conditions of sections 1122 and 1123 of the Bankruptcy Code and the Debtors have complied with section 1125 of the Bankruptcy Code. The Plan may be altered, amended or modified at any time after the Confirmation Date and before substantial consummation, but only after consultation with and consent to such alteration, amendment or modification by Time Warner (to the extent set forth in the New TW Loan Documents) and the Majority Backstop Purchasers, after consultation with the Creditors Committee, (which consent shall not be unreasonably withheld); provided , further , that the Plan, as altered, amended or modified, satisfies the requirements of sections 1122 and 1123 of the Bankruptcy Code, and the Bankruptcy Court, after notice and a hearing, confirms the Plan, as altered, amended or modified, under section 1129 of the Bankruptcy Code and the circumstances warrant such alterations, amendments or modifications. A holder of a Claim that has accepted the Plan will be deemed to have accepted the Plan, as altered, amended or modified, if the proposed alteration, amendment or modification does not materially and adversely change the treatment of the Claim of such holder.
Prior to the Effective Date, the Debtors , with the consent of Time Warner (to the extent set forth in the New TW Loan Documents) and the Majority Backstop Purchasers, after consultation with the Creditors Committee, (which consent shall not be unreasonably withheld) , may make appropriate technical adjustments and modifications to the Plan without further order or approval
of the Bankruptcy Court, provided that such technical adjustments and modifications do not adversely affect in a material way the treatment of holders of Claims or Preconfirmation Equity Interests.
The Debtors , with the consent of Time Warner (to the extent set forth in the New TW Loan Documents) and the Majority Backstop Purchasers, after consultation with the Creditors Committee (which consent shall not be unreasonably withheld), reserve the right to revoke or withdraw the Plan prior to the Confirmation Date. If the Debtors revoke or withdraw the Plan with respect to any one or more of the Debtors in accordance with this Section 14.5, or if the Effective Date does not occur as to any Debtor, then, as to such Debtor, the Plan and all settlements and compromises set forth in the Plan and not otherwise approved by a separate Final Order shall be deemed null and void. In such event, nothing contained herein shall constitute or be deemed a waiver or release of any Claims or Preconfirmation Equity Interests by or against the Debtors or any other Person or to prejudice in any manner the rights of the Debtors or any person in any further proceedings involving the Debtors.
Any Plan Supplement and the documents contained therein shall be in form, scope and substance satisfactory to the Debtors, with the consent of Time Warner (to the extent set forth in the New TW Loan Documents) and the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), and shall be filed with the Bankruptcy Court no later than five (5) Business Days before the date scheduled for hearing on confirmation of the Plan, provided that the documents included therein may thereafter be amended and supplemented, subject to the consent of Time Warner (to the extent set forth in the New TW Loan Documents) and the Majority Backstop Purchasers, after consultation with the Creditors Committee, (which consent shall not be unreasonably withheld), prior to execution, so long as no such amendment or supplement materially affects the rights of holders of Claims. The Plan Supplement and the documents contained therein are incorporated into and made a part of the Plan as if set forth in full herein.
On or before the Effective Date, all fees payable under section 1930 of chapter 123 of title 28 of the United States Code shall be paid in Cash. Following the Effective Date, all such fees shall be paid by the applicable Reorganized Debtor until the earlier of the conversion or dismissal of the applicable Reorganization Case under section 1112 of the Bankruptcy Code, or the closing of the applicable Reorganization Case pursuant to section 350(a) of the Bankruptcy Code.
On the Effective Date, except as provided below, the Creditors Committee shall be dissolved and the members thereof shall be released and discharged of and from all further authority, duties, responsibilities and obligations related to and arising from and in connection with the Reorganization Cases, and the retention or employment of the Creditors Committees attorneys, accountants and other agents, if any, shall terminate, except for (i) purposes of filing and
prosecuting applications for final allowances of compensation for professional services rendered and reimbursement of expenses incurred in connection therewith, and (ii) participating in any appeal of the Confirmation Order which may be filed by a party other than the Creditors Committee. On or before the Effective Date, the Creditors Committee shall dismiss, with prejudice, its pending appeal of the Bankruptcy Courts order denying its request to compel disclosure from the informal committee of holders of the 2016 Notes under Bankruptcy Rule 9019.
Pursuant to section 1146(a) of the Bankruptcy Code, the issuance, transfer or exchange of notes or equity securities under or in connection with the Plan, the creation of any mortgage, deed of trust or other security interest, the making or assignment of any lease or sublease or the making or delivery of any deed or other instrument of transfer under, in furtherance of, or in connection with the Plan, including, without limitation, the issuance of the New Common Stock, any merger agreements or agreements of consolidation, deeds, bills of sale or assignments executed in connection with any of the transactions contemplated under the Plan shall not be subject to any stamp, real estate transfer, mortgage recording or other similar tax.
The Debtors, with the consent of the Majority Backstop Purchasers (which consent shall not be unreasonably withheld), and the Reorganized Debtors are authorized to request an expedited determination of taxes under section 505(b) of the Bankruptcy Code for any or all returns filed for, or on behalf of, the Debtors for any and all taxable periods (or portions thereof) ending after the Petition Date through and including the Effective Date.
All exhibits and schedules to the Plan, including the Plan Supplement, are incorporated into and are a part of the Plan as if set forth in full herein.
On the Effective Date, the Plan shall be deemed to be substantially consummated under sections 1101 and 1127(b) of the Bankruptcy Code.
In the event that, prior to the Confirmation Date, any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void or unenforceable, the Bankruptcy Court shall, at the request of the Debtors, subject to the consent of Time Warner (to the extent set forth in the New TW Loan Documents) and the Majority Backstop Purchasers (which consent shall not be unreasonably withheld, except with respect to any provision in the Plan or action or inaction of the Debtors pursuant to the Plan under which the consent rights of the Majority Backstop Purchasers are not subject to a reasonableness requirement, in which case the consent of the Majority Backstop Purchasers shall not be subject to a reasonableness requirement), have the power to alter and interpret such term or provision to make it valid or enforceable to the
maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void or unenforceable, and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration or interpretation, the remainder of the terms and provisions of the Plan shall remain in full force and effect and shall in no way be affected, impaired or invalidated by such holding, alteration or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and enforceable in accordance with its terms.
Except to the extent that the Bankruptcy Code or other federal law is applicable, or to the extent an exhibit to the Plan or Plan Supplement provides otherwise (in which case the governing law specified therein shall be applicable to such exhibit), the rights, duties, and obligations arising under the Plan shall be governed by, and construed and enforced in accordance with, the laws of the State of New York without giving effect to its principles of conflict of law.
Except as set forth in this Plan, to the extent that any provision of the Disclosure Statement conflicts with or is in, any way inconsistent with any provision of the Plan, the Plan shall govern and control.
All notices, requests and demands to or upon the Debtors and the Majority Backstop Purchasers must be in writing (including by facsimile transmission) to be effective and, unless otherwise expressly provided under the Plan, will be deemed to have been duly given or made when actually delivered or, in the case of notice by facsimile transmission, when received and telephonically confirmed, addressed as follows:
SIX FLAGS, INC.
1540 Broadway
New York, NY 10036
Attn: James Coughlin
Telephone: (212) 652-9380
Facsimile: (212) 354-3089
with a copy to:
On behalf of the Debtors
PAUL, HASTINGS, JANOFSKY &
WALKER LLP
191 North Wacker Drive, 30th Floor
Chicago, Illinois 60606
Telephone: (312) 499 -6000
Facsimile: (312) 499-6100
Attn: Paul E. Harner
Steven T. Catlett
- and -
PAUL, HASTINGS, JANOFSKY &
WALKER LLP
75 East 55th Street
New York, New York 10022
Telephone: (212) 318-6000
Facsimile: (212) 319-4090
Attn: William F. Schwitter
- and -
RICHARDS, LAYTON &
FINGER, PA.
One Rodney Square
920 North King Street
Wilmington, Delaware 19801
Telephone: (302) 651-7700
Facsimile: (302) 651-7701
Attn: Daniel J. DeFranceschi
- and -
On behalf of the Majority Backstop Purchasers
WHITE & CASE,
LLP
Wachovia Financial Center
200 South Biscayne
Boulevard, Suite 4900
Miami, Florida 33131
Telephone: (305) 371-2700
Facsimile: (305) 358-5744
Attn: Thomas E Lauria
John K. Cunningham
-and-
BAYARD, P.A.
222 Delaware Avenue, Suite 900
Wilmington, Delaware 19801
Telephone: (302) 655-5000
Facsimile: (302) 658-6395
Attn: Neil Glassman
GianClaudio Finizio
On behalf of the Official Committee of Unsecured Creditors
BROWN RUDNICK LLP
One Financial Center
Boston, MA 02111
Telephone: (617) 856-8587
Attn: Steven B. Levine
- and
BROWN RUDNICK LLP
Seven Times Square
New York, NY 10036
Attn: Andrew S. Dash
Dated: April 1, 2010
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Six Flags, Inc., et al. |
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(for itself and on behalf of each of the other Debtors) |
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By: |
/s/ Jeffrey R. Speed |
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Name: |
Jeffrey R. Speed |
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Title: |
Chief Financial Officer |
Exhibit A
AMENDED AND RESTATED ESCROW AGREEMENT
THIS AMENDED AND RESTATED ESCROW AGREEMENT (as the same may be amended or modified from time to time pursuant hereto, this Escrow Agreement) is made and entered into as of March 29, 2010, by and among the parties listed on Schedule I hereto (collectively, the Backstop Parties) and Wilmington Trust FSB (the Escrow Agent). Capitalized terms used herein, but not otherwise defined shall have the meanings ascribed to such terms in the Equity Commitment Agreement (as defined below). Immediately upon the execution by the Backstop Parties and the Escrow Agent of this Escrow Agreement, each and all of the terms and conditions of the agreement (the Original Escrow Agreement), dated March 18, 2010 shall be amended and restated in their entirety as set forth herein and the Original Escrow Agreement shall be terminated and shall be of no further force or effect.
WHEREAS , the Backstop Parties have agreed to deposit in escrow certain funds in accordance with the terms of that certain Amended Equity Commitment Agreement (the Equity Commitment Agreement), dated March 18, 2010, by and among the Backstop Parties and Six Flags, Inc. (the Debtor), and wish such deposit to be subject to the terms and conditions set forth herein.
NOW THEREFORE , in consideration of the foregoing and of the mutual covenants hereinafter set forth, the parties hereto agree as follows:
1. Appointment . Under the Original Escrow Agreement, the Backstop Parties appointed the Escrow Agent as their escrow agent for the purposes set forth therein. The Backstop Parties hereby reaffirm such appointment for the purposes set forth herein and the Escrow Agent hereby accepts such appointment under the terms and conditions set forth herein.
2. Fund. Pursuant to the Original Escrow Agreement, each Backstop Party agreed to deposit and deposited into an escrow account (the Escrow Account) with the Escrow Agent (i) the amount set forth opposite its name under the column entitled Offering Amount on Schedule I hereto, which in the aggregate for all Backstop Parties totals $505,500,000 (the Offering Amount), (ii) the amount, if any, set forth opposite its name under the column entitled Direct Purchase Amount on Schedule I hereto, which in the aggregate for all Backstop Parties totals $75,000,000 (the Direct Purchase Amount), (iii) the amount, if any, set forth opposite its name under the column entitled Additional Direct Purchase Amount on Schedule I hereto, which in the aggregate for all Backstop Parties totals $50,000,000 (the Additional Direct Purchase Amount) and (iv) the amount, if any, set forth opposite its name under the column entitled Delayed Draw Amount on Schedule I hereto, which in the aggregate totals $25,000,000 (the Delayed Draw Amount and collectively with the Offering Amount, the Direct Purchase Amount
and the Additional Direct Purchase Amount, the Escrow Deposit). Schedule I hereto also sets forth the aggregate amount contributed by each Backstop Party to the Escrow Deposit (the Aggregate Amount Per Backstop Party). The Escrow Agent shall hold the Escrow Deposit, which shall total $655,500,000 and, subject to the terms and conditions hereof, shall invest and reinvest the Escrow Deposit and the proceeds thereof (the Fund) as directed in Section 5. Upon deposit of the Escrow Deposit, the Escrow Agent acknowledged receipt of such deposit by delivery of a written notice to Pentwater Capital Management LP, the representative of the Backstop Parties (the Backstop Parties Representative).
3. Delayed Draw Equity Commitment Agreement. The Backstop Parties who have committed a portion of the Delayed Draw Amount agree to deliver to the Escrow Agent a copy of a definitive agreement finalizing the terms of the Delayed Equity Draw Commitment pursuant to the Equity Commitment Agreement (the Delayed Draw Equity Commitment Agreement) executed by such Backstop Parties. Upon such delivery, the Escrow Agent shall hold the signature pages of such Backstop Parties to the Delayed Draw Equity Commitment Agreement in escrow until it is released pursuant to the terms of Section 6.
4. Funds Not Subject to Bankruptcy Estates . The Backstop Parties intend and agree that the Fund will not be considered property of the bankruptcy estates of the Debtor or any of its affiliates, will not be subject to the bankruptcy estates of the Debtor or any of its affiliates in the Debtors proceedings under the Bankruptcy Code and will not be subject to the jurisdiction or control of the Bankruptcy Court, any bankruptcy trustee or the creditors of the Debtor or any of its affiliates.
5. Investment of Fund. The Escrow Agent shall hold the Escrow Deposit until March 29, 2010 in a non-interest bearing demand deposit account with the Escrow Agent, which account is covered by FDIC insurance for the entire balance in the account through June 30, 2010 under the Transaction Account Guarantee Program under the FDICs Temporary Liquidity Guarantee Program and is thereafter instructed to invest the Escrow Deposit in the Federated Government Obligations Fund (Institutional Service Shares); provided that if prior to March 29, 2010, the Escrow Agent has received written instructions from the Backstop Parties Representative to direct the Escrow Deposit into a different FDIC insured account, whether within the Escrow Agent or with a different FDIC insured institution, the Escrow Agent shall promptly act in accordance with such instructions; provided, further, that, notwithstanding the foregoing, the portion of the Escrow Deposit contributed by Kivu Investment Fund Limited, CQS Convertible and Quantitative Strategies Master Fund Limited and CQS Directional Opportunities Master Fund Limited (collectively, the CQS Funds) shall be deposited back into an FDIC insured account as soon as reasonably practical after March 31, 2010. The Backstop Parties agree to pay the Escrow Agent within ten Business Days of receipt of written demand thereof an amount equal to the FDIC insurance premiums required to be paid by the Escrow Agent in respect of the Fund for the period in which the Fund was held in an FDIC insured account (it being understood that such premiums are 5 basis points of the cash principal amount of the Fund calculated on the last day of each calendar quarter with respect to the cash principal amount of the Fund on such date); provided that, to the
extent that only the CQS Funds are held in an FDIC insured account, the Backstop Parties that contributed such funds shall pay any resulting FDIC insurance premiums required to be paid by the Escrow Agent in respect of such period. Each Backstop Party acknowledges that shares in the mutual fund are not obligations of Wilmington Trust FSB or Wilmington Trust Corporation, are not deposits and are not insured by the FDIC. The Escrow Agent or its affiliate may be compensated by the mutual fund for services rendered in its capacity as investment advisor, or other service provider, such as provider of shareholder servicing and distribution services, and such compensation is both described in detail in the prospectus for the fund, and is in addition to the compensation, if any, paid to Wilmington Trust FSB in its capacity as Escrow Agent hereunder. Any income received or losses incurred as a result of investments of the Escrow Deposit pursuant to this Section 5 shall be added to the Fund and disbursed in accordance with Section 6, provided that, to the extent the portion of the Fund contributed by each Backstop Purchaser is invested in income bearing accounts or instruments, each such Backstop Party shall receive its pro rata portion of such income in accordance with the commitment percentage of each Backstop Party calculated by dividing the portion of the Aggregate Amount Per Backstop Party invested in such income bearing accounts or instruments by the total amount of the Escrow Deposit invested in such income bearing accounts or instruments (each such percentage to be set forth on Schedule I hereto, an Aggregate Amount Commitment Percentage). Monthly statements will be provided to the Backstop Parties Representative reflecting transactions executed in connection with the investment of the Escrow Deposit.
6. Disposition and Termination . (a) The Escrow Agent shall release funds from the Fund in accordance with the following:
(i) the Escrow Agent shall promptly release to each Backstop Party, by wire transfer of immediately available funds to the account designated by each such Backstop Party in accordance with Schedule I attached hereto, such Backstop Partys Aggregate Amount Per Backstop Party upon the occurrence of the following events:
(A) within one Business Day (as defined below) following receipt of a certificate from the Backstop Parties Representative stating that the Equity Commitment Agreement has terminated in accordance with its terms;
(B) within one Business Day following receipt of a certificate from the Backstop Parties Representative stating that three days have elapsed from the entry by the Bankruptcy Court of an order allowing the claims asserted by the indenture trustee for the SFO Notes for make-whole, prepayment, no-call or other similar claims or damages;
(C) within one Business Day following April 19, 2010, unless prior to such date the Escrow Agent has received a certificate from the Backstop Parties Representative stating that the Debtor has executed the Equity Commitment Agreement or the court has granted the Backstop Parties Motion to Terminate Exclusivity; or
(D) within one Business Day following May 17, 2010, unless prior to such date the Fund was released by the Escrow Agent in accordance with Section 6(a)(ii) below.
(ii) unless previously released pursuant to Section 6(a)(i) above, on the Effective Date (which shall be communicated to the Escrow Agent at lease one day prior to such date), (A) the amount of the Offering (as such terms is defined in the Equity Commitment Agreement) that is not, or cannot be subscribed for and purchased prior to the relevant subscription expiration date of the Offering (the Unsubscribed Offering Amount), (B) the Direct Purchase Amount, and (C) the Additional Direct Purchase Amount shall be released to the subscription agent (the Subscription Agent) designated by the Backstop Parties in connection with the Offering following receipt by the Escrow Agent from the Backstop Parties Representative, of a certificate to that effect, it being understood that all such amounts shall be set forth on the certificate. Any funds out of the Offering Amount not released to the Subscription Agent in accordance with Section 6(a)(ii)(A), shall be automatically released to the Backstop Parties such that each Backstop Party shall receive an amount equal to the result of multiplying such Backstop Partys Offering Commitment Percentage by the difference between the Offering Amount and the Unsubscribed Offering Amount, it being understood that all such amounts shall be set forth on a certificate to be delivered to the Escrow Agent by the Backstop Parties Representative.
(iii) unless previously released pursuant to Section 6(a)(i) above, the Escrow Agent shall release to each Backstop Party who deposited a Delayed Draw Amount the amount deposited by such party upon the occurrence of the following events:
(A) within one Business Day following receipt of the Delayed Draw Equity Commitment Agreement (together with only the signature pages executed by the Backstop Parties party thereto) and a certificate from the Backstop Parties Representative setting forth the amount to be released by the Escrow Agent to each such Backstop Party; or
(B) within one Business Day following receipt of a certificate from the Backstop Parties Representative stating that the Bankruptcy Court denied confirmation of the Plan or the Effective Date did not occur within 15 days following the Confirmation Order.
(iv) unless previously released pursuant to Section 6(a)(i) above, as set forth in the first proviso to the first sentence in Section 5.
Upon delivery of the Fund by the Escrow Agent in accordance with this Section 6, this Escrow Agreement shall terminate.
(b) All payments pursuant to this Section 6 shall be made by wire transfer as directed by the Person entitled to receive such payments.
(c) The Escrow Agent shall release the Delayed Draw Equity Commitment Agreement and the signature pages executed by the Backstop Parties party thereto in accordance with the following:
(i) the Escrow Agent shall promptly release to the Backstop Parties Representative:
(A) upon receipt of a certificate from the Backstop Parties Representative stating that the Equity Commitment Agreement has terminated in accordance with its terms;
(B) upon receipt of a certificate from the Backstop Parties Representative stating that three days have elapsed from the entry by the Bankruptcy Court of an order allowing the claims asserted by the indenture trustee for the SFO Notes for make-whole, prepayment, no-call or other similar claims or damages;
(C) on April 19, 2010, unless prior to such date the Escrow Agent has received a certificate from the Backstop Parties Representative stating that the Debtor has executed the Equity Commitment Agreement or the court has granted the Backstop Parties Motion to Terminate Exclusivity; or
(D) on May 17, 2010, unless prior to such date the Delayed Draw Equity Commitment Agreement was released by the Escrow Agent in accordance with Section 6(c)(ii) below.
(ii) unless previously released pursuant to Section 6(c)(i) above, the Delayed Draw Equity Commitment Agreement shall be released to the Backstop Parties party thereto and Six Flags Entertainment Corporation at such time the Escrow Agent has received, on or after the Effective Date, the countersignature of Six Flags Entertainment Corporation to the Delayed Draw Equity Commitment Agreement.
7. Escrow Agent . (a) In acting hereunder, the Escrow Agent shall have only such duties as are specified herein and no implied duties shall be read into this Agreement, and the Escrow Agent shall not be liable for any act done, or omitted to be done, by it in the absence of its gross negligence, willful misconduct, fraud or bad faith.
(b) The Escrow Agent may act in reliance upon any writing or instrument or signature delivered by the Backstop Parties Representative which it, in good faith, believes genuine and may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument and may assume that any person purporting to give any writing, notice, advice or instruction in connection with the provisions hereof has been duly authorized to do so.
(c) The Escrow Agent shall be entitled to consult with legal counsel in the event that a question or dispute arises with regard to the construction of any of the provisions hereof, and shall incur no liability and shall be fully protected in acting in accordance with the advice or opinion of such counsel; provided that the Escrow Agent
has first consulted with and attempted to resolve any question or dispute with the Backstop Parties Representative prior to taking any such action.
(d) The Escrow Agent shall not be required to use its own funds in the performance of any of its obligations or duties or the exercise of any of its rights or powers, and shall not be required to take any action which, in the Escrow Agents sole and absolute judgment, could involve it in expense or liability unless furnished with security and indemnity which it deems, in its sole and absolute discretion, to be satisfactory.
(e) The Backstop Parties shall pay to the Escrow Agent compensation for its services hereunder $2,500 to be deducted from the balance of the Fund. In the event the Escrow Agent incurs any reasonable out-of-pocket cost or expense in connection with the Escrow Account or renders any extraordinary services in connection with the Escrow Account at the request of the Backstop Parties, the Escrow Agent shall be entitled to additional compensation therefor.
(f) The Backstop Parties Representative agrees to indemnify the Escrow Agent, its directors, officers, employees and agents (collectively, the Indemnified Parties), and hold the Indemnified Parties harmless from any and against any and all liabilities, losses, actions, suits or proceedings at law or in equity, and any other expenses, fees or charges, including, without limitation, reasonable attorneys fees and expenses (excluding allocated costs of in-house counsel, if any), which an Indemnified Party may incur or with which it may be threatened by reason of acting as or on behalf of the Escrow Agent under this Escrow Agreement or arising out of the existence of the Escrow Account, except to the extent the same shall be caused by the Escrow Agents gross negligence, willful misconduct or bad faith. The terms of this paragraph (f) shall survive termination of this Agreement.
(g) In the event the Escrow Agent receives conflicting instructions hereunder, the Escrow Agent shall be fully protected in refraining from acting until such conflict is resolved to the satisfaction of the Escrow Agent.
(h) The Escrow Agent may resign as Escrow Agent at any time upon sixty (60) days prior written notice of such resignation, and, upon its resignation, shall thereupon be discharged from any and all further duties and obligations under this Agreement, except for the transference of the Escrow Deposit to the Substitute Escrow Agent (as defined below) by giving notice in writing of such resignation to the Backstop Parties Representative, which notice shall specify a date upon which such resignation shall take effect. Upon the resignation of the Escrow Agent, the Backstop Parties, within thirty (30) business days after the Backstop Parties Representative receiving the foregoing notice from the Escrow Agent, shall designate a substitute escrow agent (the Substitute Escrow Agent), which Substitute Escrow Agent shall, upon its designation and notice of such designation to the Escrow Agent, succeed to all of the rights, duties and obligations of the Escrow Agent hereunder. In the event the Backstop Parties shall not have delivered to the Escrow Agent a written designation of Substitute Escrow Agent within the aforementioned thirty (30) day period, together with the consent to such
designation by the Substitute Escrow Agent, the Escrow Agent may apply to a court of competent jurisdiction to appoint a Substitute Escrow Agent, and the costs of obtaining such appointment shall be reimbursable from the Backstop Parties.
8. Patriot Act Disclosure/Taxpayer Identification Numbers/Tax Reporting.
(a) Patriot Act Disclosure. Section 326 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) requires the Escrow Agent to implement reasonable procedures to verify the identity of any person that opens a new account with it. Accordingly, the Backstop Parties acknowledge that Section 326 of the USA PATRIOT Act and the Escrow Agents identity verification procedures require the Escrow Agent to obtain information which may be used to confirm the Backstop Parties identity including without limitation name, address and organizational documents (identifying information). The Backstop Parties agree to provide the Escrow Agent with and consent to the Escrow Agent obtaining from third parties any such identifying information required as a condition of opening an account with or using any service provided by the Escrow Agent.
(b) Taxpayer Identification Numbers (TIN) . The Backstop Parties have provided the Escrow Agent with their respective fully executed Internal Revenue Service (IRS) Form W-8, or W-9 and/or other required documentation. The Backstop Parties each represent that its correct TIN assigned by the IRS, or any other taxing authority, is set forth in the delivered forms, as well as in the Substitute IRS Form W-9 set forth on the signature page of this Agreement.
(c) Tax Reporting. All interest or other income earned under the Escrow Agreement shall be allocated to each Backstop Party in accordance with its respective Aggregate Amount Commitment Percentage and reported, as and to the extent required by law, by the Escrow Agent to the IRS, or any other taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned from the Escrow Account by the Backstop Parties whether or not said income has been distributed during such year. Any other tax returns required to be filed will be prepared and filed by the Backstop Parties with the IRS and any other taxing authority as required by law. The Backstop Parties acknowledge and agree that the Escrow Agent shall have no responsibility for the preparation and/or filing of any income, franchise or any other tax return with respect to the Fund or any income earned by the Escrow Deposit . The Backstop Parties further acknowledge and agree that any taxes payable from the income earned on the investment of any sums held in the Escrow Deposit shall be paid by the Backstop Parties in accordance with their respective Aggregate Amount Commitment Percentage. In the absence of written direction from the Backstop Parties, all proceeds of the Fund shall be retained in the Fund and reinvested from time to time by the Escrow Agent as provided in this Agreement. The Escrow Agent shall withhold any taxes it deems appropriate, including but not limited to required withholding in the absence of proper tax documentation, and shall remit such taxes to the appropriate authorities.
9. Notices. All communications hereunder shall be in writing and shall be deemed to be duly given and received:
(a) upon delivery, if delivered personally, or upon confirmed transmittal, if by facsimile; or
(b) on the next Business Day (as hereinafter defined) if sent by overnight courier;
to the appropriate notice address set forth below or at such other address as any party hereto may have furnished to the other parties in writing by registered mail, return receipt requested.
Notwithstanding the above, in the case of communications delivered to the Escrow Agent pursuant to (a) and (b) of this Section 9, such communications shall be deemed to have been given to the Escrow Agent on the date received by an officer of the Escrow Agent or any employee of the Escrow Agent who reports directly to any such officer at the above-referenced office. In the event that the Escrow Agent, in its sole discretion, shall determine that an emergency exists, the Escrow Agent may use such other means of communication as the Escrow Agent deems appropriate. Business Day shall mean any day other than a Saturday, Sunday or any other day on which the Escrow Agent located at the notice address set forth above is authorized or required by law or executive order to remain closed.
10. Security Procedures. In the event funds transfer instructions are given (other than in writing at the time of execution of this Escrow Agreement), whether in writing, by facsimile or otherwise, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Schedule II, and the Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by the Escrow Agent. If the Escrow Agent is unable to contact any of the authorized representatives identified in Schedule II, the Escrow Agent is hereby authorized to seek confirmation of such instructions by telephone call-back to any one or more of the Backstop Parties Representatives executive officers, (Executive Officers), as the case may be, which shall include the title of Chief Financial Officer, as the Escrow Agent may select. Such Executive Officer shall deliver to the Escrow Agent a fully executed incumbency certificate, and the Escrow Agent may rely upon the confirmation of anyone purporting to be any such officer. The Escrow Agent and the beneficiarys bank in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by the Backstop Parties to identify (a) the beneficiary, (b) the beneficiarys bank, or (c) an intermediary bank. The Escrow Agent may apply any of the escrowed funds for any payment order it executes using any such identifying number, even when its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiarys bank or an intermediary bank designated. The Backstop Parties acknowledge that these security procedures are commercially reasonable.
11. Compliance with Court Orders. In the event that any escrow property shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered by any court order affecting the property deposited under this Escrow Agreement, the Escrow Agent is hereby expressly authorized, in its sole discretion, to obey and comply with all writs, orders or decrees so entered or issued, which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction; provided that the Escrow Agent shall notify the Backstop Parties Representative of any such event and provided further that the Backstop Parties Representative shall be given the opportunity to object to such proceedings with the help of a legal counsel of its choosing, and in the event that the Escrow Agent obeys or complies with any such writ, order or decree it shall not be liable to any of the parties hereto or to any other person, entity, firm or corporation, by reason of such compliance notwithstanding such writ, order or decree be subsequently reversed, modified, annulled, set aside or vacated.
12. Miscellaneous. The provisions of this Escrow Agreement may be waived, altered, amended or supplemented, in whole or in part, only by a writing signed by the Escrow Agent and the Backstop Parties. Neither this Escrow Agreement nor any right or interest hereunder may be assigned in whole or in part by the Escrow Agent or any party, without the prior consent of the Escrow Agent and the other parties. This Escrow Agreement shall be governed by and construed under the laws of the State of New York without regard to its conflicts of laws principles. Each party to this Escrow Agreement
irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the courts located in the State of New York. The parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Escrow Agreement. No party to this Escrow Agreement is liable to any other party for losses due to, or if it is unable to perform its obligations under the terms of this Escrow Agreement because of, acts of God, fire, war, terrorism, floods, strikes, electrical outages, equipment or transmission failure, or other causes reasonably beyond its control. This Escrow Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the parties to this Escrow Agreement may be transmitted by facsimile, and such facsimile will, for all purposes, be deemed to be the original signature of such party whose signature it reproduces, and will be binding upon such party. If any provision of this Escrow Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction. A person who is not a party to this Agreement shall have no right to enforce any term of this Escrow Agreement. The Backstop Parties represent, warrant and covenant that each document, notice, instruction or request provided by such party to Escrow Agent shall comply with applicable laws and regulations. Where, however, the conflicting provisions of any such applicable law may be waived, they are hereby irrevocably waived by the parties hereto to the fullest extent permitted by law, to the end that this Escrow Agreement shall be enforced as written. Nothing in this Escrow Agreement, whether express or implied, shall be construed to give to any person or entity other than the Escrow Agent and the Backstop Parties any legal or equitable right, remedy, interest or claim under or in respect of this Escrow Agreement or any funds escrowed hereunder.
IN WITNESS WHEREOF , the parties hereto have executed this Escrow Agreement as of the date set forth above.
Stark Master Fund Ltd. |
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By: Stark Offshore Management LLC, its investment manager |
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/s/ Richard Barnard |
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Name: Richard Barnard |
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Title: Authorized Signatory |
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Stark Criterion Master Fund Ltd. |
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By: Stark Criterion Management LLC, its investment manager |
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/s/ Richard Barnard |
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Name: Richard Barnard |
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Title: Authorized Signatory |
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Kivu Investment Fund Limited |
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By |
/s/ Martin Lancaster |
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Name: Martin Lancaster |
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Title: Director |
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CQS Convertible and Quantitative Strategies Master Fund Limited |
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By |
/s/ Tara Glaser |
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Name: Tara Glaser |
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Title: Authorised Signatory |
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CQS Directional Opportunities Master Fund Limited |
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By |
/s/ Tara Glaser |
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Name: Tara Glaser |
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Title: Authorised Signatory |
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Credit Suisse Securities (USA) LLC |
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By |
/s/ Robert J. MacNaughton |
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Name: Robert MacNaughton |
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Title: Managing Director |
Capital Ventures International |
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By: Susquehanna Advisors Group, Inc., its authorized agent |
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By |
/s/ Joel Greenberg |
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Name: Joel Greenberg |
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Title: Vice President |
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Mariner Tricadia Credit Strategies Master Fund Ltd. |
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By: Tricadia Capital Management, LLC, as Investment Manager |
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By |
/s/ Barry Monday |
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Name: Barry Monday |
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Title: Chief Administrative Officer |
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Tricadia Distressed and Special Situations Master Fund Ltd. |
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By: Tricadia Capital Management, LLC, as Investment Manager |
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By |
/s/ Barry Monday |
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Name: Barry Monday |
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Title: Chief Administrative Officer |
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Structured Credit Opportunities Fund II, LP |
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By: Tricadia Capital Management, LLC, as Investment Manager |
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By |
/s/ Barry Monday |
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Name: Barry Monday |
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Title: Chief Administrative Officer |
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1798 Relative Value Master Fund, Ltd. |
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By |
/s/ Gary Lehrman |
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Name: Gary Lehrman |
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Title: PM |
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Altai Capital Master Fund, Ltd. |
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By: Altai Capital Management, L.P., its investment advisor |
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By |
/s/ Steven V. Tesoriere |
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Name: Steven V. Tesoriere |
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Title: Managing Principal |
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H Partners Management LLC |
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By |
/s/ Lloyd Blumberg |
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Name: Lloyd Blumberg |
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Title: Authorized Signatory |
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BHR Master Fund, Ltd. |
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By |
/s/ Michael Thompson |
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Name: Michael Thompson |
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Title: MD |
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BHCO Master, Ltd. |
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By |
/s/ Michael Thompson |
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Name: Michael Thompson |
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Title: MD |
Pentwater Growth Fund Ltd. |
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By: Pentwater Capital Management LP, its investment manager |
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By |
/s/ Neil Nenadovic |
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Name: Neil Nenadovic |
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Title: Chief Financial Officer |
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Pentwater Equity Opportunities Master Fund Ltd. |
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By: Pentwater Capital Management LP, its investment manager |
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By |
/s/ Neil Nenadovic |
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Name: Neil Nenadovic |
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Title: Chief Financial Officer |
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Oceana Master Fund Ltd. |
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By: Pentwater Capital Management LP, its investment manager |
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By |
/s/ Neil Nenadovic |
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Name: Neil Nenadovic |
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Title: Chief Financial Officer |
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LMA SPC on behalf of MAP 98 Segregated Portfolio |
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By: Pentwater Capital Management LP, its investment manager |
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By |
/s/ Neil Nenadovic |
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Name: Neil Nenadovic |
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Title: Chief Financial Officer |
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Fortelus Capital Management LLP |
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Title: |
WILMINGTON TRUST FSB |
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as Escrow Agent |
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Title: |
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Exhibit B
Form of Shapiro Amended and Restated Employment Agreement
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the Agreement), dated as of April 1, 2010, is entered into by and among Six Flags, Inc., a Delaware corporation (SF), Six Flags Operations Inc., a Delaware corporation, and Six Flags Theme Parks Inc., a Delaware corporation (collectively, the Company), and Mark Shapiro (the Executive).
W I T N E S S E T H :
WHEREAS, Executive is currently employed by the Company pursuant to that certain Employment Agreement between Executive and the Company dated as of April 1, 2009, as amended (the Existing Employment Agreement);
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Agreement; and
WHEREAS, this Agreement shall supersede and replace the Existing Employment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, it is hereby agreed as follows:
reasonable shall be substituted for the stated period, scope or area, and that the court or arbitrator shall revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. If any of the Restrictive Covenants are determined to be wholly or partially unenforceable in any jurisdiction, such determination shall not be a bar to or in any way diminish the Companys right to enforce any such covenant in any other jurisdiction.
If to the Company:
Six
Flags, Inc.
1540 Broadway; 15th Floor
New York, New York 10036
Attention: James M. Coughlin, Esq.
Fax: (212) 354-3089
If to Executive:
Mark Shapiro
c/o Six Flags, Inc.
1540 Broadway; 15th Floor
New York, New York 10036
following Executives death or judicially determined incompetence by giving the Company written notice thereof. In the event of Executives death or a judicial determination of his incompetence, reference in this Agreement to Executive shall be deemed, where appropriate, to refer to his beneficiary, estate or other legal representative.
the extent Executive would otherwise be entitled to any benefit (other than a payment) during the six (6) months beginning on termination of Executives employment that would be subject to the Section 409A additional tax, the benefit will be delayed and will begin being provided on the earlier of the first day following the six (6) month anniversary of Executives Date of Termination or death. Any payment or benefit due upon a termination of employment that represents a deferral of compensation within the meaning of Section 409A shall be paid or provided only upon a separation from service as defined in Treas. Reg. § 1.409A-1(h). Each payment made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A. Amounts payable under this Agreement shall be deemed not to be a deferral of compensation subject to Section 409A to the extent provided in the exceptions in Treasury Regulation §§ 1.409A-1(b)(4) (short-term deferrals) and (b)(9) (separation pay plans, including the exception under subparagraph (iii)) and other applicable provisions of Treasury Regulation § 1.409A-1 through A-6. Notwithstanding anything to the contrary in this Agreement or elsewhere, any payment or benefit under this Agreement or otherwise that is exempt from Section 409A pursuant to Treasury Regulation § 1.409A-1(b)(9)(v)(A) or (C) (relating to certain reimbursements and in-kind benefits) shall be paid or provided only to the extent that the expenses are not incurred, or the benefits are not provided, beyond the last day of the second calendar year following the calendar year in which Executives separation from service occurs; and provided further that such expenses are reimbursed no later than the last day of the third calendar year following the calendar year in which Executives separation from service occurs. To the extent any expense reimbursement (including without limitation any reimbursement of interest or penalties related to taxes) or the provision of any in-kind benefit is determined to be subject to Section 409A (and not exempt pursuant to the prior sentence or otherwise), the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other calendar year (except for any life-time or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit .
IN WITNESS WHEREOF, Executive and the Company have caused this Agreement to be executed as of the date first above written.
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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By: |
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SIX FLAGS THEME PARKS INC. |
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By: |
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Mark Shapiro |
EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Executive to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Adjusted EBITDA: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
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Performance Level |
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0.5 |
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Actual Performance equals 90% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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0.75 |
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Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.0 |
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Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.5 |
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Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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2.0 |
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Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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Determined by interpolation between 0.5 and 2.0 |
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Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If actual EBITDA for a given fiscal year is or exceeds 110% of Budgeted EBITDA, then Executive shall receive the Maximum Bonus notwithstanding the results of the other Performance Parameters.
6. Notwithstanding anything to the contrary above, Executive shall not receive an annual bonus greater than the Maximum Bonus.
7. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Exhibit C
Form of Amendments to Employment Agreements
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and Jeffrey Speed. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(v) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. Exhibit A to the Agreement is hereby amended in its entirety to read as provided in Exhibit A to this Amendment.
4. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
5. Except as set forth in this Amendment, the Agreement remains in full force and effect.
(Signature page follows)
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Jeffrey Speed |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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By: |
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Name: |
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Title: |
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EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Chief Executive Officer to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Adjusted EBITDA: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
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Performance Level |
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0.5 |
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Actual Performance equals 90% of the Performance Parameter (including Budgeted |
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Adjusted EBITDA) |
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0.75 |
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Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.0 |
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Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.5 |
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Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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2.0 |
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Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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Determined by interpolation between 0.5 and 2.0 |
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Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and Michael Antinoro. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(iv) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. Exhibit A to the Agreement is hereby amended in its entirety to read as provided in Exhibit A to this Amendment.
4. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
5. Except as set forth in this Amendment, the Agreement remains in full force and effect.
(Signature page follows)
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Michael Antinoro |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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By: |
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Name: |
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Title: |
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EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Chief Executive Officer to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Adjusted EBITDA: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
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Performance Level |
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0.5 |
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Actual Performance equals 90% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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0.75 |
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Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
1.0 |
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Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.5 |
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Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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2.0 |
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Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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Determined by interpolation between 0.5 and 2.0 |
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Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and Louis Koskovolis. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(iv) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. Exhibit A to the Agreement is hereby amended in its entirety to read as provided in Exhibit A to this Amendment.
4. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
5. Except as set forth in this Amendment, the Agreement remains in full force and effect.
(Signature page follows)
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Louis Koskovolis |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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By: |
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Name: |
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Title: |
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EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship Revenue: Total budgeted sponsorship revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Chief Executive Officer to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Sponsorship Revenue: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA, provided that if actual Sponsorship Revenue equals or exceeds 100% of Budgeted Sponsorship Revenue for the fiscal year, Executive shall be entitled to receive 50% of the Target Bonus.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
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Performance Level |
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0.5 |
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Actual Performance equals 90% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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0.75 |
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Actual Performance equals 95% of the |
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Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.0 |
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Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.5 |
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Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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2.0 |
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Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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Determined by interpolation between 0.5 and 2.0 |
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Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and Mark Quenzel. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(iv) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. Exhibit A to the Agreement is hereby amended in its entirety to read as provided in Exhibit A to this Amendment.
4. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
5. Except as set forth in this Amendment, the Agreement remains in full force and effect.
(Signature page follows)
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Mark Quenzel |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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By: |
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Name: |
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Title: |
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EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Chief Executive Officer to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Adjusted EBITDA: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
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Performance Level |
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0.5 |
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Actual Performance equals 90% of the Performance Parameter (including Budgeted |
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Adjusted EBITDA) |
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0.75 |
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Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.0 |
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Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.5 |
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Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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2.0 |
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Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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Determined by interpolation between 0.5 and 2.0 |
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Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and Andrew Schleimer. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(iv) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. Exhibit A to the Agreement is hereby amended in its entirety to read as provided in Exhibit A to this Amendment.
4. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
5. Except as set forth in this Amendment, the Agreement remains in full force and effect.
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Andrew Schleimer |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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EXHIBIT A
Annual Bonus Parameters
Definitions:
Performance Parameters shall mean the following, as determined annually by the Board:
(a) Budgeted Adjusted EBITDA: Total budgeted Adjusted EBITDA (as defined in the Companys earnings releases).
(b) Budgeted Free Cash Flow: Total Budgeted Free Cash Flow (as defined in the Companys earnings releases).
(c) Budgeted Attendance: Total budgeted attendance.
(d) Budgeted In-Park Net Revenue Per Capita: Total budgeted in-park net revenue per capita.
(e) Budgeted Sponsorship/Licensing Revenue: Total budgeted sponsorship/licensing revenue.
Rules for Calculation of Annual Bonus:
Any annual bonus payable under Section 3(b) of this Agreement, shall be determined annually by the compensation committee of the Board (the Committee) in accordance with the rules below. All determinations by the Committee shall be final and binding on Executive. All Adjusted EBITDA and other bonus targets shall be determined by reference to the Companys Budget for each year as approved by the Board. The Committee shall work with the Chief Executive Officer to determine appropriate bonus targets for any items that are not specifically contained in the Companys Budget each year.
1. Subject to the other rules, the Performance Parameters shall be weighted as follows in determining the amount of the annual bonus: Budgeted Adjusted EBITDA: 50% and 12.5% for each of the remaining Performance Parameters.
2. No annual bonus whatsoever shall be payable in respect of a given fiscal year if actual Adjusted EBITDA for such year is less than 90% of Budgeted Adjusted EBITDA.
3. If actual results for a given Performance Parameter are less than 90% of the Performance Parameter, no amount shall be payable in respect of such Performance Parameter.
4. If actual Adjusted EBITDA for a given fiscal year equals or exceeds 90% of Budgeted Adjusted EBITDA, and the results for any given Performance Parameter (including Budgeted Adjusted EBITDA) equals or exceeds 90% of the Performance Parameter, then the amount payable in respect of such parameter shall be determined by multiplying the product of the Target Bonus and the weight ascribed to the Performance Parameter in Rule 1 above by the appropriate multiplier below:
Multiplier |
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Performance Level |
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0.5 |
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Actual Performance equals 90% of the Performance Parameter (including Budgeted |
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Adjusted EBITDA) |
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0.75 |
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Actual Performance equals 95% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.0 |
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Actual Performance equals 100% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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1.5 |
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Actual Performance equals 105% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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2.0 |
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Actual Performance equals or exceeds 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
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Determined by interpolation between 0.5 and 2.0 |
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Actual Performance exceeds 90% but is below 110% of the Performance Parameter (including Budgeted Adjusted EBITDA) |
5. If Executives employment with the Company ceases upon expiration of the Term, Executive shall be entitled to a lump sum payment, within ten (10) business days, equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the Date of Termination divided by the total number of days in the year of termination.
Amendment No. 1
to
Employment Agreement
The Amendment No. 1, dated as of April 1, 2010 ( Amendment ), to the Employment Agreement, dated as of April 1, 2009 (the Agreement ) by and among Six Flags, Inc., Six Flags Operations Inc. and Six Flags Theme Parks Inc. and James Coughlin. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
WHEREAS, Executive is currently employed by SF pursuant to the Agreement;
WHEREAS, the Company and Executive desire to modify the terms and conditions of Executives continued employment by entering into this Amendment; and
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, it is hereby agreed as follows:
1. Section 3(d) of the Agreement is hereby amended in its entirety to read as follows:
(d) Equity Awards . Promptly following a Triggering Event, SF shall issue to Executive under the Long Term Incentive Plan (as described in the Companys Modified Fourth Amended Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, as it may be further amended, filed on April 1, 2010 in the United States Bankruptcy Court for the District of Delaware (the Plan)) restricted shares of SF Common Stock and options to purchase shares of common stock in an amount and with such vesting and other terms as mutually agreed to by the Chief Executive Officer and the Board.
2. Section 4(c)(iii) is hereby amended to by adding the following proviso at the end thereof:
; provided , however , that any such occurrence resulting directly from the consummation of the transactions contemplated by the Plan shall not be deemed to constitute Good Reason.
3. This Amendment shall become effective upon the entry of an order of the United States Bankruptcy Court for the District of Delaware, pursuant to 11 U.S.C. § 365, authorizing the assumption hereof, which order is contemplated to be part of an order confirming the Plan, pursuant to 11 U.S.C. § 1129. Until such time as an order authorizing such assumption is entered, the Agreement shall remain in full force and effect.
4. Except as set forth in this Amendment, the Agreement remains in full force and effect.
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James Coughlin |
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SIX FLAGS, INC. |
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SIX FLAGS OPERATIONS INC. |
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SIX FLAGS THEME PARKS INC. |
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By: |
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Title: |
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Exhibit B
Treatment of SFI Noteholders that are Non-Accredited Investors
For the purpose hereof, the Offering Net Value shall be $29.4 million and the Unaccredited Pro Rata Share shall be a fraction, the numerator of which shall be the face value of the SFI Notes held by an Unaccredited SFI Noteholder and the denominator of which shall be $868.3 million.
Within five business days after entry of the Confirmation Order , the Company shall send to each SFI Noteholder who did not return an Accredited Investor Questionnaire in accordance with the Rights Offering Procedures on or before April 21, 2010 (excluding any SFI Noteholder who was deemed to return such questionnaire on or before April 21, 2010 pursuant to Section 2.11 of the Rights Offering Procedures) (each, an Unconfirmed Holder ) (i) a questionnaire seeking certification that such Unconfirmed Holder is not an Accredited Investor (the Non-Accredited Investor Questionnaire ) and (ii) a notice setting forth the rights of the Unaccredited SFI Noteholders with respect to such holders Unaccredited Pro Rata Share of the Offering Net Value, both of which shall be in form and substance reasonably acceptable to the Bank of New York Mellon, as Indenture Trustee ( BNY ). Each Unconfirmed Holder who returns a completed Non-Accredited Investor Questionnaire to the reasonable satisfaction of the Debtors, the Majority Backstop Purchasers and BNY confirming its status as a Non-Accredited Investor by no later than twenty days after the notice and questionnaire described above are sent shall be considered an Unaccredited SFI Noteholder .
The Offering Net Value shall be paid by Reorganized SFI in all cash as follows : each Unaccredited SFI Noteholder shall have the right to receive such Unaccredited SFI Noteholders Unaccredited Pro Rata Share of the Offering Net Value; provided, however, that if the aggregate amount of the Offering Net Value to be distributed to the Unaccredited SFI Noteholders would exceed $2.94 million (the Offering Net Value Cash Cap ), then the aggregate amount to be distributed to the Unaccredited SFI Noteholders shall be limited to the Offering Net Value Cash Cap, which shall be distributed to the Unaccredited SFI Noteholders based on each holders Unaccredited Pro Rata Share.
Capitalized terms used but not defined herein shall have the meaning ascribed thereto in the Plan and the Rights Offering Procedures.